SOUTH AFRICAN

FAMILY LAW

FOURTH EDITION
SOUTH AFRICAN
FAMILY LAW

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

HANNERETHA KRUGER
BIur LLB (UOFS) LLD (Unisa)
Professor of Private Law, University of South Africa

FOURTH EDITION
Members of the LexisNexis Group worldwide
South Africa LexisNexis (Pty) Ltd
DURBAN 215 Peter Mokaba Road (North Ridge Road), Morningside, Durban, 4001
JOHANNESBURG Building No. 9, Harrowdene Office Park, 124 Western Service Road, Woodmead, 2191
CAPE TOWN Office Floor 2, North Lobby, Boulevard Place, Heron Close, Century City, 7441
www.lexisnexis.co.za
Australia LexisNexis, CHATSWOOD, New South Wales
Austria LexisNexis Verlag ARD Orac, VIENNA
Benelux LexisNexis Benelux, AMSTERDAM
Canada LexisNexis Canada, MARKHAM, Ontario
China LexisNexis, BEIJING
France LexisNexis, PARIS
Germany LexisNexis Germany, MÜNSTER
Hong Kong LexisNexis, HONG KONG
India LexisNexis, NEW DELHI
Italy Giuffrè Editore, MILAN
Japan LexisNexis, TOKYO
Korea LexisNexis, SEOUL
Malaysia LexisNexis, KUALA LUMPUR
New Zealand LexisNexis, WELLINGTON
Poland LexisNexis Poland, WARSAW
Singapore LexisNexis, SINGAPORE
United Kingdom LexisNexis, LONDON
USA LexisNexis, DAYTON, Ohio

© 2015

ISBN 978 0 409 12059 2

E-BOOK ISBN 978 0 409 12060 8

First Edition 1999

Second Edition 2004
Reprinted 2005, 2006, 2007
Third Edition 2010

Copyright subsists in this work. No part of this work may be reproduced in any form or by any means without
the publisher’s written permission. Any unauthorised reproduction of this work will constitute a copyright
infringement and render the doer liable under both civil and criminal law.
Whilst every effort has been made to ensure that the information published in this work is accurate, the editors,
authors, writers, contributors, publishers and printers take no responsibility for any loss or damage suffered by
any person as a result of the reliance upon the information contained therein.

Editor:Lisa Sandford
Technical Editor: Liz Bisschoff

Printed in South Africa by Interpak Books Pietermaritzburg

 TABLE OF CONTENTS

Page
PREFACE ................................................................................................................................. xvii
PART 1: CIVIL MARRIAGES
1 INTRODUCTION ............................................................................................................. 3
1.1 The definition of the family .................................................................................... 3
1.2 The scope of this book ............................................................................................. 3
2 THE ENGAGEMENT ........................................................................................................ 5
2.1 Introduction ............................................................................................................. 5
2.2 The requirements for a valid engagement ............................................................. 5
2.3 The content and consequences of the engagement .............................................. 6
2.4 Termination of the engagement ............................................................................. 6
2.4.1 General ......................................................................................................... 6
2.4.2 The consequences of termination of the engagement ............................. 7
(a) Delictual damages for personality infringement ............................... 7
(b) Contractual damages for breach of promise ..................................... 8
(c) Return of the engagement gifts .......................................................... 9
2.5 Satisfaction and damages on the ground of seduction.......................................... 10
3 THE LEGAL REQUIREMENTS FOR A CIVIL MARRIAGE .......................................... 13
3.1 Introduction ............................................................................................................. 13
3.2 Capacity to act .......................................................................................................... 14
3.2.1 General ......................................................................................................... 14
3.2.2 Declared prodigals ...................................................................................... 14
3.2.3 Mentally ill persons...................................................................................... 15
3.2.4 Persons who have been placed under curatorship because they are
incapable of managing their own affairs .................................................... 15
3.2.5 Minors .......................................................................................................... 16
(a) General ................................................................................................. 16
(b) Consent which is required for the civil marriage of a minor ........... 16
(c) Instances in which a minor requires no consent to enter into a
civil marriage ....................................................................................... 19
(d) The effect of absence of the necessary consent ................................. 20
3.3 Agreement ................................................................................................................ 24
3.3.1 General ......................................................................................................... 24
3.3.2 Mistake ......................................................................................................... 24
3.3.3 Misrepresentation ........................................................................................ 25
3.3.4 Duress ........................................................................................................... 25
3.3.5 Undue influence.......................................................................................... 25
v
vi South African Family Law

Page
3.4
Lawfulness................................................................................................................. 25
3.4.1 General ......................................................................................................... 25
3.4.2 An existing civil or customary marriage or civil union ............................. 25
3.4.3 Persons who are of the same sex ................................................................ 26
3.4.4 Adoptive parents and their adopted children ........................................... 26
3.4.5 Persons who are within the prohibited degrees of relationship............... 26
(a) General ................................................................................................. 26
(b) Blood relations in the direct line ....................................................... 27
(c) Collateral blood relations ................................................................... 27
(d) Relations by affinity in the direct line ................................................ 28
(e) Relations by affinity in the collateral line .......................................... 28
3.4.6 Legal guardians and their wards................................................................. 29
3.4.7 Persons who belong to different race groups ............................................ 29
3.5 The prescribed formalities ...................................................................................... 30
3.5.1 Marriage officers .......................................................................................... 30
3.5.2 Formalities preceding the marriage ceremony ......................................... 31
3.5.3 Formalities during the marriage ceremony ............................................... 31
3.5.4 Registration of the civil marriage ............................................................... 32
4 VOID, VOIDABLE AND PUTATIVE CIVIL MARRIAGES ............................................. 33
4.1 Void civil marriages .................................................................................................. 33
4.1.1 The definition of a void marriage .............................................................. 33
4.1.2 The grounds for nullity ............................................................................... 33
4.1.3 The consequences of a void marriage ........................................................ 34
4.2 Voidable civil marriages ........................................................................................... 34
4.2.1 The definition of a voidable marriage ....................................................... 34
4.2.2 The grounds for setting aside a voidable civil marriage ........................... 34
(a) Minority ................................................................................................ 34
(b) Material mistake .................................................................................. 35
(c) Duress ................................................................................................... 35
(d) Undue influence.................................................................................. 35
(e) Stuprum ................................................................................................. 35
(f) Impotence ............................................................................................ 36
(g) Sterility ................................................................................................. 36
4.2.3 The consequences of a voidable civil marriage ......................................... 37
4.3 Putative marriages .................................................................................................... 38
4.3.1 The definition of a putative marriage ........................................................ 38
4.3.2 The requirements for a putative marriage................................................. 38
4.3.3 The consequences of a putative marriage ................................................. 39
(a) General ................................................................................................. 39
(b) Children born of a putative marriage ................................................ 39
(c) The patrimonial consequences of a putative marriage ..................... 39
5 THE INVARIABLE CONSEQUENCES OF A CIVIL MARRIAGE ................................. 41
5.1 Introduction ............................................................................................................. 41
5.2 The status of the spouses ......................................................................................... 41
5.3 Consortium omnis vitae ............................................................................................... 42
5.3.1 The content and protection of consortium omnis vitae ............................... 42
5.3.2 The relationship between consortium omnis vitae, the right to family life
and the right to dignity ............................................................................... 43
5.4 Spousal maintenance ............................................................................................... 44
5.4.1 The reciprocal duty of support between spouses ...................................... 44
(a) General ................................................................................................. 44
(b) Liability as against third parties .......................................................... 45
(c) Termination of the duty of support ................................................... 45
 Table of contents vii

Page
5.4.2
Household necessaries ................................................................................ 46
(a) General ................................................................................................. 46
(b) The requirements for the capacity to incur debts for household
necessaries ............................................................................................ 47
(c) Revocation or limitation of a spouse’s capacity to purchase
household necessaries ......................................................................... 48
5.4.3 The Maintenance Act 99 of 1998................................................................ 49
(a) General ................................................................................................. 49
(b) The maintenance complaint and maintenance enquiry .................. 49
(c) The orders the court may make ......................................................... 51
(d) Appeals ................................................................................................. 52
(e) Enforcement of a maintenance order................................................ 52
5.5 The matrimonial home............................................................................................ 57
5.6 Donations between spouses ..................................................................................... 58
5.7 The family name....................................................................................................... 59
5.8 Headship of the family ............................................................................................. 59
6 THE VARIABLE CONSEQUENCES OF A CIVIL MARRIAGE –
MARRIAGE IN COMMUNITY OF PROPERTY .............................................................. 61
6.1 Introduction ............................................................................................................. 61
6.2 Cases in which community of property does not arise .......................................... 61
6.3 The nature of universal community of property .................................................... 62
6.4 The content of universal community of property .................................................. 63
6.4.1 Assets ............................................................................................................ 63
(a) General ................................................................................................. 63
(b) Separate assets ..................................................................................... 64
(c) Attachment of separate assets ............................................................. 66
6.4.2 Liabilities ...................................................................................................... 67
(a) General ................................................................................................. 67
(b) Antenuptial debts ................................................................................ 67
(c) Debts incurred during the subsistence of the marriage ................... 68
(d) Debts which are outstanding at the dissolution of the
joint estate ............................................................................................ 69
6.5 Administration of the joint estate ........................................................................... 70
6.5.1 Abolition of the marital power ................................................................... 70
6.5.2 The principle of equal administration of the joint estate ......................... 71
6.5.3 Acts for which the consent of both spouses is required ............................ 71
(a) General ................................................................................................. 71
(b) Prior written consent, attested by two competent witnesses,
in respect of each transaction separately ........................................... 72
(c) Written consent, attested by two competent witnesses,
in respect of each transaction separately ........................................... 72
(d) Written consent without any further requirements .......................... 73
(e) Oral or tacit consent............................................................................ 73
6.5.4 Acts for which the other spouse’s consent is unnecessary ........................ 74
6.5.5 Protective measures in respect of the administration of the
joint estate .................................................................................................... 75
(a) Protection of third parties .................................................................. 75
(b) Protection of the spouses as between themselves .............................. 77
6.5.6 Capacity to litigate ....................................................................................... 81
(a) General ................................................................................................. 81
(b) Insolvency............................................................................................. 81
(c) Suing for joint debts ............................................................................ 82
viii South African Family Law

Page
7 THE VARIABLE CONSEQUENCES OF A CIVIL MARRIAGE –
MARRIAGE OUT OF COMMUNITY OF PROPERTY.................................................... 83
7.1 The antenuptial contract ......................................................................................... 83
7.1.1 The purpose of an antenuptial contract .................................................... 83
7.1.2 The formalities for the creation of a valid antenuptial contract .............. 84
(a) General ................................................................................................. 84
(b) Postnuptial execution and registration of an antenuptial
contract ................................................................................................ 84
7.1.3 Additional requirements which apply to the antenuptial contract of
a minor ......................................................................................................... 85
7.1.4 The contents of an antenuptial contract ................................................... 86
(a) General ................................................................................................. 86
(b) The matrimonial property system ...................................................... 86
(c) A right of recourse in respect of household necessaries .................. 86
(d) Succession ............................................................................................ 87
(e) Marriage settlements ........................................................................... 87
7.1.5 Interpretation of an antenuptial contract ................................................. 88
7.1.6 Cancellation and amendment of an antenuptial contract ....................... 88
7.1.7 Termination of an antenuptial contract .................................................... 90
7.2 Marriage out of community of property and community of profit and loss
without the accrual system ....................................................................................... 90
7.3 Marriage out of community of property with retention of community of
profit and loss ........................................................................................................... 91
7.4 The accrual system ................................................................................................... 91
7.4.1 Introduction................................................................................................. 91
7.4.2 Marriages to which the accrual system applies .......................................... 92
7.4.3 When and how accrual sharing takes place ............................................... 92
(a) General ................................................................................................. 92
(b) The accrual claim ................................................................................ 92
(c) The difference between the accrual claim and the right to
accrual sharing..................................................................................... 93
(d) The difference between accrual sharing and sharing of assets ........ 93
7.4.4 Calculating the accrual................................................................................ 94
(a) General ................................................................................................. 94
(b) The commencement value (or the initial value) .............................. 94
(c) Assets which do not form part of the accrual .................................... 95
(d) The date on which the value of a spouse’s estate is to be
calculated for purposes of accrual sharing ........................................ 97
(e) An example of the accrual calculation............................................... 98
7.4.5 Protection of a spouse’s right to share in the accrual ............................... 99
7.4.6 Satisfaction of the accrual claim ................................................................. 101
7.4.7 Renouncing the accrual claim .................................................................... 101
7.5 Advantages and disadvantages of the main matrimonial property systems.......... 102
7.5.1 General ......................................................................................................... 102
7.5.2 Marriage in community of property ........................................................... 102
7.5.3 Complete separation of property ............................................................... 102
7.5.4 The accrual system ...................................................................................... 102
8 ALTERATION OF THE MATRIMONIAL PROPERTY SYSTEM................................... 105
8.1 The principle of immutability in matrimonial property law ................................. 105
8.2 Court-sanctioned alteration of the matrimonial property system in terms of
section 21(1) of the Matrimonial Property Act 88 of 1984 ................................... 106
8.2.1 General ......................................................................................................... 106
8.2.2 Statutory requirements................................................................................ 106
 Table of contents ix

Page
8.2.3
Procedural requirements ............................................................................ 107
(a) Notice ................................................................................................... 108
(b) The financial position of the spouses................................................. 108
(c) Sound reasons ...................................................................................... 108
(d) Absence of prejudice ........................................................................... 108
(e) Domicile and residence ...................................................................... 108
8.2.4 Retroactive alteration .................................................................................. 108
8.2.5 The effect that changing from community of property to separation
of property has on jointly owned property ................................................ 109
8.3 Extra-judicial alteration of the matrimonial property system ............................... 109
9 DISSOLUTION OF A CIVIL MARRIAGE – GENERAL ................................................. 113
9.1 The ways in which a marriage is dissolved .............................................................. 113
9.2 Judicial separation .................................................................................................... 113
9.3 Extra-judicial separation .......................................................................................... 113
10 DISSOLUTION OF A CIVIL MARRIAGE BY DEATH ................................................... 115
10.1 Marriage in community of property ....................................................................... 115
10.2 Marriage out of community of property ................................................................. 116
10.3 Maintenance of Surviving Spouses Act 27 of 1990 ................................................. 116
10.3.1 General ......................................................................................................... 116
10.3.2 Reasonable maintenance needs ................................................................. 117
10.3.3 Disposal of the maintenance claim ............................................................ 117
10.3.4 The order of preference ............................................................................. 118
11 THE GROUNDS FOR DIVORCE .................................................................................... 119
11.1 Introduction ............................................................................................................. 119
11.2 Irretrievable breakdown of the marriage ............................................................... 119
11.2.1 The test for irretrievable breakdown.......................................................... 119
11.2.2 The guidelines in section 4(2).................................................................... 121
(a) General ................................................................................................. 121
(b) Section 4(2)(a): The parties have not lived together as husband
and wife for a continuous period of at least one year immediately
prior to the date of the institution of the divorce action .................. 121
(c) Section 4(2)(b): The defendant has committed adultery and
the plaintiff finds it irreconcilable with a continued marriage
relationship .......................................................................................... 121
(d) Section 4(2)(c): A court has declared the defendant a
habitual criminal and the defendant is undergoing
imprisonment as a result of the declaration ...................................... 122
11.3 Incurable mental illness or continuous unconsciousness ..................................... 122
11.3.1 General ......................................................................................................... 122
11.3.2 The criteria contained in section 5 ............................................................ 122
11.3.3 Divorcing a mentally ill or unconscious spouse in terms of section 4
instead of section 5 ...................................................................................... 123
11.3.4 Special rules in respect of divorce on the ground of incurable
mental illness and continuous unconsciousness ....................................... 123
(a) Section 5(3) ......................................................................................... 123
(b) Section 5(4) ......................................................................................... 123
(c) Section 9(2) ......................................................................................... 123
(d) Maintenance ........................................................................................ 123
11.4 Defences against an action for divorce ................................................................... 124
11.5 The court’s discretion to refuse a decree of divorce ............................................. 124
x South African Family Law

Page
12 THE PATRIMONIAL CONSEQUENCES OF DIVORCE ............................................... 127
12.1 Introduction ............................................................................................................. 127
12.2 Settlement agreements ............................................................................................ 127
12.3 The patrimony of the spouses ................................................................................. 129
12.3.1 General ......................................................................................................... 129
12.3.2 Pension interests .......................................................................................... 130
(a) General ................................................................................................. 130
(b) Meaning and calculation of “pension interest” ................................. 131
(c) The difference between a pension interest and a
pension benefit .................................................................................... 132
(d) Payment or transfer of the non-member spouse’s portion of the
pension interest ................................................................................... 133
(e) Excluded marriages ............................................................................. 134
12.4 Forfeiture of patrimonial benefits........................................................................... 135
12.4.1 The requirements for a forfeiture order.................................................... 135
12.4.2 Benefits which can be forfeited .................................................................. 136
12.5 Redistribution of assets ............................................................................................ 138
12.5.1 The introduction of redistribution as a reformative and
remedial measure ........................................................................................ 138
12.5.2 The prerequisites for a redistribution order ............................................. 138
(a) General ................................................................................................. 138
(b) Marriages that are subject to complete separation of property
by operation of the law ........................................................................ 139
(c) The constitutionality of the prerequisites in section 7(3) ................ 141
12.5.3 The requirements for a redistribution order ............................................ 143
(a) General ................................................................................................. 143
(b) The nature of the contribution to the maintenance or increase
of the other spouse’s estate ................................................................. 144
12.5.4 Other considerations the court takes into account ................................... 145
(a) General ................................................................................................. 145
(b) Misconduct........................................................................................... 146
(c) The interrelationship between section 7(2) and 7(3) of the
Divorce Act 70 of 1979, and the clean-break principle ..................... 146
(d) Various other factors the courts have taken into account ................ 147
12.5.5 Assets which can be considered for purposes of a
redistribution order..................................................................................... 148
12.5.6 The date on which the value of the spouse’s estate
is to be calculated ........................................................................................ 151
12.5.7 The criterion for establishing the extent of the redistribution ................ 151
12.5.8 The form a redistribution order may take ................................................. 153
12.5.9 Consideration of a claim and a counter-claim for redistribution ............ 154
12.5.10 The nature of the discretion the court exercises ...................................... 154
13 MAINTENANCE OF A SPOUSE AFTER DIVORCE ...................................................... 157
13.1 General ..................................................................................................................... 157
13.2 Maintenance orders in terms of section 7(2) of the Divorce Act 70 of 1979 ....... 157
13.2.1 General ......................................................................................................... 157
13.2.2 Factors the court must take into account .................................................. 158
13.2.3 The movement towards rehabilitative maintenance or
no maintenance at all .................................................................................. 160
13.2.4 Lump-sum maintenance ............................................................................. 162
13.2.5 Token or nominal maintenance................................................................. 163
 Table of contents xi

Page
13.3 Rescission, suspension and variation of a maintenance order .............................. 164
13.3.1 General ......................................................................................................... 164
13.3.2 The meaning of “sufficient reason” for purposes of section 8(1) of
the Divorce Act 70 of 1979 .......................................................................... 165
13.3.3 Waiver of the right to claim rescission, suspension or variation of a
maintenance order ...................................................................................... 166
13.4 Termination of a maintenance order ..................................................................... 167
13.4.1 General ......................................................................................................... 167
13.4.2 An order in terms of section 7(1) of the Divorce Act 70 of 1979 ............. 167
13.4.3 An order in terms of section 7(2) of the Divorce Act 70 of 1979 ............. 168
14 THE INTERESTS OF THE CHILDREN OF DIVORCING PARENTS .......................... 171
14.1 Introduction ............................................................................................................. 171
14.2 The best interests of the child ................................................................................. 171
14.3 The Mediation in Certain Divorce Matters Act 24 of 1987 ................................... 174
14.4 The Divorce Act 70 of 1979 ..................................................................................... 175
14.5 Aspects the court may regulate ............................................................................... 177
14.5.1 General ......................................................................................................... 177
14.5.2 Guardianship ............................................................................................... 178
(a) The meaning of “guardianship” ......................................................... 178
(b) The order the court may make in respect of guardianship .............. 179
14.5.3 Care .............................................................................................................. 180
(a) The meaning of “care” ........................................................................ 180
(b) The order the court may make in respect of care ............................. 180
14.5.4 Contact ......................................................................................................... 184
(a) The meaning of “contact” ................................................................... 184
(b) The order the court may make in respect of contact........................ 184
14.5.5 Maintenance ................................................................................................ 187
(a) The meaning of “maintenance” ......................................................... 187
(b) The order the court may make in respect of maintenance .............. 187
14.6 Enforcement of guardianship, care and contact ................................................... 189
14.6.1 Introduction................................................................................................. 189
14.6.2 Interdict ....................................................................................................... 189
14.6.3 An order directing compliance .................................................................. 190
14.6.4 Reasonable force ......................................................................................... 190
14.6.5 Criminal sanctions ....................................................................................... 190
14.7 Rescission, suspension and variation of an order made upon divorce ................. 191
15 MISCELLANEOUS MATTERS REGARDING DIVORCE .............................................. 193
15.1 Personal consequences of divorce .......................................................................... 193
15.1.1 General ......................................................................................................... 193
15.1.2 The effect of divorce on a will .................................................................... 193
15.2 Divorce proceedings ................................................................................................ 194
15.2.1 The meaning of the concept “divorce action”........................................... 194
15.2.2 Jurisdiction in a divorce action ................................................................... 194
15.2.3 Instituting a divorce..................................................................................... 195
15.2.4 Procedure in divorce and other family-law matters .................................. 195
15.3 Relief pendente lite...................................................................................................... 198
15.3.1 General ......................................................................................................... 198
15.3.2 Maintenance pendente lite and a contribution towards costs ..................... 199
15.4 A final order for costs .............................................................................................. 200
15.5 Limitation on the publication of particulars of a divorce ..................................... 201
15.6 The abolition of orders for judicial separation ...................................................... 201
xii South African Family Law

Page
PART 2: CIVIL UNIONS
16 CIVIL UNIONS ................................................................................................................. 205
16.1 Introduction ............................................................................................................. 205
16.2 The legal requirements for a civil union ................................................................ 205
16.2.1 General ......................................................................................................... 205
(a) Capacity to act ...................................................................................... 205
(b) Agreement ........................................................................................... 206
(c) Lawfulness ............................................................................................ 206
16.2.2 Prescribed formalities.................................................................................. 207
(a) Marriage officers .................................................................................. 207
(b) Formalities preceding the civil union ceremony ............................... 209
(c) Formalities during the civil union ceremony .................................... 209
(d) Registration of the civil union ............................................................ 210
16.3 Consequences of a civil union ................................................................................. 210
16.3.1 General ......................................................................................................... 210
16.3.2 Invariable consequences ............................................................................. 211
16.4 The dissolution of a civil union ............................................................................... 212
16.5 The constitutionality of the Civil Union Act .......................................................... 213
PART 3: CUSTOMARY MARRIAGES
17 CUSTOMARY MARRIAGES ............................................................................................. 217
17.1 Introduction ............................................................................................................. 217
17.2 The legal requirements for a customary marriage................................................. 217
17.2.1 Marriages entered into before the coming into operation of the Act ..... 217
17.2.2 Marriages entered into after the coming into operation of the Act ........ 218
(a) General requirements ......................................................................... 218
(b) Additional requirements in respect of a minor’s customary
marriage ............................................................................................... 219
17.3 Registration of the marriage.................................................................................... 220
17.4 The patrimonial consequences of the marriage and control of the
matrimonial property............................................................................................... 221
17.4.1 Introduction................................................................................................. 221
17.4.2 Monogamous customary marriages ............................................................ 221
17.4.3 Polygynous customary marriages ................................................................ 222
(a) Polygynous marriages entered into before the coming into
operation of the Act ............................................................................ 222
(b) Polygynous marriages entered into after the coming into
operation of the Act ............................................................................ 223
17.4.4 Alteration of the matrimonial property system ......................................... 226
(a) Marriages entered into before the coming into operation of
the Act .................................................................................................. 226
(b) Marriages entered into after the coming into operation of
the Act .................................................................................................. 226
17.4.5 A customary marriage a minor entered into without the requisite
consent ......................................................................................................... 227
(a) The patrimonial consequences if the marriage is set aside .............. 227
(b) The patrimonial consequences if the marriage is not set aside ....... 227
17.5 The wife’s status........................................................................................................ 229
17.6 Termination of the marriage by divorce ................................................................ 229
17.6.1 Ground for divorce...................................................................................... 229
17.6.2 The consequences of divorce ..................................................................... 229
(a) The patrimonial consequences of divorce ......................................... 229
 Table of contents xiii

Page
(b) The interests of the children of divorcing parents............................ 232
(c) Maintenance ........................................................................................ 232
17.6.3 Joinder .......................................................................................................... 232
17.6.4 Jurisdiction ................................................................................................... 232
17.6.5 Procedure ..................................................................................................... 233
17.6.6 Interim relief ................................................................................................ 233
17.7 Termination of the marriage by death ................................................................... 233
17.7.1 Death as a ground for termination ............................................................ 233
17.7.2 Maintenance of the surviving spouse(s) .................................................... 234
17.8 The co-existence of a customary marriage and a civil marriage or civil union .... 234
17.8.1 A subsequent customary marriage by a party to a civil marriage or
civil union .................................................................................................... 234
17.8.2 A subsequent civil marriage or civil union by a party to a customary
marriage ....................................................................................................... 235
(a) Capacity to enter into a subsequent civil marriage or civil union .... 235
(b) The consequences of a subsequent civil marriage ............................ 236
PART 4: MUSLIM AND HINDU MARRIAGES
18 MUSLIM MARRIAGES ..................................................................................................... 241
18.1 Introduction ............................................................................................................. 241
18.2 Recognition of Muslim marriages ........................................................................... 242
18.3 The Constitution and Muslim marriages ................................................................ 247
19 HINDU MARRIAGES........................................................................................................ 249
19.1 Introduction ............................................................................................................. 249
19.2 Recognition of Hindu marriages ............................................................................ 249
19.3 The Constitution and Hindu marriages ................................................................. 251
PART 5: LIFE PARTNERSHIPS
20 LIFE PARTNERSHIPS ...................................................................................................... 255
20.1 Introduction ............................................................................................................. 255
20.2 Protection of life partners by means of ordinary legal rules ................................. 256
20.2.1 General ......................................................................................................... 256
20.2.2 Contract ....................................................................................................... 256
(a) General ................................................................................................. 256
(b) Universal partnership .......................................................................... 257
(c) Life partnership contract .................................................................... 259
(d) Agency .................................................................................................. 260
20.2.3 Estoppel........................................................................................................ 260
20.2.4 Will................................................................................................................ 260
20.2.5 Unjustified enrichment ............................................................................... 260
20.3 Legislative and judicial recognition of life partnerships ....................................... 261
20.3.1 Heterosexual life partnerships ................................................................... 261
20.3.2 Same-sex life partnerships........................................................................... 263
20.3.3 Determining whether a life partnership has come into existence ........... 266
20.4 The Constitution and life partnerships .................................................................. 267
PART 6: DOMESTIC VIOLENCE
21 DOMESTIC VIOLENCE ................................................................................................... 271
21.1 Introduction ............................................................................................................. 271
21.2 Ordinary civil and criminal remedies ..................................................................... 271
xiv South African Family Law

Page
21.3 Domestic Violence Act 116 of 1998 ........................................................................ 272
21.3.1 General ......................................................................................................... 272
21.3.2 The persons who qualify for protection under the Act ............................ 273
21.3.3 The conduct which qualifies as domestic violence.................................... 274
21.3.4 The protection order .................................................................................. 274
(a) The interim protection order ............................................................. 274
(b) The protection order .......................................................................... 277
(c) Varying and setting aside a protection order .................................... 277
21.3.5 Protection of a complainant at the scene of an incident of
domestic violence ........................................................................................ 278
21.3.6 Jurisdiction ................................................................................................... 278
21.3.7 The court proceedings ................................................................................ 278
21.3.8 Legal representation and costs ................................................................... 279
21.4 Reporting abuse ....................................................................................................... 279
21.4.1 General ......................................................................................................... 279
21.4.2 Child abuse .................................................................................................. 279
21.4.3 Abuse of an aged person ............................................................................. 280
21.5 Prevention and early intervention in respect of children who are at risk ............ 280
21.6 The Constitution and domestic violence ................................................................ 281
PART 7: THE RESPONSIBILITIES AND RIGHTS OF PARENTS AND CHILDREN
22 CHILDREN’S RIGHTS ..................................................................................................... 287
22.1 Introduction ............................................................................................................. 287
22.2 Section 28 of the Constitution of the Republic of South Africa, 1996 ................. 287
22.2.1 General ......................................................................................................... 287
22.2.2 The right to a name..................................................................................... 289
22.2.3 The right to family, parental or appropriate alternative care, and
the right to nutrition, shelter, health care and social services ................. 289
22.2.4 The right to be protected from maltreatment, neglect, abuse or
degradation .................................................................................................. 291
22.2.5 The right to legal representation ............................................................... 291
22.2.6 The paramountcy of the child’s best interests ........................................... 294
22.3 The United Nations Convention on the Rights of the Child ................................ 296
22.4 The African Charter on the Rights and Welfare of the Child ............................... 297
22.5 The Children’s Act 38 of 2005 ................................................................................ 297
23 PARENTAL RESPONSIBILITIES AND RIGHTS............................................................ 301
23.1 The contents of parental responsibilities and rights ............................................. 301
23.1.1 General ......................................................................................................... 301
23.1.2 Guardianship ............................................................................................... 301
23.1.3 Care .............................................................................................................. 302
23.1.4 Contact ......................................................................................................... 303
23.1.5 Maintenance ................................................................................................ 303
(a) General ................................................................................................. 303
(b) The bearers of the duty to support a child ........................................ 304
(c) Recovery of expenses relating to support .......................................... 308
(d) The reciprocity of the duty of support ............................................... 309
23.2 Ways of acquiring parental responsibilities and rights .......................................... 310
23.2.1 General ......................................................................................................... 310
23.2.2 Birth.............................................................................................................. 311
23.2.3 A marriage or civil union with the child’s mother at the time of the
child’s conception or birth or at any intervening time ............................. 312
 Table of contents xv

Page
23.2.4 A marriage or civil union between the child’s parents after the
child’s birth .................................................................................................. 312
23.2.5 A permanent life partnership between the parents at the time of the
child’s birth .................................................................................................. 312
23.2.6 Acknowledging paternity, contributing to the child’s upbringing,
and contributing to the child’s maintenance ............................................ 313
23.2.7 A parental responsibilities and rights agreement ...................................... 314
23.2.8 Assignment by an order of court ................................................................ 315
23.2.9 Appointment in a will .................................................................................. 316
23.2.10 Adoption ...................................................................................................... 317
(a) General ................................................................................................. 317
(b) An adoptable child .............................................................................. 317
(c) The adoptive parent(s) ....................................................................... 317
(d) Consent ................................................................................................ 318
(e) A freeing order .................................................................................... 320
(f) Consideration of the adoption application ....................................... 320
(g) Advertisements and payment for adoption ....................................... 321
(h) The effect of an adoption order ......................................................... 321
(i) Rescission of an adoption order ......................................................... 322
(j) Inter-country adoption ........................................................................ 323
23.3 The position when more than one person has parental responsibilities and
rights in respect of a child ....................................................................................... 325
23.3.1 General ...................................................................................................... 325
23.3.2 Guardianship ............................................................................................. 325
23.3.3 Due consideration of the views and wishes of other co-holders............. 327
23.3.4 Surrender or transfer of parental responsibilities and rights is
prohibited .................................................................................................. 327
23.3.5 Parenting plan ........................................................................................... 327
23.4 Judicial interference with parental responsibilities and rights ............................. 329
23.4.1 General ...................................................................................................... 329
23.4.2 The High Court as upper guardian ......................................................... 329
23.4.3 Matrimonial Affairs Act 37 of 1953 .......................................................... 330
23.4.4 Marriage Act 25 of 1961 ............................................................................ 330
23.4.5 Divorce Act 70 of 1979 .............................................................................. 330
23.4.6 Domestic Violence Act 116 of 1998.......................................................... 330
23.4.7 Children’s Act 38 of 2005 ......................................................................... 330
(a) General .............................................................................................. 330
(b) Termination, extension, suspension and circumscription of a
person’s parental responsibilities and rights ................................... 331
(c) Dispensing with consent to medical treatment, an operation or
an HIV test ......................................................................................... 332
(d) A child in need of care and protection............................................ 334
(e) International child abduction .......................................................... 340
23.5 Enforcement of parental responsibilities and rights ............................................. 349
23.6 Termination of parental responsibilities and rights .............................................. 349
23.6.1 General ...................................................................................................... 349
23.6.2 Termination of the duty of support ......................................................... 350
(a) The child’s death............................................................................... 350
(b) The child’s adoption ......................................................................... 350
(c) The child’s becoming self-supporting ............................................. 351
(d) The child’s entering into a marriage or civil union........................ 351
(e) The liable party’s insolvency ............................................................. 351
23.6.3 Termination of an order regarding child’s maintenance ...................... 352
xvi South African Family Law

Page
24 GUARDIANSHIP AND CURATORSHIP......................................................................... 355
24.1 Guardianship ............................................................................................................ 355
24.1.1 General ......................................................................................................... 355
24.1.2 The types of guardians ................................................................................ 355
(a) Testamentary guardian ....................................................................... 355
(b) Assumed tutor ...................................................................................... 355
(c) Tutor dative.......................................................................................... 356
(d) Supposed or putative tutor ................................................................. 356
24.1.3 The requirements for appointment as a guardian .................................... 356
24.1.4 The rights and duties of a guardian ........................................................... 356
24.1.5 Termination of guardianship ..................................................................... 357
24.2 Curatorship ............................................................................................................... 357
24.2.1 General ......................................................................................................... 357
24.2.2 The types of curators ................................................................................... 358
(a) Curator nominate ................................................................................ 358
(b) Assumed curator .................................................................................. 358
(c) Curator dative ...................................................................................... 358
(d) Curator or curatrix ad litem.................................................................... 358
24.2.3 The requirements for appointment as a curator ....................................... 358
24.2.4 The rights and duties of a curator .............................................................. 359
24.2.5 Termination of curatorship ........................................................................ 359
BIBLIOGRAPHY .................................................................................................................... 361
TABLE OF CASES .................................................................................................................. 367
TABLE OF LEGISLATION AND INTERNATIONAL INSTRUMENTS ........................... 387
INDEX ..................................................................................................................................... 401
 PREFACE

We wish to thank the team at LexisNexis, in particular Corné Mulder, Mandy Jonck, Lisa
Sandford, Liz Bisschoff and Elna Brelage for the first-rate quality of their input and for their
co-operation, speed, efficiency and friendliness. Lisa Sandford and Paula Bouwer deserve
special thanks for preparing the table of cases, table of statutes and the index.
This book reflects the law as at 1 August 2015. Decisions up to the July 2015 law reports
were considered for inclusion.

Jacqueline Heaton and Hanneretha Kruger

Pretoria
October 2015

xvii
 PART

1
CIVIL MARRIAGES
 1
INTRODUCTION

1.1 The definition of the family

As the term “family law” suggests, the main focus of this field of law is the family. The concept
of the “family” is used in both a wide and a narrow sense. In the wide sense it includes all
people who are blood relations or have become related through adoption or any type of
marriage, civil union, life partnership or similar relationship. A child-headed household
which consists solely of minors may conceivably also qualify as a family in the wide sense,1
even though the children in the household need not be related to each other.2 The narrow,
archaic definition of “family” restricts the concept to spouses in a valid marriage and their
children (and, nowadays, the parties to a civil union and their children).
Sometimes a distinction is made between immediate and extended family. “Immediate fam-
ily” refers to a person’s spouse or civil union partner, his or her children, his or her parents
and his or her brothers and sisters, while “extended family” includes grandparents, aunts,
3
uncles, cousins, nephews, nieces and so forth.

1.2 The scope of this book

This book deals with more than the family in the narrow sense. Civil marriages are discussed
in Part 1 of the book. These marriages are monogamous and may only be entered into by
persons of the opposite sex. Civil marriages are governed by the common law and various Acts
and were, until 2000, the only marital relationship which was fully recognised by South Afri-
can law.
Since civil marriages and civil unions have a great deal in common, civil unions are dis-
cussed in Part 2 of the book. Civil unions have been recognised since 30 November 2006,
when the Civil Union Act 17 of 2006 came into operation. Apart from the fact that a civil
union may be concluded by parties of the opposite or the same sex, the requirements for and
consequences of civil unions are in many respects identical to those of civil marriages.
Customary marriages are discussed in the third part of the book. These marriages gained
full legal recognition when the Recognition of Customary Marriages Act 120 of 1998 came
into operation on 15 November 2000. Many of the requirements and consequences this Act
imposes in respect of customary marriages are the same as those that apply to civil marriages
and civil unions.
Marriages that are concluded purely in terms of religious rites are not yet fully recognised
by South African law. However, if a religious marriage is monogamous and is solemnised in
terms of the Marriage Act 25 of 1961 (as, for example, Jewish and Christian marriages are), the
marriage is recognised. In such event, the marriage has dual validity; in other words, the
________________________

1 Sloth-Nielsen 2009 (2) Speculum Juris 9.

2 See ss 1 and 137 of the Children’s Act 38 of 2005.
3 Further on the meaning of “family”, see Barratt (ed) Persons and the Family 163–167; Department of Social
Development Green Paper on Families (Gen Notice 756 GG 34657 of 3 October 2011) 28–31.

3
4 South African Family Law

religious and civil marriages exist side by side, with the consequences of the civil marriage
being governed by the South African common law and legislation relating to civil marriages,
and the consequences of the religious marriage being governed by the particular system of
religious law in terms of which the marriage was celebrated. Similarly, if solemnisation takes
place under the Civil Union Act, the religious marriage and the civil union exist side by side,
with the consequences of the civil union being governed by the Civil Union Act, and the
consequences of the religious marriage being governed by the particular system of religious
law in terms of which the marriage was celebrated. Many Muslim and Hindu religious officials
do not apply to be appointed as marriage officers in terms of the Marriage Act or the Civil
Union Act, with the result that the marriages they solemnise are purely religious marriages
that do not enjoy full legal recognition. Moves to address the absence of legal recognition of
purely religious Muslim and Hindu marriages have been afoot for some time, and the courts
and legislature have already extended piecemeal recognition to these marriages for specific,
limited purposes. The focus of the discussion in Part 4 of the book is this, limited, legislative
and judicial recognition that has been afforded to Muslim and Hindu marriages.
Part 5 of the book deals with the consequences of the life partnerships of heterosexual and
same-sex couples. In other words, this part of the book deals with the legal position of couples
who live together without entering into a legally recognised marriage or civil union.
The problem of domestic violence, which occurs across all types of family relationships, is
discussed in Part 6. The focus falls mainly on the Domestic Violence Act 116 of 1998.
Part 7 of the book deals with the parent-child relationship. The first chapter in Part 7
covers children’s rights. The second chapter deals with the acquisition, content and termin-
ation of parental responsibilities and rights and judicial interference with these responsibil-
ities and rights.
The last part of the book deals with two topics that are traditionally treated as part of family
law even though they are not founded on any family relationship – guardianship and curator-
ship. The guardianship under consideration in Part 8 is not the guardianship that is a com-
ponent of parental responsibilities and rights, which is discussed in Part 7 of the book; it
relates to the officially supervised care of the estate, or the person and estate, of a minor.
 2
THE ENGAGEMENT

2.1 Introduction
The engagement (or promise to marry) in respect of a civil marriage is an agreement
1
between a man and a woman to marry each other on a specific or determinable date. A valid
engagement is not a prerequisite for the conclusion of a valid civil marriage, but most civil
marriages are preceded by an engagement.2

2.2 The requirements for a valid engagement

The engagement is based on consensus (that is, agreement) and thus the usual rules in con-
nection with consensus apply. For example, a material misrepresentation renders the engage-
3
ment voidable at the instance of the misled party.
The engagement is concluded by means of offer and acceptance. The parties do not have
to be in each other’s presence. Therefore, unlike a marriage, an engagement can be con-
cluded by a representative, provided that the parties give their consent.4
Both parties to the engagement must have capacity to act. Therefore, for example, some-
one who does not have capacity to act due to mental illness cannot become engaged as long
as his or her incapacity lasts.5 A minor must obtain his or her parents’ permission to become
engaged. If the minor’s parents withdraw their consent after the engagement but before the
marriage, the engagement is automatically terminated.6 Given the highly personal nature of
an engagement, nobody may conclude an engagement on behalf of a minor without the
minor’s consent.7
At the time of entering into the engagement the parties must be in a position to conclude a
civil marriage with each other. Therefore, they must be unmarried; they may not be related
within the prohibited degrees of relationship; neither of them may be below the age of
puberty; they must be of the opposite sex; and so on.8 A promise by a married person to marry
________________________

1 In Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA), the Supreme Court of Appeal suggested that, instead of
being an enforceable agreement, “[a]n engagement is . . . more of an unenforceable pactum de contrahendo
providing a spatium deliberandi – a time to get to know each other better and to decide whether or not to
marry finally”: par 8.
2 An engagement can eg be void without the parties being aware of it. The fact that the parties were never
engaged does not affect the validity of the marriage.
3 A material misrepresentation includes an innocent or intentional misrepresentation in connection with a
significant personal quality of one of the parties, eg pregnancy, impotence, sterility, mental illness, a serious
physical or mental handicap, or sexual promiscuity: Thelemann v Von Geyso 1957 (3) SA 39 (W); Heaton in
Church (ed) LAWSA Marriage par 6; Joubert in Clark (ed) Family Law Service par A9; Sinclair assisted by
Heaton 319–321; Skelton and Carnelley (eds) Family Law 23; Van der Vyver and Joubert 478.
4 M v M 1991 (4) SA 587 (D) 599D. On the prohibition on marriage by proxy, see ch 3 below.
5 On the capacity to act of a person who is mentally ill, see Heaton Persons 118–120.
6 Schoeman v Rafferty 1918 CPD 485; Sipondo v Nongauza 1927 EDL 255.
7 Brouwer 1.3.4; Van der Keessel Theses Selectae 52.
8 See ch 3 below on marriage impediments.

5
6 South African Family Law

a third party after obtaining a divorce or after his or her spouse’s death is void because it is
contra bonos mores (that is, against good morals).9 If the unmarried party was unaware of the
other party’s marriage, he or she can sue the married party for contumelia (that is, insult).10

2.3 The content and consequences of the engagement

As indicated above, the engagement is an agreement by two persons to marry each other at
some future time. If a date for the marriage has been set, there is a reciprocal duty to marry
on that date. This date can be changed by mutual agreement. If no firm date for the marriage
was set at the time of the engagement, the parties must later agree on a date for the marriage.
As the engagement is an agreement to marry, it requires the couple to be faithful to each
other.11

2.4 Termination of the engagement

2.4.1 General
Obviously, the engagement comes to an end when the parties marry each other. If either
party is a minor, the engagement is terminated if his or her parents withdraw consent to the
marriage, because the intended marriage can no longer validly take place.12 The engagement
is also terminated by the death of either of the parties and by the parties’ mutual agreement
to terminate the engagement.
Unilateral termination of an engagement can be lawful or unlawful. It is lawful if it takes
place for a justa causa (that is, a sound reason). In such event, the termination does not
constitute breach of promise. Breach of promise occurs if one of the parties terminates the
engagement without a justa causa or violates the commitments implicit in the engagement
(such as engaging in a sexual relationship with a third party or marrying a third party).
A justa causa refers to any event that occurs or any condition of or action by one of the par-
ties after the engagement has been entered into which jeopardises the chances of a happy
and lasting marriage and which could induce any reasonable person to rescind the engage-
13
ment. Justae causae include one of the parties becoming sterile or impotent, developing a
serious hereditary disease, becoming mentally ill, and becoming an alcoholic.14 A serious
argument concerning the matrimonial property system which is to operate in the marriage
probably also constitutes a justa causa.15 It has been held that a strong disagreement between
the parties’ parents concerning the wedding arrangements is not a justa causa.16
17
In Van Jaarsveld v Bridges the Supreme Court of Appeal stated in an obiter dictum that lack
of desire by one of the parties to proceed with the marriage should also be a justa causa
regardless of whose “fault” it is that the marriage is no longer desired. If this lenient view were
to be adopted, the reason for terminating an engagement would become more or less
________________________

9 Friedman v Harris 1928 CPD 43; Viljoen v Viljoen 1944 CPD 137; Pietzsch v Thompson 1972 (4) SA 122 (R).
10 Duncan v Willson (1906) 27 NLR 624; Viljoen v Viljoen 1944 CPD 137; Claassen v Van der Watt 1969 (3) SA 68
(T); Lloyd v Mitchell [2004] 2 All SA 542 (C).
11 Barratt (ed) Persons and the Family 225; Heaton in Church (ed) LAWSA Marriage par 8; Joubert in Clark (ed)
Family Law Service par A14; Sinclair assisted by Heaton 321; Skelton and Carnelley (eds) Family Law 26; Viss-
er and Potgieter 32; Wille’s Principles 234.
12 Schoeman v Rafferty 1918 CPD 485; Sipondo v Nongauza 1927 EDL 255.
13 Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA).
14 Barratt (ed) Persons and the Family 226; Heaton in Church (ed) LAWSA Marriage par 7; Joubert in Clark (ed)
Family Law Service par A14; Sinclair assisted by Heaton 322–323; Van der Vyver and Joubert 478–479; Visser
and Potgieter 33.
15 Hart v Yates (1896) 3 Off Rep 201.
16 Krull v Sangerhaus 1980 (4) SA 299 (E).
17 2010 (4) SA 558 (SCA), Heaton and Kruger Casebook on Family Law case [1].
 Chapter 2: The engagement 7

irrelevant, because a party’s lack of desire to proceed with the marriage is inexorably evident
simply from the fact that he or she terminates the engagement. Consequently, almost all – if
not all – unilateral terminations would have a justa causa. Even in those cases where a party
does not start off by expressly indicating that he or she lacks the desire to proceed with the
marriage but acts in a manner that violates a commitment implicit in the engagement, it
could be argued that the conduct does not constitute breach of promise and that there was a
justa causa all along, since the conduct was simply a symptom of his or her lack of desire to
proceed with the marriage and that this justa causa was the real ground of the termination of
18
the engagement.

2.4.2 The consequences of termination of the engagement

(a) Delictual damages for personality infringement
In some instances, termination of an engagement can found a delictual action on the ground
of personality infringement. If the termination wounds the dignity or sullies the honour of
the other party, the injured party may institute the actio iniuriarum. Under this action the
injured party claims solatium (that is, sentimental damages or satisfaction) for the personality
infringement occasioned by the manner in which the termination of the engagement oc-
20
curred.19 It is irrelevant whether or not the termination had a justa causa. In order to succeed
with the action, the injured party has to prove not only iniuria (that is, injury) but also animus
21
iniuriandi (that is, intention to injure).
The amount awarded as sentimental damages is within the court’s discretion and cannot be
computed beforehand with mathematical precision. In order to arrive at a decision, the court
takes into account such factors as the way in which the termination occurred; the motives
behind that course of action; the social status of the parties; their previous life experience,
and so on. In Davel v Swanepoel 22 the defendant had kept the plaintiff dangling like the pro-
verbial puppet on a string and had secretly married a third party without first terminating the
engagement. This was judged to be a serious iniuria. In Smit v Jacobs 23 the defendant (in this
instance the woman) had likewise entered into a furtive marriage with a third party, also
without first terminating the engagement. The court awarded £100 to the plaintiff as satisfac-
tion. It found that the defendant had acted in a heartless manner. In Guggenheim v Rosen-
baum 24 the defendant, having concluded an engagement, later denied all knowledge of its
existence. The court considered this conduct to be an iniuria. It held that this case was quite
distinct from the “normal” case in which sentimental damages would not be awarded, namely
where the defendant acknowledged the engagement but broke it off “in a sensible and non-
contumelious manner in the interest of both parties”.25 In Guggenheim the plaintiff was award-
ed R500 as sentimental damages. The court took into consideration that although the plain-
tiff had been humiliated, she was an adult woman with a great deal of experience of life. In its
decision, the court further held that the defendant’s conduct after terminating the engage-
ment could also be taken into account in assessing the amount due. Thus, if the defendant
displayed a contemptuous attitude in court, the amount could well be increased.26

________________________

18 See also Heaton 2010 Annual Survey of South African Law 449.
19 See eg Guggenheim v Rosenbaum 1961 (4) SA 21 (W); Bull v Taylor 1965 (4) SA 29 (A), Heaton and Kruger
Casebook on Family Law case [3]; Sepheri v Scanlan 2008 (1) SA 322 (C); Van Jaarsveld v Bridges
2010 (4) SA 558 (SCA); Cloete v Maritz (6222/2010, 16433/2012) [2014] ZAWCHC 108 (13 June 2014).
20 See eg Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA).
21 Ibid.
22 1954 (1) SA 383 (A).
23 1918 OPD 30.
24 1961 (4) SA 21 (W).
25 41.
26 Guggenheim v Rosenbaum 1961 (4) SA 21 (W).
8 South African Family Law

The courts appear hesitant to award sentimental damages in those cases in which either
party realises that he or she no longer cares for the other as a prospective spouse should, and
then in a fair and open manner terminates the engagement.27
The fact that the plaintiff secretly marries another person during the trial does not have
the effect of decreasing the damages.28
(b) Contractual damages for breach of promise
In the past, the courts awarded contractual damages to the jilted party if the other party
committed breach of promise. The courts adopted a sui generis (that is, one of a kind)
approach to calculating the damages. It awarded the jilted party both the prospective loss of
the benefits of the marriage and the actual loss incurred or to be incurred as a result of the
29
breach. As far as prospective loss was concerned, the jilted party was placed in the position
he or she would have been in had the marriage taken place. For example, if a woman who
had no assets of her own were the plaintiff and the intended marriage were to have been in
community of property, she could claim half the man’s existing estate as well as half the net
benefit the marriage in community of property would have conferred on her. She could also
claim the maintenance she would have received during the subsistence of the marriage, and
so on. If the marriage were to have been out of community of property, she would be entitled
to claim all gifts promised, together with such maintenance as she would have received
during the marriage. In respect of prospective loss, the courts reduced the amount by taking
into account factors such as how long the marriage would probably have lasted, the plaintiff’s
age, and the possibility of the plaintiff marrying someone else.30 Under actual loss the jilted
party could claim, inter alia, expenses incurred in connection with the wedding and honey-
moon arrangements, the wedding dress, and a change of residence.31
The continued recognition of the engagement by way of awards for contractual damages
32
for breach of promise came under judicial fire in Sepheri v Scanlan. In this case, Davis J
referred to the views of authors who submit that abolition of the contractual claim for breach
of promise should be considered, inter alia because the action places
the marital relationship on a rigid contractual footing and thus raises questions as to whether, in
the constitutional context where there is recognition of diverse forms of intimate personal rela-
tionships, it is still advisable that, if one party seeks to extract himself or herself from the initial
intention to conclude the relationship, this should be seen purely within the context of contrac-
tual damages.33
A few years later, the Supreme Court of Appeal stated in an obiter dictum in Van Jaarsveld v
34
Bridges that the time had arrived “to recognise that the historic approach to engagements is
outdated and does not recognise the mores of our time”. This was so inter alia because it is
illogical to consider fault in respect of engagements by imposing an economic sanction for
breach of promise while divorce is no longer based on fault. The court also stated that public
35
policy considerations demand reassessment of the law relating to breach of promise. The

________________________

27 Mocke v Fourie (1893) 3 CTR 313; Radlof v Ralph 1917 EDL 168 173; Guggenheim v Rosenbaum 1961 (4) SA 21
(W); Bull v Taylor 1965 (4) SA 29 (A) 36.
28 Davel v Swanepoel 1954 (1) SA 383 (A).
29 See eg Guggenheim v Rosenbaum 1961 (4) SA 21 (W).
30 Guggenheim v Rosenbaum 1961 (4) SA 21 (W); Sepheri v Scanlan 2008 (1) SA 322 (C).
31 Guggenheim v Rosenbaum 1961 (4) SA 21 (W).
32 2008 (1) SA 322 (C).
33 Sepheri v Scanlan 2008 (1) SA 322 (C) 330I–331A. See also Lloyd v Mitchell [2004] 2 All SA 542 (C), where
the continued recognition of the action for breach of promise was raised in the context of dismissal of a
claim for damages by an unmarried woman who was aware that her supposed fiancé was married. On the
inability of a married person to enter into an engagement, see above in this chapter.
34 2010 (4) SA 558 (SCA) par 3.
35 On the reasons for abolishing the claim for contractual damages for breach of promise, see further Sepheri v
Scanlan 2008 (1) SA 322 (C); Cloete v Maritz 2013 (5) SA 448 (WCC); Sinclair assisted by Heaton 314 fn 8;
continued
 Chapter 2: The engagement 9

Supreme Court of Appeal further provided guidelines regarding the future development of
the law relating to claims for breach of promise. It stated that “[i]t is difficult to justify the
commercialisation of an engagement in view of the fact that a marriage does not give rise to a
36
commercial or rigidly contractual relationship”. In respect of prospective loss, the court
rejected the notion that when they become engaged, the parties contemplate that breach of
promise would result in the imposition of the financial consequences the marriage would
have had. It further stated that claims for prospective loss are difficult to rationalise, inter alia
because it is impossible to work on any assumption about the parties’ future matrimonial
property system. Parties rarely agree on their matrimonial property system when they become
engaged, and even if they do, either of them can change his or her mind before the wedding.
Having to take the jilted party’s loss of the maintenance into account complicates matters
even more, for such loss depends on the anticipated duration of the marriage and the orders
the court would probably have made on divorce. Furthermore, claims for prospective loss
37
always involve speculation. In so far as claims for actual loss are concerned, the court stated
that actual loss “does not flow from the breach of promise per se but from a number of express
38
or tacit agreements reached between the parties during the course of their engagement”.
The court did not explain the nature of these agreements, but stated that the jilted party who
suffered actual loss which was within the contemplation of the parties “must be placed in the
position in which she or he would have been had the relevant agreement not been con-
cluded; and what the one has received must be set off against what the other has paid or
39
provided”.
40
Subsequently, in Cloete v Maritz, the Western Cape Division of the High Court, Cape Town
was faced with a claim for prospective loss based on breach of promise. The court held,
correctly, that although the statements by the Supreme Court of Appeal in Van Jaarsveld were
not binding because they were obiter dicta, they had strong persuasive force. It pointed out
that courts are obliged to develop the common law and to promote the spirit, purport and
objects of the Bill of Rights. In doing so, they must have regard to prevailing mores and
public policy. In keeping with the views in Sepheri and Van Jaarsveld the court held that the
rule that a party who breaks off an engagement can be held liable on a rigid contractual
footing does not reflect changed mores and public interest and is untenable in view of the
values that underlie the Constitution of the Republic of South Africa, 1996. Applying the
reasoning and guidelines set out in Van Jaarsveld, the court developed the common law to
hold that a claim for contractual damages for prospective loss based on breach of promise is
no longer recognised. It should be noted that the court only abolished the claim for contrac-
tual damages for prospective loss; it did not abolish the claim for contractual damages for
actual loss or amend the legal position in respect of the latter type of claim. Nor did it amend
the law relating to claiming sentimental damages. Although the judgment in Cloete is not
binding throughout the country, it will in all probability be followed since it is based on
41
guidelines set by the Supreme Court of Appeal.
(c) Return of the engagement gifts
If the parties mutually agree to terminate the engagement or if the engagement is terminated
due to a justa causa, all gifts made with a view to the marriage (that is, the sponsalitia largitas),
________________________

Joubert 1990 De Jure 201; Labuschagne 1993 De Jure 126; Sharp and Zaal 2011 THRHR 338–339; Geduld and
Dircksen 2013 De Jure 964–966; Bonthuys 2015 SALJ 84–85.
36 Par 7.
37 For criticism of the court’s reasoning, see Bonthuys 2015 SALJ 84–85.
38 Par 11.
39 Ibid. For criticism of the court’s view that engagements should be viewed like normal contracts, see Bon-
thuys 2015 SALJ 89–90. The author also shows that the court did not correctly apply the normal rules of
contract to engagements.
40 2013 (5) SA 448 (WCC), Heaton and Kruger Casebook on Family Law case [2].
41 But see Nkosi 2014 THRHR 677, who is very critical of the judgment in Cloete and submits that it should not
be followed.
10 South African Family Law

as well as the engagement ring and other gifts presented to show the seriousness of the prom-
ise (that is, the arrhae sponsalitiae), must be returned by both parties.42 Small gifts to which no
specific meaning is attached (so-called “out-and-out gifts” or outright gifts) and which have
already been used up, alienated or lost, need not be returned.43
If one of the parties has committed breach of promise, the injured party may reclaim the
sponsalitia largitas and arrhae sponsalitiae he or she gave to the guilty party and may retain the
sponsalitia largitas and arrhae sponsalitiae he or she received from the guilty party.44 Small out-
right gifts may be retained by the recipient regardless of whether he or she is the guilty or the
injured party.45 If the injured party claims damages, the value of the gifts he or she retained
must be set off against the damages claimed.46

2.5 Satisfaction and damages on the ground of seduction

South African law recognises an action for satisfaction and damages on the ground of seduc-
tion. Seduction is extra-marital sexual intercourse with a virgin (or a chaste woman)47 with her
consent. In order to be successful in the action, the woman must prove that she was a virgin
(or a chaste woman) prior to the seduction, that she was seduced, and that sexual intercourse
occurred as a result.48 The action is available regardless of whether the parties were engaged
to each other when the seduction took place.
An action on the ground of seduction comprises two separate claims. The first concerns
satisfaction for defloration and reduction of the woman’s chances of entering into a suitable
and successful marriage.49 The second claim is for damages on the ground of the seduction. If
the woman gave birth to a child as a result of the seduction, the seducer is also responsible for
lying-in expenses (that is, expenses incurred in respect of the child’s birth, such as doctors’
fees and hospitalisation costs) and his share of the child’s maintenance.50
________________________

42 Barratt (ed) Persons and the Family 231; Heaton in Church (ed) LAWSA Marriage par 11; Joubert in Clark
(ed) Family Law Service par A15; Sinclair assisted by Heaton 331; Skelton and Carnelley (eds) Family Law 31;
Van den Heever 41; Van der Vyver and Joubert 479–480; Visser 545; Visser and Potgieter 35–36.
43 Van Duyn v Visser 1963 (1) SA 445 (O); Barratt (ed) Persons and the Family 231; Heaton in Church (ed)
LAWSA Marriage par 11; Joubert in Clark (ed) Family Law Service par A15; Lee and Honoré par 19; Sinclair
assisted by Heaton 331; Skelton and Carnelley (eds) Family Law 31; Van den Heever 41; Van der Vyver and
Joubert 479–480; Visser 545; Visser and Potgieter 35, 36.
44 Barratt (ed) Persons and the Family 231; Heaton in Church (ed) LAWSA Marriage par 11; Joubert in Clark
(ed) Family Law Service par A15; Lee and Honoré par 19; Sinclair assisted by Heaton 331–332; Skelton and
Carnelley (eds) Family Law 31–32; Van den Heever 41; Van der Vyver and Joubert 479, 480; Visser 545;
Visser and Potgieter 36; Wille’s Principles 236. If the guilty party no longer has the sponsalitia largitas and ar-
rhae sponsalitiae, or the gifts have been lost or damaged, their value must be returned to the injured party:
Visser 546.
45 Barratt (ed) Persons and the Family 231; Heaton in Church (ed) LAWSA Marriage par 11; Joubert in Clark
(ed) Family Law Service par A15; Sinclair assisted by Heaton 331–332; Skelton and Carnelley (eds) Family
Law 31–32; Van den Heever 41; Van der Vyver and Joubert 479–480; Visser 545; Visser and Potgieter 35–36.
46 Desco v Santich (1907) 17 CTR 165 166; see also Barratt (ed) Persons and the Family 231; Heaton in Church
(ed) LAWSA Marriage par 11; Sinclair assisted by Heaton 332; Skelton and Carnelley (eds) Family Law 31–
32; Visser and Potgieter 36.
47 In Claassen v Van der Watt 1969 (3) SA 68 (T) the court intimated that any chaste woman can institute the
action.
48 Carelse v Estate De Vries (1906) 23 SC 532; Davel v Swanepoel 1954 (1) SA 383 (A); Bull v Taylor 1965 (4) SA 29
(A). In Claassen v Van der Watt 1969 (3) SA 68 (T) 71 Viljoen J stated: “Had it been alleged that she was a
virgin or a widow, it seems to me that a presumption would operate that she was a virgin or a chaste woman
as the case may be. The onus would then have been on the defendant to prove otherwise”. See also the ac-
ceptance of this ruling in Sager v Bezuidenhout 1980 (3) SA 1005 (O) 1007.
49 Calculation of the amount is within the court’s discretion. In Bull v Taylor 1965 (4) SA 29 (A) the social
status of the parties was taken into account. See also M v M 1991 (4) SA 587 (D); Bekker 1992 THRHR 484.
The fact that the woman chose to continue the relationship and to receive further gifts and favours from
the man is also taken into consideration: Saheb v Mather 1946 NPD 703.
50 Davel v Swanepoel 1954 (1) SA 383 (A); Sager v Bezuidenhout 1980 (3) SA 1005 (O); M v M 1991 (4) SA 587
(D). On an unmarried father’s duty of support, see ch 23 below.
 Chapter 2: The engagement 11

Because the action on the ground of seduction can be instituted only by a woman, it consti-
tutes inequality before the law and discriminates unfairly against men on the ground of sex,
thus violating section 9 of the Constitution. Another, even stronger, ground for attacking the
constitutionality of the action is that it discriminates unfairly against women and violates their
right to dignity by perpetuating sexual stereotypes and being premised on the notion that
women have diminished responsibility for their actions.51 Because of the serious violation of
dignity and equality that the action entails, its retention cannot be justified. The action
should therefore be abolished.52

________________________

51 The latter line of attack succeeded in the German Constitutional Court: Frank 1994–1995 Journal of Family
Law 360.
52 See further Heaton Bill of Rights Compendium par 3C13; Sinclair 1987 Law and Inequality 99; Labuschagne
1994 Journal for Juridical Science 162; Visser 1997 THRHR 502; Bohler-Muller 2000 (2) Codicillus 2, 2001 Obiter
150–151; Bennett, Mills and Munnick 2009 SAJHR 341–345, 349–350.
 3
THE LEGAL REQUIREMENTS FOR A
CIVIL MARRIAGE

3.1 Introduction
A civil marriage is traditionally defined as the legally recognised life-long voluntary union
between one man and one woman to the exclusion of all other persons.1 However, the high
divorce rate makes a mockery of the notion that civil marriage is a life-long union. Therefore,
a more modern version of the definition is that a civil marriage refers to the legally recog-
nised voluntary union of one man and one woman to the exclusion of all other persons
(although the latter part of the definition might also have to be deleted in view of the fre-
quent tolerance of adultery). The definition of a civil marriage highlights one of the differ-
ences between civil marriages on the one hand and customary, Muslim and Hindu marriages
on the other, for it refers to a union between one man and one woman, while customary,
Muslim and Hindu marriages permit polygyny (that is, husbands are allowed to take more
than one wife).2 The definition also indicates the main difference between civil marriages and
unions under the Civil Union Act 17 of 2006, for the Act permits civil unions between parties
of the same sex.3
Because a civil marriage is a voluntary union based on consensus (that is, agreement), it is
frequently called a contract.4 A contract is an agreement which is entered into with the inten-
tion of creating obligations. Although a civil marriage does give rise to obligations, the cre-
ation of obligations is not its primary object. There are so many differences between a con-
tract and a civil marriage as a type of agreement that it is undesirable to describe a civil
marriage as a type of contract.5

________________________

1 See eg Seedat’s Executors v The Master (Natal) 1917 AD 302 309.

2 In Hindu marriages monogamy is the approved norm, but polygyny does exist. On customary, Muslim and
Hindu marriages, see chs 17–19 below. The word “polygamy” is often used to describe the practice whereby
a husband is allowed to take more than one wife, but this is, strictly speaking, incorrect because polygamy
permits both sexes to have more than one spouse. Polyandry refers to the practice of allowing a woman to
have more than one husband: see eg Allen (consultant ed) The Penguin English Dictionary 681 and 682;
Soanes and Stevenson (eds) Concise Oxford English Dictionary 1111 and 1112.
3 S 1 of the Civil Union Act 17 of 2006. On civil unions, see ch 16 below.
4 See eg Prinsloo’s Curators Bonis v Crafford and Prinsloo 1905 TS 669; Pienaar v Pienaar’s Curator 1930 OPD 171;
Volks v Robinson 2005 (5) BCLR 446 (CC); Minister of Home Affairs v Fourie (Doctors for Life International, Amici
Curiae); Lesbian and Gay Equality Project v Minister of Home Affairs 2006 (3) BCLR 355 (CC), 2006 (1) SA 524
(CC).
5 See eg Ex parte AB 1910 TS 1332; Holland v Holland 1973 (1) SA 897 (T); Mahendra v Framashnee Case 8422/
2006, 21 May 2007 (W) (unreported); Van der Linden 1.3.1; Christie and Bradfield Contract 135; Visser and
Potgieter 4; Aquilius 1944 SALJ 239. For a list of some of the differences between a civil marriage and an
ordinary contract, see Joubert in Clark (ed) Family Law Service par A5.

13
14 South African Family Law

3.2 Capacity to act

3.2.1 General
Because a civil marriage is based on agreement, the parties must have capacity to act in order
to be able to enter into a valid civil marriage. Therefore, persons who have no capacity to act,
such as the mentally ill and infantes (that is, persons below seven years of age), are totally
incapable of entering into a civil marriage.6 Others, like minors who are over the age of
puberty (12 years for girls and 14 years for boys), need consent to supplement their limited
capacity to act.

3.2.2 Declared prodigals

The Roman-Dutch writers were divided on the question of whether an interdicted prodigal
may enter into a valid civil marriage without his or her curator’s consent.7 Our case law does
not provide us with a clear answer to the question either. In Pienaar v Pienaar’s Curator 8 an
analogy was sought between the civil marriage of a person who has been placed under cura-
torship because mental or physical inability has rendered him or her incapable of managing
his or her own affairs and the civil marriage of a declared prodigal, but the court rejected this
analogy. De Villiers JP concluded that someone who has been placed under curatorship
because he or she is unable to manage his or her own affairs may enter into a civil marriage
without his or her curator’s consent if he or she actually has capacity to act when marrying.9 A
declared prodigal, in contrast, may not enter into a civil marriage without having obtained his
or her curator’s consent, or, if he or she does marry without such consent, the civil marriage
is out of community of property. This case does not provide us with a clear answer to the
question of whether the civil marriage of a declared prodigal is completely invalid if it is
concluded without the curator’s consent, or whether it is valid but out of community of
property. In Mitchell v Mitchell 10 this state of uncertainty was left unresolved.
Modern South African writers unanimously adopt the view that the prodigal may enter into
a civil marriage without his or her curator’s consent.11 It is still unclear, however, which matri-
monial property system operates in such a marriage. The weight of academic opinion favours
the rule that the prodigal’s advantage determines whether the marriage is in or out of com-
munity of property,12 because selection of the matrimonial property system would otherwise
amount to an unauthorised disposition of the prodigal’s property.13
________________________

6 Sometimes people who may not enter into a civil marriage at all, eg mentally ill persons, are called abso-
lutely incompetent to marry, while persons who may enter into a civil marriage but not with each other, eg
persons of the same sex, are called relatively incompetent to marry.
7 Voet 23.1.3 and Kersteman 90 (sv “curatele”) submit that such consent is required, while Brouwer 1.4.18,
Van Bijnkershoek 2.1536 and Van Leeuwen Rooms-Hollands-Regt 4.2.3 fn (e) advocate the opposite view.
8 1930 OPD 171.
9 On the legal status of persons who have been placed under curatorship because they cannot manage their
own affairs, see Heaton Persons ch 8.
10 1930 AD 217.
11 Barratt (ed) Persons and the Family 107; Boezaart Persons 136; Heaton Persons 138; Heaton in Church (ed)
LAWSA Marriage par 22; Heaton in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 155; Kruger
and Skelton (eds) Persons 149; Joubert in Clark (ed) Family Law Service par A31; Van der Vyver and Joubert
362; Wille’s Principles 385–386; Sonnekus 2009 THRHR 139–140. On void and voidable civil marriages, and
the differences between them, see ch 4 below.
12 Barratt (ed) Persons and the Family 107; Hahlo, 5th edn, 67; Heaton in Church (ed) LAWSA Marriage par 22;
Heaton in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 155–156; Visser and Potgieter 41.
But see also Van Schalkwyk 69 who argues that since the curator controls the prodigal’s property, an un
assisted prodigal can never marry in community of property. Van der Vyver and Joubert 363 submit that a
prodigal’s civil marriage is always in community of property if it is entered into without the curator’s con-
sent because any antenuptial contract the prodigal concludes without his or her curator’s consent is invalid.
Joubert in Clark (ed) Family Law Service par A31 also adopts the view that an antenuptial contract concluded
without the curator’s consent is invalid, but he adds that any community of property which may arise from
the prodigal’s civil marriage cannot divest the curator of his or her powers over the prodigal’s property.
13 Heaton in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 155–156. On the legal status of
prodigals, see Heaton Persons ch 10.
 Chapter 3: The legal requirements for a civil marriage 15

3.2.3 Mentally ill persons

If someone is de facto (that is, in fact) mentally ill at the moment he or she enters into a civil
marriage, the marriage is void14 as a result of the person’s incapacity to act. For purposes of
concluding a civil marriage, a person is regarded as mentally ill and consequently lacking the
necessary capacity to act, not only when he or she does not understand the nature and conse-
quences of the juristic act,15 but also when he or she apparently understands the nature and
consequences of the juristic act but hallucinations caused by a mental illness prompt him or
her to enter into the marriage, thus negating his or her understanding.16
Declaring someone mentally ill does not on its own affect the person’s capacity to act. If a
person who has been declared mentally ill is of sound mind at a particular moment (that is, if
he or she is capable of understanding the nature and consequences of the juristic act and is
able to make rational judgements concerning his or her actions), he or she is considered to
have full capacity to act. A marriage which is concluded during such a lucidum intervallum
(that is, a clear moment) is valid.17 However, the fact that someone has been declared men
tally ill places the burden on him or her to prove that he or she is in fact normal, while in the
absence of a declaration of mental illness it is the person who alleges mental illness who bears
the burden of proving the mental illness.18
Owing to the highly personal nature of the juristic act, a curator may not consent to a civil
marriage on behalf of a mentally ill person.19

3.2.4 Persons who have been placed under curatorship because they are
incapable of managing their own affairs
In Pienaar v Pienaar’s Curator 20 it was held that someone who is not mentally ill but is subject to
curatorship because he or she is incapable of looking after his or her own affairs, for example
because of a disability or chronic illness, can nevertheless conclude a civil marriage without
the consent of his or her curator if he or she actually has capacity to act when marrying.21
That is to say, the person may marry if he or she is able to understand the nature and conse-
quences of the juristic act and make rational judgements concerning his or her actions at the
time of getting married.
If a curator has not yet been appointed for a person who is de facto incapable of managing
his or her affairs, the person’s capacity to enter into a civil marriage must be determined in
accordance with the ordinary test for determining capacity to marry, namely whether the per-
son has the mental ability to understand the nature and consequences of the marriage and is
able to make rational judgements concerning his or her actions at the time of getting married.
In Francescutti v Francescutti; Ex parte Francescutti 22 it was wrongly held that incapacity to manage
23
one’s own affairs invariably results in incapacity to marry.

________________________

14 On void civil marriages, see ch 4 below.

15 Vermaak v Vermaak 1929 OPD 13; Uys v Uys 1953 (2) SA 1 (E).
16 Lange v Lange 1945 AD 332.
17 Prinsloo’s Curators Bonis v Crafford and Prinsloo 1905 TS 669.
18 Ibid.
19 Brouwer 2.4.23, 2.4.27–2.4.30; Voet 23.2.6; Lange v Lange 1945 AD 332. On the legal status of mentally ill
persons, see further Heaton Persons ch 7.
20 1930 OPD 171.
21 On the legal status of persons who have been placed under curatorship because they cannot manage their
own affairs, see Heaton Persons ch 8.
22 2005 (2) SA 442 (W).
23 See also Sonnekus 2009 THRHR 142.
16 South African Family Law

3.2.5 Minors
(a) General
Minors between seven and 18 years of age have limited capacity to act and therefore cannot
conclude valid juristic acts by means of which they incur obligations, unless they have the
consent of their parents or legal guardians. Such consent is therefore also required for a
24
minor to enter into a valid civil marriage. Section 24(1) of the Marriage Act 25 of 1961
specifically provides that a marriage officer may not solemnise a minor’s marriage “unless the
consent . . . which is legally required for the purpose of contracting the marriage has been
granted and furnished to him in writing”. Whether the requirement that the consent must be
“in writing” means that oral consent is invalid, is unclear. At common law the consent could
be given orally. Most authors argue that this is still the law and that the marriage is not invalid
if consent is given orally.25
Section 27 of the Marriage Act further lays down that if a marriage officer reasonably sus-
pects that a prospective spouse is of an age at which he or she may not enter into a civil
marriage without consent, the marriage officer may refuse to solemnise the marriage unless
he or she is furnished with the written consent or satisfactory proof that consent is not needed.
In addition, section 12 of the Act stipulates that a marriage officer may not solemnise a civil
marriage unless each of the parties either produces his or her identity document or furnishes
the marriage officer with a prescribed affidavit. Both documents reflect the age of the parties.
Unless the minor produces a false identity document or affidavit or false consent, it is there-
fore highly unlikely that he or she would be able to enter into a civil marriage without the
required consent.
(b) Consent which is required for the civil marriage of a minor
(i) The parents
If a child was born of married parents and both parents are still alive, both of them must con-
sent to the civil marriage, unless the court orders otherwise or sole guardianship has been
granted to one of them.26 This applies even if the parents are divorced. If one of the parents is
dead, the consent of the surviving parent is sufficient.27
If the minor was born of unmarried parents, both of whom have guardianship over him or
her, both parents’ consent is required for the minor’s civil marriage.28 If the minor’s father
does not have guardianship, the mother’s consent is sufficient.29 In the extremely unlikely
event that the minor’s mother is herself still a minor when her child wants to enter into a civil
marriage,30 the mother’s consent would not be required. Instead, her guardian’s consent
would be required, unless the child’s father had guardianship of the child, in which case the
child’s father’s consent would be required.31
If sole guardianship has been awarded to one of the parents, only that parent’s consent is
required.32 If somebody shares guardianship with the child’s parent,33 this legal guardian’s

________________________

24 On the undesirability of marriage by minors, see Müller 2014 Speculum Juris 202.
25 Heaton in Church (ed) LAWSA Marriage par 29; Heaton in Van Heerden et al (eds) Boberg’s Law of Persons
and the Family 837 fn 4; Lee and Honoré par 47(i); Sinclair assisted by Heaton 370; Van der Vyver and
Joubert 503; Visser and Potgieter 43 fn 28; Wille’s Principles 246–247. But see also De Vos 1974 Acta Juridica
259 who argues that failure to provide the consent in writing results in nullity of the marriage.
26 S 18(3)(c)(i) and (5) read with ss 19(1) and 20 of the Children’s Act; see also s 5(1) of the Matrimonial
Affairs Act 37 of 1953 and s 6(3) of the Divorce Act 70 of 1979.
27 S 18(3)(c)(i) and (5) of the Children’s Act.
28 S 18(3)(c)(i) and (5) read with ss 19(1) and 21 of the Children’s Act.
29 S 18(3)(c)(i) and (5) of the Children’s Act.
30 As the youngest age at which a boy may marry is 14 years and the youngest age at which a girl may marry is
12 years (see below in this chapter), the scenario in the text could occur only if the mother gave birth at
the age of six years or less!
31 Ss 18(3)(c)(i) and 19(2) of the Children’s Act.
32 S 18(4) of the Children’s Act.
33 A person can share guardianship with a parent in terms of a parental responsibilities and rights agreement
continued
 Chapter 3: The legal requirements for a civil marriage 17

consent must also be obtained, for section 18(5) of the Children’s Act 38 of 2005 states that
the consent of all the persons who have guardianship is necessary for the minor’s marriage. If
the legal guardian exercises guardianship to the exclusion of the minor’s parent, only the
legal guardian’s consent is necessary.34
(ii) The legal guardian
A parent who is the sole guardian of a child may appoint a fit and proper person in his or her
will to act as the child’s legal guardian after the parent’s death.35 If the child is orphaned with-
out a legal guardian having been appointed, the High Court and the Master of the High
Court may appoint a legal guardian to a minor whose interests require this.36 The minor must
obtain his or her legal guardian’s permission to enter into a civil marriage.37
To guard against abuse of the minor and to protect the child’s best interests, a legal guard-
ian cannot consent to a civil marriage between himself or herself and the minor. If a legal
guardian and his or her ward want to enter into a civil marriage, they must obtain the consent
of the High Court.38
(iii) The Minister of Home Affairs
Section 26(1) of the Marriage Act provides that a boy below the age of 18 years and a girl
below the age of 15 years may not marry without the written consent of the Minister of Home
Affairs. As the age of majority is 18 years,39 the requirement in section 26(1) means that all
male minors must obtain the Minister’s consent.
Section 26(1) prescribes that the Minister may only grant consent if he or she considers the
marriage desirable. The section further provides that if the Minister’s consent is obtained, all
the other legal requirements still have to be complied with. This means that the consent of
the minor’s parent(s) or legal guardian must also be obtained, that the prescribed formalities
must be met, and so forth. The section further provides that the Minister’s consent is not re-
quired if the court has consented to the marriage.
If a male minor or a girl below the age of 15 years enters into a civil marriage without min-
isterial consent, the marriage is null and void, unless the Minister ratifies the marriage.40 In
terms of section 26(2), the Minister may ratify the marriage if he or she considers the mar-
riage desirable and in the interests of the parties, the marriage was in all other respects
solemnised in accordance with the provisions of the Marriage Act, and there is no other
lawful impediment to the marriage.41
Section 26 contains no clear directive on whether or not persons below the age of puberty
may conclude a civil marriage. The weight of modern opinion favours the view that the sec-
tion does not amend the common law in this respect, so that the Minister’s power only ap-
plies to civil marriages of girls between 12 and 15 years of age and boys between 14 and 18
years of age.42
________________________

or a court order: see ch 23 below.

34 S 18(3)(c)(i) and (5) of the Children’s Act.
35 S 27(1)(a) of the Children’s Act; s 5(3) of the Matrimonial Affairs Act. See further chs 23 and 24 below.
36 See ch 24 below.
37 S 18(3)(c)(i) and (5) of the Children’s Act.
38 On a marriage between a minor and his or her legal guardian, see further below in this chapter.
39 S 17 of the Children’s Act.
40 S 26(1) and (2) of the Marriage Act 25 of 1961.
41 See also s 26(3) of the Marriage Act.
42 Barratt (ed) Persons and the Family 63, 64; Boezaart Persons 84; Heaton Persons 104; Heaton in Church (ed)
LAWSA Marriage par 23; Heaton in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 836 fn 2;
Kruger and Robinson in Robinson (ed) Law of Children and Young Persons 16; Kruger and Skelton (eds) Per-
sons 129; Lee and Honoré par 41; Sinclair assisted by Heaton 367; Van der Vyver and Joubert 172, 486–487;
Van Schalkwyk 70; Visser and Potgieter 51; Menge 1956 SALJ 450; Spiro 1960 THRHR 5; Van der Walt 1961
continued
18 South African Family Law

Because the difference in the ages below which girls and boys are prohibited from marry-
ing is based on the biological fact that boys reach sexual maturity later than girls, it does not
constitute unfair discrimination between the sexes.43 However, the difference in ages below
which boys and girls who have passed the age of puberty must obtain the consent of the
Minister of Home Affairs may be open to constitutional attack on the ground that it amounts
to unfair sex discrimination.44
(iv) The presiding officer of the Children’s Court
The Marriage Act provides that when either or both of the minor’s parents or his or her legal
guardian is absent, mentally ill or in any other way incompetent to consent to the minor’s
civil marriage, or when the minor cannot for any other good reason obtain the consent of his
or her parent(s) or legal guardian, consent may be granted by the presiding officer of the
Children’s Court.45 The presiding officer may, however, not grant consent if the parent(s) or
legal guardian withholds consent. In such event, the High Court must be approached for
consent in terms of section 25(4) of the Marriage Act.46
When deciding whether to grant consent to the minor’s civil marriage the presiding officer
must also determine whether it is in the minor’s interests to enter into an antenuptial con-
tract. If the presiding officer is satisfied that it is in the minor’s interests, he or she must
ensure that such a contract is entered into before consenting to the marriage. The presiding
officer must assist the minor in the execution of the antenuptial contract and his or her assist-
ance is deemed to be the assistance of the minor’s parent or legal guardian.47 If the presiding
officer refuses to consent to the marriage, the minor may approach the High Court for con-
sent in terms of section 25(4) of the Marriage Act.
(v) The High Court
If one or both parents, the legal guardian, or the presiding officer of the Children’s Court
withholds consent, the minor may approach the High Court for permission to enter into a
civil marriage in terms of section 25(4) of the Marriage Act. For purposes of this particular
application the minor is regarded as having capacity to litigate.48

________________________

THRHR 119. See also s 12(2)(a) of the Children’s Act which provides that a child “below the minimum age
set by law for a valid marriage” may not be given out in marriage or engagement. For this provision to have
a rational meaning there must be a minimum age of marriage which is higher than the child’s date of
birth. As our law has not previously stipulated any cut-off age that is lower than the age of puberty, it seems
reasonable to assume that the minimum age the legislator had in mind when drafting the Children’s Act
was the common-law age of puberty. But see also Hahlo, 5th edn, 90; Conradie 1956 SALJ 279.
Art 2 of the United Nations’ Convention on Consent to Marriage, Minimum Age for Marriage and Registra-
tion of Marriage, to which South Africa acceded on 29 Jan 1993, requires state parties to take legislative
action to specify a minimum age for marriage, but gives no indication of what that minimum age should
be. Art 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women likewise
provides that child betrothals and marriages are without legal effect and requires state parties to take all
necessary action to specify a minimum age for marriage, but it too does not specify a minimum age. How-
ever, art 21(2) of the African Charter on the Rights and Welfare of the Child, which South Africa has also
ratified, specifies that the minimum marriageable age must be 18 years. See further Müller 2014 Speculum
Juris 202.
43 Cockrell Bill of Rights Compendium par 3E40; Heaton in Van Heerden et al (eds) Boberg’s Law of Persons and
the Family 836 fn 2; Van der Vyver in Robinson (ed) Law of Children and Young Persons 290, 294. S 9(3) of the
Constitution of the Republic of South Africa, 1996 prohibits unfair sex discrimination.
44 Barratt (ed) Persons and the Family 63; Heaton Bill of Rights Compendium par 3C14.2; Heaton in Van Heerden
et al (eds) Boberg’s Law of Persons and the Family 836 fn 2.
45 S 25(1) of the Marriage Act.
46 On s 25(4) of the Marriage Act, see below in this chapter.
47 S 25(2) and (3) of the Marriage Act.
48 Ex parte F 1963 (1) PH B9 (N). On a minor’s capacity to litigate, see Heaton Persons 110–111.
 Chapter 3: The legal requirements for a civil marriage 19

The court may grant consent only if it is of the opinion that the refusal by the parent, legal
guardian or presiding officer is without adequate reason and contrary to the minor’s inter-
ests. Section 25(4) lays down two tests in this regard:
(1) Is the refusal of consent without adequate reason?
(2) Is it contrary to the minor’s interests?49
In B v B 50 Milne DJP convincingly argued that these tests are complementary and must not be
considered separately. The court must take all the circumstances into account and weigh the
reasons for the parents’ refusal, with due allowance for the fact that parents are in a better
position than the court to make a decision of such a personal nature. He concluded that
the Court must ultimately decide, having weighed up the reasons for the parental refusal,
whether by its own objective standards there is “sufficient reason to justify the parental refusal”
and in doing so it must . . . be of paramount importance whether it will be in the best interests
of the minor to allow the minor to marry.51
Even if the minor’s application is unopposed the court will not inevitably override the parents’
refusal to grant consent.52
If the court grants consent, it may also make an order regarding the matrimonial property
system which is to apply in the civil marriage, and, if necessary, it may order that a curator
must be appointed to assist the minor in the execution of an antenuptial contract.53
If the minor’s parent(s) or legal guardian is absent, mentally ill, or in any other way in-
competent to consent to the minor’s civil marriage, or if the minor can for any other good
reason not obtain the consent of his or her parent(s) or legal guardian, he or she may not
approach the High Court in terms of section 25(4) unless he or she has already applied for
consent to the presiding officer of the Children’s Court in terms of section 25(1).54 In other
words, the minor may not bypass the presiding officer of the Children’s Court by applying
directly to the High Court.
(c) Instances in which a minor requires no consent to enter into a civil marriage
A minor who has previously entered into a valid civil or customary marriage and whose
marriage has been dissolved by death or divorce may remarry without consent because he or
she attained majority upon entering into the first marriage55 and the dissolution of the mar-
riage did not revive his or her minority.56 As the Civil Union Act restricts civil unions to
adults,57 the issue of the capacity to enter into a civil marriage of a minor who previously
entered into a civil union does not arise.

________________________

49 Allcock v Allcock 1969 (1) SA 427 (N), Heaton and Kruger Casebook on Family Law case [4]; see also De Greeff v
De Greeff 1982 (1) SA 882 (O).
50 1983 (1) SA 496 (N), Heaton and Kruger Casebook on Family Law case [5]; see also Kruger v Fourie 1969 (4)
SA 469 (O).
51 501H; see also C v T 1965 (2) SA 239 (O). The person who refuses consent must be given the opportunity
to put his or her objections before the court: Jinnah v Laattoe 1981 (1) SA 432 (C).
52 De Greeff v De Greeff 1982 (1) SA 882 (O).
53 C v T 1965 (2) SA 239 (O).
54 Ex parte Visick 1968 (1) SA 151 (D); Ex parte Balchund 1991 (1) SA 479 (D).
55 S 24(2) of the Marriage Act. The section refers to a “valid marriage”. At the time when the Marriage Act was
drafted, the legislator clearly had only a civil marriage in mind. However, because s 2 of the Recognition of
Customary Marriages Act 120 of 1998 now recognises customary marriages as valid, the phrase “valid mar-
riage” in s 24(2) of the Marriage Act should be interpreted to cover a valid customary marriage too. Fur-
ther, as s 6 of the Recognition of Customary Marriages Act confers “full status and capacity” on wives in
customary marriages, and husbands in customary marriages always acquired adult status and capacity upon
entering into a customary marriage, minors of both sexes now obtain majority status when they enter into a
valid customary marriage. On customary marriages, see ch 17 below.
56 Voet 4.4.6; Cohen v Sytner (1897) 14 SC 13.
57 See the definition of “civil union” in s 1 of the Civil Union Act. On civil unions, see ch 16 below.
20 South African Family Law

(d) The effect of absence of the necessary consent

(i) The effect on the validity of the civil marriage
In terms of section 26(2) of the Marriage Act, a marriage entered into without ministerial
consent (when such consent was required) is null and void unless the Minister subsequently
ratifies it because it is desirable and in the parties’ interests that he or she do so and because
the marriage in all other respects complies with the Marriage Act.58
In terms of section 24A(1) of the Marriage Act, the civil marriage of a minor who fails to
obtain the necessary consent from his or her parent(s), legal guardian, or the presiding officer
of the Children’s Court is voidable.59 The marriage may be set aside by the court on applica-
tion by either of the following applicants:
(1) The minor’s parent(s) or legal guardian, before the minor attains majority and within six
weeks from the date on which he or she or they become aware of the existence of the
marriage.
(2) The minor, before he or she attains majority or within three months thereafter.
The court may not set the marriage aside unless it is satisfied that the dissolution of the
marriage is in the minor’s interest.60 The Act does not stipulate which factors are to be taken
into account in arriving at this decision. Presumably, the factors which guide the court in an
application in terms of section 25(4) for replacement of consent to enter into a civil marriage
will be taken into account.61
If an application for dissolution is not made within the periods mentioned above, the civil
marriage becomes unassailable and continues to exist until it is dissolved by death or divorce.
(ii) The effect on the patrimonial consequences of the civil marriage
Section 24 of the Matrimonial Property Act 88 of 1984 governs the patrimonial consequences
of a civil marriage a minor entered into without consent. It distinguishes between marriages
which are set aside and those that are not.
The patrimonial consequences if the civil marriage is set aside
Section 24(1) of the Matrimonial Property Act regulates the patrimonial consequences of the
civil marriage if it is dissolved because of lack of consent. The section provides that the court
may make an order with regard to the division of the matrimonial property of the spouses “as
it may deem just”. The court clearly has a very wide discretion and can order any arrangement
it considers suitable concerning the division of the spouses’ assets. Section 24(1) contains no
guidelines for the exercise of this judicial discretion. The court will probably have regard to
such factors as the respective ages of the parties, their financial circumstances, their wishes
________________________

58 S 26(2) of the Marriage Act.

59 On voidable civil marriages, see ch 4 below.
60 S 24A(2). Whether the court will dissolve a civil marriage in which both parties are minors who married
without the necessary consent if it is in the interests of one that the marriage be dissolved and in the inter-
ests of the other that it be allowed to stand, is unclear. Hahlo, 5th edn, 94 submits that the court will be
inclined to dissolve the marriage, but Joubert in Clark (ed) Family Law Service par A28 suggests that the
court cannot dissolve the marriage unless dissolution is in the interests of both minors. Sinclair assisted by
Heaton 372 supports Joubert’s view.
61 It must be borne in mind, however, that there is a material difference between judicial consent to enter
into a marriage and judicial dissolution of a minor’s marriage. In the former situation the court has to be
satisfied that the parents’ refusal of consent is without adequate reason and contrary to the minor’s inter-
ests, ie that the marriage is in the minor’s interests. When an order dissolving the minor’s marriage is
sought, the court has to be satisfied that dissolution is in the minor’s interests, ie that the marriage is not in
the minor’s interests: Heaton in Church (ed) LAWSA Marriage par 47 fn 4; Heaton in Van Heerden et al
(eds) Boberg’s Law of Persons and the Family 843 fn 25; Sinclair assisted by Heaton 372. See also Visser and
Potgieter 46 who submit that the mere fact that the minor’s parents oppose the marriage or that the minor
no longer wishes to continue with the marriage is an insufficient reason. However, the court will not ignore
the minor’s unwillingness to stay married: Van der Vyver and Joubert 508.
 Chapter 3: The legal requirements for a civil marriage 21

and whether the major spouse took advantage of the inexperience of the minor spouse and
benefited at the latter’s expense.62
The patrimonial consequences if the civil marriage is not set aside
Section 24(2) of the Matrimonial Property Act regulates the patrimonial consequences if the
civil marriage is not dissolved. It provides that, in such event,
the patrimonial consequences of the marriage are the same as if the minor were of age when the
marriage was entered into and any antenuptial contract in terms of which the accrual system is
included and which has been executed with a view to such a marriage, is deemed to have been
validly executed.
The legislator seems to leave only two possibilities open to the minor:
(1) If the parties did not enter into an antenuptial contract, the primary matrimonial prop-
erty system, namely community of property, applies.63
(2) If the parties entered into an antenuptial contract which includes the accrual system,64
the antenuptial contract is valid even though the minor did not have the necessary con-
sent to conclude the contract.
Section 24(2) does not expressly deal with an antenuptial contract in which the accrual sys-
tem is excluded. Some authors are of the opinion that such an antenuptial contract must also
be deemed to have been validly executed.65 Their view is based on the wording of the first part
of section 24(2), which deems the minor to have been “of age when the marriage was entered
into”. These words suggest that effect should be given to whatever matrimonial property sys-
tem the spouses chose. According to this interpretation, the second part of the section (“and
any antenuptial contract in terms of which the accrual system is included and which has been
executed with a view to such a marriage, is deemed to have been validly executed”) is merely
a superfluous reference to one particular matrimonial property system which is valid – just as
any other matrimonial property system would be if it were chosen by the couple.
Critics of this interpretation point out that it renders the second part of section 24(2)
meaningless, which violates the principle of interpretation of statutes that the legislator is pre-
sumed not to make meaningless enactments. To give meaning to the second part of the sec-
tion, the maxim inclusio unius est exclusio alterius (that is, specific inclusion of one implies the
exclusion of the other) is invoked and it is argued that section 24(2) does not apply to an
antenuptial contract in which the accrual system is excluded. This means that the law has not
been reformed in this respect, and that the antenuptial contract is invalid and the civil marriage
is in community of property because community of property applies in the absence of an
antenuptial contract.66 A variation of the interpretation which relies on the maxim inclusio
unius est exclusio alterius is that the wording of the second part of section 24(2) renders the
clause in the antenuptial contract which excludes the accrual system invalid, with the result
that the marriage is out of community of property but subject to the accrual system.67 The
implication of both variations of the argument is that the minor’s civil marriage cannot from
its inception be subject to complete separation of property.68 The result is that the financial
________________________

62 See also Church and Church in Church (ed) LAWSA Marriage par 111; Heaton in Van Heerden et al (eds)
Boberg’s Law of Persons and the Family 844–845; Kruger and Robinson in Robinson (ed) The Law of Children
and Young Persons in South Africa 39; Sinclair assisted by Heaton 374.
63 Community of property is discussed in ch 6 below.
64 The accrual system is discussed in ch 7 below.
65 Barratt (ed) Persons and the Family 65; Church and Church in Church (ed) LAWSA Marriage pars 111 and
115; Hahlo, 5th edn, 94 and 265; Sinclair 61; Van der Vyver and Joubert 582; Visser and Potgieter 155; Viss-
er 1996 De Jure 159, 161.
66 See also Van Schalkwyk 259; Sonnekus 2009 THRHR 146–147.
67 Sinclair assisted by Heaton 376.
68 If the spouses want their marriage to be subject to complete separation of property, they will have to obtain
a postnuptial court order in terms of s 21(1) of the Matrimonial Property Act, authorising them to enter
into a notarial contract which excludes community of property, community of profit and loss and the
continued
22 South African Family Law

interests of only some minors who married without consent and whose civil marriages are not
set aside, are protected. The failure of section 24(2) to protect those minors whose interests
would best be served by complete separation of property is open to constitutional attack on
the ground that it constitutes an unjustifiable denial of equality before the law and equal
protection and benefit of the law and unjustifiably violates the injunction that the child’s best
interests must be of paramount importance in every matter concerning the child.69
Another issue which arises in respect of section 24(2) is whether an informal antenuptial
contract, purporting only to regulate the property rights of the spouses as between them-
selves, and not as against third parties, falls within the ambit of the section. On the one hand
it could be argued that, since the first part of section 24(2) suggests that minors are to be
treated like majors and an informal antenuptial contract between majors is effective as between
them, a minor’s informal antenuptial contract should also be valid as between the spouses.70
On the other hand, the word “executed” in the second part of the provision implies that an
informal antenuptial contract is invalid, even if it includes the accrual system.71
(iii) The effect of the Matrimonial Property Act on a civil marriage a minor concluded without consent
before the commencement of the Act
It is not clear whether section 24 of the Matrimonial Property Act and section 24A of the
Marriage Act also apply to a civil marriage a minor entered into before the commencement of
the Matrimonial Property Act. Neither section contains explicit provisions as to its retro-
activity. The wording of section 24A of the Marriage Act is slightly clearer than that of section
24 of the Matrimonial Property Act in that it provides that “[n]otwithstanding anything to the
contrary contained in any law or the common law” the civil marriage is voidable. The quoted
phrase suggests that section 24A applies regardless of when the marriage was concluded since
the phrase entails that any legal provision which differs from the section is to be ignored.
Furthermore, it seems that the intention of the legislator was to settle the uncertainty sur-
rounding the consequences of a civil marriage entered into by a minor without the requisite
72
consent. It is submitted that, in keeping with the purposive approach, effect should be given
to this intention and that section 24A of the Marriage Act should be interpreted to apply to
all civil marriages entered into by minors without consent.73
In respect of section 24 of the Matrimonial Property Act, it could, on the one hand, be
argued that the wording of the section does not rebut the presumption that the legislator
does not intend legislation to operate with retroactive effect. On the other hand, it could be
argued that the phrase “to which a minor is a party” (emphasis added) in the section suggests
that the section applies regardless of when the minor entered into the civil marriage to which

________________________

accrual system. See ch 8 below on applications in terms of s 21(1). Complete separation of property is dis-
cussed in ch 7 below.
69 Ss 9(1) and 28(2) of the Constitution. On the constitutional arguments, see further Heaton Bill of Rights
Compendium par 3C24.
70 Church and Church in Church (ed) LAWSA Marriage par 115; Sinclair assisted by Heaton 378.
71 Sinclair assisted by Heaton 378. Hahlo, 5th edn, 265 submits that “executed” means that the antenuptial
contract must be executed and registered. However, execution and registration are not the same thing. An
antenuptial contract might be executed formally before a notary but never be registered in the deeds of-
fice. But there can never be registration without execution, for the registrar of deeds will refuse to register
an antenuptial contract that has not been properly executed by a notary: Sinclair assisted by Heaton 378
fn 46. Van Schalkwyk 259 submits that a minor’s executed but unregistered antenuptial contract is valid as
between the parties if it includes the accrual system.
72 On the purposive approach, see Cool Ideas 1186 CC v Hubbard 2014 (4) SA 474 (CC) and the discussion
immediately below.
73 The weight of academic opinion favours retroactive application of the section: Heaton in Church (ed)
LAWSA Marriage par 47 fn 1; Heaton in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 841
fn 18; Sinclair assisted by Heaton 379; Van Schalkwyk 72; Visser and Potgieter 47; Wille’s Principles 248
fn 163.
 Chapter 3: The legal requirements for a civil marriage 23

he or she “is” a party.74 Furthermore, applying the approach to interpretation of statutes that
has been laid down by the Constitutional Court, it seems that the section applies to all civil
marriages minors entered into without consent. The prescribed approach is that “the words
in a statute must be given their ordinary grammatical meaning, unless to do so would result in
an absurdity”, but that:
(a) . . . statutory provisions should always be interpreted purposively;
(b) the relevant statutory provision must be properly contextualised; and
(c) all statutes must be construed consistently with the Constitution, that is, where reasonably
possible, legislative provisions ought to be interpreted to preserve their constitutional validity.
75
This proviso ... is closely related to the purposive approach referred to in (a).
Like section 24A of the Marriage Act, section 24 of the Matrimonial Property Act seems to
have the object of putting an end to the uncertainty about minors’ civil marriages – in this
particular instance, the uncertainty in so far as the patrimonial consequences of these mar-
riages are concerned. Applying the purposive approach mentioned in (a), one would con-
clude that the section applies to all civil marriages minors entered into without the required
consent. The same applies to application of the contextual approach mentioned in (b).
Furthermore, it is certainly arguable that interpreting section 24 so as not to exclude minors
who entered into civil marriages without the requisite consent before the Matrimonial Prop-
erty Act came into operation serves the constitutional objective of achieving equality. The
opposite view would entail differentiation between minors who married before the coming
into operation of the Act and those who married after the coming into operation of the Act.
This differentiation would not bear a rational connection to a legitimate government purpose
and would therefore violate the right to equality before the law and to equal protection and
benefit of the law which is entrenched by section 9(1) of the Constitution of the Republic of
76
South Africa, 1996. It would also not comply with the instruction in section 28(2) of the
Constitution that paramountcy must be afforded to the best interests of the child. As there
does not seem to be any justification for these violations of the Bill of Rights, the differentia-
tion and the failure to afford paramountcy to the best interests of the child would be uncon-
77
stitutional. However, in keeping with the approach mentioned in (c), this unconstitutionality
could be avoided because the section could be reasonably construed to extend to all civil
marriages minors concluded without consent.
If, however, the court should arrive at the unlikely finding that section 24 of the Matrimo-
nial Property Act does not apply with retroactive effect, the provisions of the Perpetual Edict
would still apply to civil marriages entered into by minors without the necessary consent prior
to the commencement of the Act. In terms of article 17 of the Perpetual Edict, the major may
“at no time” derive any benefit from the minor’s property. This means, very simply, that the
person who marries a minor without the latter having first obtained the necessary consent,
may never obtain any patrimonial benefit from the marriage. Applying this rule, our courts
have in the past declared such civil marriages either in or out of community of property
depending upon which system was in the minor’s best interests at the time he or she entered
into the marriage.78 Consequently the courts judged the circumstances as they were at the
________________________

74 Heaton in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 841 fn 18; Sinclair 61 fn 205;
Sinclair assisted by Heaton 379–380; Wille’s Principles 248 fn 165; but see Van der Vyver and Joubert 582.
75 Cool Ideas 1186 CC v Hubbard 2014 (4) SA 474 (CC) par 28; see also Bertie van Zyl (Pty) Ltd v Minister for Safety
and Security 2009 (10) BCLR 978 (CC), 2010 (2) SA 181 (CC); SATAWU v Garvas 2012 (8) BCLR 840 (CC),
2013 (1) SA 83 (CC). See also s 39(2) of the Constitution, which provides that “[w]hen interpreting any
legislation ..., every court, tribunal or forum must promote the spirit, purport and objects of the Bill of
Rights”.
76 See Harksen v Lane 1998 (1) SA 300 (CC).
77 S 36 of the Constitution contains the limitation clause, which sets out the factors that are to be considered
in determining whether a violation (ie limitation) of a fundamental right is justifiable.
78 Ex parte Dineen 1955 (4) SA 49 (O); Ex parte Bouwer 1954 (2) PH B21 (W); Ex parte Van der Walt 1954 (1) SA
565 (C).
24 South African Family Law

inception of the marriage and then declared that the marriage was in community of property,
out of community of property with retention of community of profit and loss, or subject to
complete separation of property.

3.3 Agreement
3.3.1 General
At the moment of concluding a civil marriage, both parties must have the intention to enter
into a civil marriage with one another. During the wedding ceremony itself, the marriage
officer must expressly ask each party whether he or she accepts the other party as husband or
wife, and both parties must answer in the affirmative.79 The marriage may not be solemnised if
either party replies in the negative. If either party is a minor, he or she must personally
indicate his or her agreement.
Problems in connection with agreement arise when both parties declare their agreement at
the wedding, but it subsequently transpires that genuine agreement was absent, or that there
was a defect regarding the agreement, for example, because the parties laboured under a ma-
terial mistake or one of them agreed because of a misrepresentation, duress or undue influ-
ence.

3.3.2 Mistake
Only a material mistake excludes agreement. The only forms of material mistake which are
recognised in connection with a civil marriage are a mistake concerning the identity of the
other party (that is, error in personam) and a mistake concerning the nature of the juristic act
(that is, error in negotio). Owing to the nature of the marriage ceremony, the only form of mis-
take that occurs in practice is error in negotio. Such a mistake may occur when, for example,
one of the parties has the firm intention of entering into a civil marriage while the other is
under the impression that he or she is merely registering an engagement80 or is entering into
a customary marriage. Some authors submit that although a material mistake negates agree-
ment, the marriage should not be void but voidable. The matter has not yet been settled in
our law. Because agreement is a requirement for a valid civil marriage, its absence as a result
of a material mistake should result in nullity; in other words, the marriage should be void.81
However, if regard is had to society’s interest in the institution of marriage and, especially, the
interest of third parties to know that persons who went through an apparently legal wedding
ceremony are indeed married, it might be preferable if a material mistake did not render the
marriage void but merely voidable at the instance of the mistaken party.82
A simulated civil marriage or so-called civil marriage of convenience must be distinguished
from a civil marriage entered into while a party laboured under a material mistake. In Martens
v Martens 83 the parties entered into a civil marriage of convenience. The husband married the
wife at the request of a friend so that, as the wife of a South African citizen, the woman would
be eligible for permanent residence. Subsequently the husband tried to have the marriage
annulled. The court dismissed his claim and held that the marriage was valid as the parties

________________________

79 S 30(1) of the Marriage Act.

80 Such were indeed the facts in Benjamin v Salkander (1908) 25 SC 512; Rubens v Rubens (1909) 26 SC 617 and
Kanatopsky v Kanatopsky 1935 EDL 308; see also Johnson v McIntyre (1893) 10 SC 318. In all of the foregoing
cases the civil marriages were declared null and void because of the absence of agreement. See also Ress v
Shapiro 1914 EDL 390 and Weintraub v Weintraub 1921 CPD 595.
81 As is accepted by Van der Vyver and Joubert 492 and Visser and Potgieter 47.
82 See also Heaton in Church (ed) LAWSA Marriage par 31; Lee and Honoré par 53; Sinclair assisted by
Heaton 362; Wille’s Principles 248 fn 169.
83 1952 (3) SA 771 (W), Heaton and Kruger Casebook on Family Law case [6]. See further Maseko v Maseko 1992
(3) SA 190 (W); Kohlhaas v Chief Immigration Officer 1998 (6) BCLR 757 (ZS) (also reported as Kohlhaas v
Chief Immigration Officer, Zimbabwe 1998 (3) SA 1142 (ZSC)).
 Chapter 3: The legal requirements for a civil marriage 25

had had the intention of entering into a valid civil marriage and must have realised that they
could only terminate the marriage by divorce.
When one of the parties is mistaken about certain facts concerning the civil marriage itself
or the personal attributes of the other party, the mistake is not material unless the misunder-
standing was caused by misrepresentation by the other party. The general principle is that a
mistake which is not material is irrelevant and consequently does not constitute a ground for
dissolution of the marriage. Thus, for example, a mistake about the other party’s name, sur-
name84 or religion85 is irrelevant.

3.3.3 Misrepresentation
If one of the parties misleads the other prior to the civil marriage by making false statements
or creating a false impression by concealing information which should have been divulged,
the marriage is voidable if the misrepresentation was material. Given the unique nature of a
civil marriage, misrepresentation concerning very few matters is regarded as sufficiently
serious. Prenuptial stuprum is one of these. Thus, a husband can have the civil marriage set
aside if he can prove that at the time of the wedding, his wife concealed the fact that she was
pregnant by another man, and that he had been unaware of this state of affairs.86 The only
other instance in which a misrepresentation might possibly result in the civil marriage being
voidable is the concealment by one of the parties that he or she is either impotent or sterile.87

3.3.4 Duress
If one of the spouses was forced to consent to the civil marriage by duress, the marriage is
voidable. In Smith v Smith 88 the woman was coerced to such an extent by her father and pro-
spective husband that she was completely dazed and lacked any will of her own during the
wedding. The court concluded that the duress rendered the marriage voidable and therefore
set it aside.89

3.3.5 Undue influence

Although there is no direct authority for the premise that undue influence renders a civil
marriage voidable, it is submitted that this should be the case.90

3.4 Lawfulness
3.4.1 General
A specific civil marriage or a civil marriage between specific persons may, for a variety of
reasons, be unlawful. Generally, an unlawful civil marriage is void.
3.4.2 An existing civil or customary marriage or civil union
Civil marriages are monogamous. Therefore, neither prospective spouse may be a party to
another civil marriage, a customary marriage or a civil union when he or she enters into a
civil marriage.91 A civil marriage which is concluded in violation of this prohibition is void and
bigamous. However, the purported marriage may be putative if either or both of the spouses
________________________

84 Ex parte Boshoff 1912 OPD 32; Ex parte Lewies 1928 WLD 192.
85 Rubens v Rubens (1909) 26 SC 617; Leighton v Roos 1955 (4) SA 134 (N).
86 Stander v Stander 1929 AD 349. On this ground for annulment, see also ch 4 below.
87 On annulment of a civil marriage on the ground of impotence or sterility, see ch 4 below.
88 1948 (4) SA 61 (N), Heaton and Kruger Casebook on Family Law case [7].
89 It is immaterial whether the duress emanated from the other spouse or a third party: Barratt (ed) Persons
and the Family 240; Heaton in Church (ed) LAWSA Marriage par 33; Joubert in Clark (ed) Family Law Service
par A36; Sinclair assisted by Heaton 360; Visser and Potgieter 50. But see Van der Vyver and Joubert 499.
90 See Katzenellenbogen v Katzenellenbogen and Joseph 1947 (2) SA 528 (W); Mauerberger v Mauerberger 1948 (4) SA
902 (C); Preller v Jordaan 1956 (1) SA 483 (A).
91 Ss 3(2) and 10(4) of the Recognition of Customary Marriages Act; s 8(2) of the Civil Union Act.
26 South African Family Law

honestly believed that the civil marriage was valid.92 Thus, for example, a second civil mar-
riage would be putative if the married spouse believed in good faith that he or she was legally
divorced while this was not the case, or if the unmarried spouse was unaware of the other
spouse’s existing civil marriage.
3.4.3 Persons who are of the same sex
Although the Civil Union Act permits same-sex couples to enter into a civil union,93 civil
marriages are still reserved for people of the opposite sex.94 The rule that persons of the same
sex may not enter into a civil marriage with each other affects not only homosexual but also
transsexual persons. A transsexual person is somebody who suffers from gender-dysphoria
syndrome; in other words, anatomically the person belongs to either the male or female sex,
but psychologically the person identifies with the opposite gender.95 In terms of the Alteration
of Sex Description and Sex Status Act 49 of 2003, a person who has undergone sex reassign-
ment surgery may apply to the Director-General of Home Affairs for the alteration of his or
her sex description in the register of births.96 The application must be accompanied by re-
ports by the medical practitioners who performed the sex reassignment surgery or treatment
or by a medical practitioner with experience in carrying out such surgery or treatment.97
Section 3(2) of the Act provides that once the person’s sex description has been changed on
the register of births, he or she is deemed for all purposes to be a member of his or her new
sex. This means, inter alia, that the person may then marry someone of his or her former sex.
For example, a man who has had sex reassignment surgery to become a woman may marry a
man.

3.4.4 Adoptive parents and their adopted children

An adoptive parent may not marry his or her adopted child.98 For the rest, however, adoption
does not render a civil marriage invalid if it would otherwise have been valid. Thus, if an
adoptive parent adopted two children who were not related by either blood or affinity and
could therefore legally enter into a civil marriage with each other, they would be able to
marry despite the adoption.

3.4.5 Persons who are within the prohibited degrees of relationship

(a) General
Our law prohibits a civil marriage between persons who are within certain degrees of relation-
ship.99 Civil marriages which violate this prohibition are void. Although most of the impedi-
ments were originally laid down by the Political Ordinance, amendments were made by the
Marriage Act. Before discussing the prohibitions, we explain the concepts of “consanguinity”
and “affinity”, as a proper grasp of these terms is vital for understanding the prohibited
degrees of relationship.
Consanguinity refers to blood relationship; in other words, it refers to the relationship
which is created by birth between persons who have at least one common ancestor. It is

________________________

92 Putative civil marriages are discussed in ch 4 below.

93 Ss 1 and 8(6) of the Civil Union Act.
94 W v W 1976 (2) SA 308 (W); Simms v Simms 1981 (4) SA 186 (D).
95 South African Law Commission Report on the Investigation into the Legal Consequences of Sexual Realignment and
Related Matters Project 52 par 2.2.1; Strauss 1970 CILSA 348. A transsexual must be distinguished from an
intersexual. Intersexuals are hermaphrodites and pseudo-hermaphrodites, ie people who have the gonads
and/or genitalia of both sexes: South African Law Commission op cit par 2.2.2; Strauss op cit 348 fn 3.
96 S 2(1). On the possible unconstitutionality of the Act’s failure to accommodate transsexuals who are
unwilling or unable to undergo sex reassignment, see Visser and Picarra 2012 SAJHR 527–530.
97 S 2(2).
98 S 242(2)(c) and (3) of the Children’s Act.
99 The precise origin of these taboos is uncertain. The most important reasons for the impediments seem to
be biological, socio-economic, ethical-moralistic and/or religious: Labuschagne 1990 TSAR 416.
 Chapter 3: The legal requirements for a civil marriage 27

irrelevant whether the relationship arose as a result of birth out of married or unmarried
parents. Consanguinity may exist in either the direct line, that is, between ascendants and
descendants (such as father and daughter, grandmother and grandson), or the collateral line,
that is, between blood relations who are not related to one another in the direct line, but are
related through a common ancestor (such as brother and sister, cousins, uncle and niece).
Affinity refers to the relationship which comes into being between a married person and
the blood relations of his or her spouse, as a result of the marriage. For legal purposes and in
the context of civil marriages, affinity is restricted to the blood relations of the other spouse.
Thus, for purposes of a civil marriage, no relationship by affinity exists between the blood
relations of one spouse and the blood relations of the other spouse. In this way, a man’s wife’s
sister (that is, his sister-in-law) and his son’s wife (that is, his daughter-in-law) are his relations
by affinity, but they are not relations by affinity of his brother. As with consanguinity, affinity
can exist in either the direct or the collateral line. In the direct line, affinity exists between a
husband and his wife’s blood relations in the direct line and between a wife and her hus-
band’s blood relations in the direct line. For example, a husband is related by affinity in the
direct line to his mother-in-law and his stepdaughters. Affinity in the collateral line exists
between a husband and his wife’s blood relations in the collateral line and between a wife and
her husband’s blood relations in the collateral line. For example, a wife is related to her
brother-in-law by affinity in the collateral line.
(b) Blood relations in the direct line
Blood relations in the direct line (that is, ascendants and descendants) may not enter into a
civil marriage with each other. Such a marriage is absolutely forbidden. For example, no valid
civil marriage is possible between a father and his daughter or a grandfather and his grand-
daughter. This prohibition, which already existed in Roman law, was included in the Political
Ordinance, and in this way became part of our law. To illustrate:

A ancestor

B child

C grandchild

D great-grandchild

A, B, C and D are blood relations of one another in the direct line, and none of them may
enter into a civil marriage with any of the others.
(c) Collateral blood relations
Articles 6 and 7 of the Political Ordinance regulate the position in respect of a civil marriage
between collateral blood relations. These articles do not contain a general prohibition on
civil marriages between blood relations in the collateral line. A number of prohibitions are,
however, specifically mentioned: neither brother and sister, nor uncle and niece, nor grand-
uncle and grandniece are allowed to enter into a civil marriage with each other. Civil mar-
riage between cousins is permissible, however. On the basis of the foregoing information, one
can deduce a general principle, namely, that blood relations in the collateral line may not
enter into a civil marriage with each other if either of them is related to the common ancestor
within the first degree. (One degree of consanguinity separates one generation from the
generation immediately following it. Thus, to calculate the degrees of blood relationship, one
simply counts the number of people with the exception of the common ancestor. That is to
say, there are as many degrees of blood relationship as there are people, leaving out the
common ancestor.) To illustrate:
28 South African Family Law

A common ancestor

B E child

C F grandchild

D G great-grandchild

B is related to E in the second degree, to F in the third degree and to G in the fourth degree.
B may not enter into a civil marriage with E, F or G because he is related to the common
ancestor, A, in the first degree. C is related to A in the second degree, as is F. C and F may
therefore enter into a civil marriage with each other, and the same applies to C and G, D and
F, and D and G.100
(d) Relations by affinity in the direct line
In terms of article 8 of the Political Ordinance, persons who are related to one another by
affinity in the direct line may not enter into a civil marriage with each other. Thus, for exam-
ple, a man may not enter into a civil marriage with his stepdaughter, or his wife’s mother,
grandmother or granddaughter. To illustrate:

D H
K C G N
I X Y L

A O P E

J B F M

X and Y are married. X is related to H, G, E and F by affinity in the direct line and Y is related
to D, C, A and B by affinity in the direct line. Therefore, after the dissolution of his civil
marriage to Y, X may not enter into a civil marriage with H, G, E, or F. Y may likewise not
enter into a civil marriage with D, C, A or B.
(e) Relations by affinity in the collateral line
By virtue of the provisions of section 28 of the Marriage Act, there is no prohibition on a civil
marriage between a person and his or her relations by affinity in the collateral line. In the fore-
going sketch, E is Y’s daughter from a previous civil marriage and A is the son of X, also from
a previous civil marriage, while O and P are the children born of the civil marriage between X
and Y. It is important to bear in mind that a spouse only becomes related by affinity to the
other spouse’s blood relations and that the blood relations of one spouse are not related to
the blood relations of the other spouse. A and E, being stepbrother and stepsister, are not
related to each other and may thus enter into a civil marriage with each other. (A and P are
half-brother and half-sister, their common ancestor being X, and thus – both of them being
related to X in the first degree – are not allowed to enter into a civil marriage with each other.)
________________________

100 Persons are double cousins if their fathers are brothers and their mothers are sisters, or if the father and
the mother of one are respectively the brother and sister of the mother and father of the other. Ie, if two
brothers marry two sisters, or a brother and sister marry a sister and brother, their children are double
cousins. The Marriage Act permits civil marriages between double cousins.
 Chapter 3: The legal requirements for a civil marriage 29

After the dissolution of the civil marriage between X and Y, X may enter into a civil marriage
with N, L or M, while Y may enter into a civil marriage with J, K or I; in other words, they may
enter into a civil marriage with their relations by affinity in the collateral line. X, however,
may not enter into a civil marriage with H, G, E or F, and Y may likewise not enter into a civil
marriage with D, C, A or B because they are all relations by affinity in the direct line.

3.4.6 Legal guardians and their wards

A legal guardian may only enter into a civil marriage with his or her minor ward with the con-
sent of the High Court, because in such circumstances the legal guardian cannot consent to
the marriage on behalf of the minor ward.101 Before the commencement of the Matrimonial
Property Act, the legal position was that failure to obtain the court’s consent did not affect
the validity of the civil marriage but brought into operation the penalties stipulated in the
Perpetual Edict. Section 34 of the Matrimonial Property Act inserted section 24A into the
Marriage Act. Section 24A regulates the validity of a civil marriage concluded by a minor
without the consent of his or her parent(s) or legal guardian,102 but fails to spell out the effect
of failure to obtain the court’s consent to a civil marriage between a legal guardian and his or
her minor ward. As the court’s consent simply replaces that of the parent(s) or legal guardian
it may be argued that the consequences of absence of the court’s consent are the same as
those which apply if the consent of the parent(s) or legal guardian is not obtained. In both
cases, the validity of the marriage would be governed by section 24A of the Marriage Act.103
However, it could be argued that section 24A did not alter the common-law rule and that a civil
marriage which a legal guardian and ward enter into without the court’s consent is still valid.104

3.4.7 Persons who belong to different race groups

From the commencement of the Prohibition of Mixed Marriages Act 55 of 1949 on 8 July 1949
until the commencement of the Immorality and Prohibition of Mixed Marriages Amendment
Act 72 of 1985 on 19 June 1985, civil marriages between so-called “white” and “non-white” per-
sons were prohibited in South Africa. Section 7(1) of the Immorality and Prohibition of Mixed
Marriages Amendment Act repealed the Prohibition of Mixed Marriages Act in its entirety
with the result that race no longer constitutes an impediment to entering into a civil marriage.
Section 7 further provides that the Director-General of Home Affairs may direct in writing
that a civil marriage which, “but for the provisions of the Prohibition of Mixed Marriages Act,
1949, would have been a valid marriage in the Republic”, is valid for all purposes as from the
date on which it was concluded.105 Before the director-general may issue such a directive, one
of the spouses must apply for it. The other spouse must consent to the application, unless he or
she is already deceased.106 The director-general must be satisfied of the following conditions:107
(1) The civil marriage would, but for the provisions of the Prohibition of Mixed Marriages
Act, have been valid.
(2) The civil marriage has not been dissolved or declared invalid by a court on a ground
other than the provisions of the Prohibition of Mixed Marriages Act.
(3) Neither spouse married another person after the conclusion of the “mixed marriage”
and during the life of the other spouse.
If the prescribed declaration of validity is not obtained, the civil marriage remains void.108

________________________

101 See above in this chapter.

102 See above in this chapter for a discussion of s 24A of the Marriage Act.
103 See also Heaton in Church (ed) LAWSA Marriage pars 28 and 47; Wille’s Principles 245–246.
104 Sinclair assisted by Heaton 348.
105 S 7(2) and (4).
106 S 7(2).
107 S 7(4).
108 Salter v Municipality of Kirkwood 1986 (3) SA 810 (SE). Non-recognition of an interracial civil marriage
purely because the prescribed declaration has not been obtained is unconstitutional: Heaton Bill of Rights
Compendium par 3C16.1.
30 South African Family Law

3.5 The prescribed formalities

3.5.1 Marriage officers
The Marriage Act sets out the prescribed formalities for a civil marriage. A civil marriage may
only be solemnised by a marriage officer.109 Anyone who purports to solemnise a civil mar-
riage without having the necessary authority to do so, and an authorised marriage officer who
solemnises a prohibited civil marriage, is guilty of an offence.110 The prohibition does not
apply to a religious ceremony which does not purport to effect a valid civil marriage.111 Thus,
for example, anyone who is not a marriage officer and who solemnises a marriage solely in
terms of Muslim or Hindu religious rites does not commit an offence.112
All magistrates, special justices of the peace, and commissioners are ex officio (that is, by
virtue of their office) marriage officers for the district or area in respect of which they hold
office.113 The Minister of Home Affairs may also appoint other persons as marriage officers.
Such persons include any officer in the public, diplomatic or consular service,114 and a minis-
ter of religion or anyone holding a responsible position in a religious denomination or organ-
isation for purposes of solemnising marriages in accordance with Christian, Jewish, Muslim or
Indian religious rites.115 Persons who are appointed as marriage officers on account of the
religious office they hold, retain their authority only for as long as they remain ministers of
religion or occupy their responsible position.116 Anyone who is appointed as a marriage officer
by virtue of being a minister of religion or occupying a position of responsibility in a religious
denomination or organisation may refuse to solemnise a civil marriage that will not be in
accordance with the rites, formularies, tenets, doctrine or discipline of his or her religious
denomination or organisation.117
A person who has been appointed as a marriage officer outside the borders of the Republic
may only solemnise a civil marriage if both parties are South African citizens and are domi-
ciled in South Africa.118
If anyone acted as a marriage officer in a specific area, for a specific period of time, or in
respect of a specific civil marriage without actually being a duly appointed marriage officer,
the Minister of Home Affairs may direct in writing that the person shall for all purposes be
deemed to have been a marriage officer during such period, within such area, or in respect of
the particular civil marriage. Before the Minister issues such a directive, he or she must be sat-
isfied that the person believed in good faith that he or she was a duly appointed marriage
officer, or that both spouses believed in good faith that the marriage officer had been duly
appointed.119 A civil marriage which was solemnised by someone who is deemed to have been
a marriage officer is valid and binding if all the other requirements for a valid civil marriage
have been met.120

________________________

109 S 11(1).
110 S 11(2).
111 S 11(3).
112 On purely religious Muslim and Hindu marriages (ie those that are not solemnised in terms of the
Marriage Act), see chs 18 and 19 below.
113 S 2(1) of the Marriage Act.
114 S 2(2) read with s 4. A foreign diplomatic or consular officer serving in South Africa is not a marriage
officer in terms of the Act. In Santos v Santos 1987 (4) SA 150 (W) a Portuguese vice-consul purported to
solemnise a civil marriage between parties who were domiciled in South Africa at the time. The court de-
clared the marriage invalid.
115 S 3(1).
116 Ss 3(1), 7 and 8.
117 S 31.
118 S 10(1)(a).
119 S 6(1) and (2).
120 S 6(3).
 Chapter 3: The legal requirements for a civil marriage 31

3.5.2 Formalities preceding the marriage ceremony

Anyone who wishes to raise an objection to an intended civil marriage must lodge the objec-
tion with the marriage officer who is to solemnise the marriage.121 The marriage officer must
inquire into the grounds on which the objection is based and may only solemnise the marriage
if he or she is satisfied that there is no lawful impediment to it.
A marriage officer may not solemnise a civil marriage unless each party furnishes his or her
identity document or the prescribed affidavit.122

3.5.3 Formalities during the marriage ceremony

The Marriage Act requires that both parties must be personally present at the solemnisation
of their civil marriage. Thus, no one can conclude a valid civil marriage through a representa-
tive (that is, by proxy).123
A civil marriage may be solemnised at any time and on any day of the week, but a marriage
officer is not obliged to solemnise a civil marriage at any other time than between 08:00 and
16:00.124
In terms of section 29(2) of the Act, the marriage must (“shall”) be solemnised in a church
or other building used for religious services or in a public office or private dwelling house
with open doors and in the presence of the parties themselves, and at least two competent wit-
nesses.125 However, the marriage may be solemnised somewhere else if either of the parties
cannot be present at any of the above-mentioned places because of a serious or longstanding
illness. Section 29(2) is couched in imperative language, and non-compliance with this
subsection should therefore, strictly interpreted, render the civil marriage void. However, in
Ex parte Dow 126 it was held that this is not the case. Here a husband applied for annulment of
his civil marriage on the ground that it had been solemnised in the garden of a private dwell-
ing house and not “in” the house as is required by section 29(2). Broome J examined the
objects sought to be achieved by the provision and the changes which had taken place in the
formalities required for the conclusion of a valid civil marriage through the centuries (such as
the abolition of the need for the publication of banns and special licenses to marry), and
concluded that the object of these provisions had been to avoid clandestine marriages.127 All
the provisions which had previously served to inform the public of an intended civil marriage
have been abolished. He further pointed out that, in terms of section 24A of the Marriage
Act, a civil marriage entered into by a minor without the necessary consent is not void, but
may on application be dissolved by a court.128 Similarly, section 26 provides that boys below 18
years of age and girls below 15 years of age cannot conclude a valid civil marriage without the
permission of the Minister of Home Affairs, but if such consent is not obtained, the Minister
may ratify the marriage. Broome J felt that in these situations there were far more compelling
reasons to treat the marriage as void ab initio (that is, from its inception), but the Act did not
do so. He concluded that a civil marriage is such an important relationship, and the conse-
quences of a decree of nullity are so far-reaching, that the legislator could not have intended

________________________

121 S 23.
122 S 12.
123 S 29(4).
124 S 29(1).
125 The South African Law Commission has recommended complete freedom regarding the place at which a
wedding may be conducted: Report on the Review of the Marriage Act 25 of 1961 par 2.22.54.
126 1987 (3) SA 829 (D), Heaton and Kruger Casebook on Family Law case [8].
127 Prior to 1970, the Marriage Act required parties who wanted to enter into a civil marriage to publish
banns before their respective congregations or to publish a notice at their local magistrate’s office. This
served the purpose of advertising the forthcoming marriage so that interested parties had the opportunity
of objecting to it. The couple could avoid giving such notice to the community in general by obtaining a
special licence from a magistrate authorising the marriage.
128 See above in this chapter.
32 South African Family Law

the marriage to be void if “the two-letter word ‘in’ ” was not complied with.129 The application
was accordingly dismissed. In view of the approach to interpretation of statutes that has been
130
dictated by the Constitutional Court, the lenient approach in Ex parte Dow is likely to be
followed in future.
In all marriage ceremonies, the prescribed marriage formula must be adhered to. The
marriage officer must put the following question to each of the parties separately:
Do you, A.B., declare that as far as you know there is no lawful impediment to your proposed
marriage with C.D. here present, and that you call all here present to witness that you take C.D.
as your lawful wife (or husband)?
The parties must reply in the affirmative. If they do not, the wedding cannot proceed. If they
do reply in the affirmative, they must give each other the right hand and the marriage officer
then declares that the parties have been lawfully married.131 It is at this moment that the civil
marriage legally comes into existence. If there is an error, omission or oversight with regard
to the question, declaration, or giving of the right hand, the marriage is nevertheless valid if
the error, oversight or omission was committed in good faith or owing to a physical disability
of either spouse or both of them, and the marriage was in every other respect solemnised in
accordance with the provisions of the Marriage Act.132
The Act permits, but does not require, the blessing of the civil marriage according to reli-
gious rites. It also permits the making of rules or regulations in accordance with a particular
denomination or organisation’s religious views.133

3.5.4 Registration of the civil marriage

The marriage officer who solemnises a civil marriage, the parties thereto and two competent
witnesses must sign the marriage register immediately after the wedding.134 The marriage
officer then sends the marriage register to a regional or district representative of the Depart-
ment of Home Affairs.135 A copy of the entry in the register serves as prima facie proof (that is,
on the face of it, it constitutes proof) that the civil marriage has been solemnised. Non-
fulfilment of the registration requirements does not affect the validity of the civil marriage
and registration can be effected postnuptially.136
A duly signed marriage certificate serves as prima facie proof of the existence of the civil
marriage.137 In the absence of a marriage certificate, the existence of the civil marriage can be
proved by means of other evidence.138

________________________

129 833.
130 See above in this chapter.
131 S 30(1).
132 S 30(3).
133 Ss 30(2), 33 and 34.
134 S 29A(1).
135 S 29A(2).
136 Ex parte Efron 1940 CPD 199; Ex parte Michaelson 1941 (2) PH B57 (W).
137 Heaton in Church (ed) LAWSA Marriage par 38; Joubert in Clark (ed) Family Law Service par A4; Sinclair
assisted by Heaton 355–356; Skelton and Carnelley (eds) Family Law 52.
138 See eg Joffe v Joffe 1939 GWL 51; Ex parte Michaelson 1941 (2) PH B57 (W).
 4
VOID, VOIDABLE AND PUTATIVE
CIVIL MARRIAGES

4.1 Void civil marriages

4.1.1 The definition of a void marriage
A void civil marriage is a civil marriage which has simply never come into existence. The posi-
tion is exactly as it would have been had the “marriage” never been concluded.
4.1.2 The grounds for nullity
The court may declare a civil marriage null and void on the ground of non-compliance with
the formal or material requirements for a civil marriage.1 As a general rule, non-compliance
with the formal requirements for a civil marriage renders the marriage void.2 The Marriage
Act 25 of 1961 expressly recognises an exception to this rule, namely a civil marriage in which
an error, omission or oversight regarding the question, declaration or giving of the right
hand which forms part of the marriage formula was committed in good faith or owing to a
physical disability.3 In terms of the decision in Ex parte Dow,4 solemnisation of a civil marriage
in a garden instead of a church or other building used for religious services or a public office
or a private dwelling house with open doors5 also does not render the marriage void.
The following are examples of non-compliance with formal requirements which do render
6
a civil marriage void:
(1) The civil marriage is solemnised by someone who is not a competent marriage officer.
(2) A girl below 15 years of age or a boy below 18 years of age enters into a civil marriage
without having obtained the written consent of the Minister of Home Affairs.
(3) No witnesses are present at the civil marriage.
The following are examples of situations in which a civil marriage is void because the material
7
requirements are not met:
(1) The parties are of the same sex.
(2) One of the parties is already a party to another civil marriage, a customary marriage or a
civil union with someone else.
________________________

1 The formal and material requirements for a valid civil marriage are discussed in ch 3 above.
2 Lee and Honoré par 50 fn (n) submit that the courts ought to interpret the formal requirements in favorem
matrimonii (ie, in favour of marriage) and ought only to find that a marriage is void when a “material” for-
mal requirement has not been met. Material formalities concern the identification of the parties to the
marriage, the existence of consensus, and the participation of the state and community in the establishment
of the marriage, but not those provisions which only ensure that an orderly and dignified marriage cere-
mony takes place. See also Ex parte Dow 1987 (3) SA 829 (D); Sinclair assisted by Heaton 356–358; Van der
Vyver and Joubert 514; Visser and Potgieter 61; but see Wille’s Principles 307.
3 S 30(3) of the Marriage Act 25 of 1961. See further ch 3 above.
4 1987 (3) SA 829 (D), Heaton and Kruger Casebook on Family Law case [8]. See further ch 3 above.
5 S 29(2) of the Marriage Act.
6 See further ch 3 above.
7 See further ch 3 above.

33
34 South African Family Law

(3) The parties are related to each other within the prohibited degrees of relationship.
(4) One of the parties is below the age of puberty.
(5) One of the parties is mentally ill.

4.1.3 The consequences of a void marriage

A civil marriage that is void ab initio (that is, from the outset) does not affect the status of the
parties or confer any of the consequences of a civil marriage on the parties or their children.
As a result, no matrimonial property system operates as between the parties; the reciprocal
duty of support does not operate between them; they do not inherit intestate from one
another; they are free to enter into another civil marriage, a civil union or a customary mar-
riage; and so forth.
As nullity of the marriage is absolute, either of the parties or an interested third party may
raise it. The nullity may be raised even after the parties’ death.8 Although it is not essential to
obtain a court order declaring the marriage void, it is better to do so for purposes of legal
certainty. Therefore, a declaratory order is usually requested.9 It is important to stress that by
making an order that a marriage has been void since its inception, the court is merely con-
firming the existing position and therefore its ruling is merely declaratory. The court does
not exercise any discretion whatsoever in this regard.10
Normally, a void juristic act cannot be ratified. However, in respect of civil marriages this
rule is subject to exceptions which are contained in the Marriage Act. Firstly, as is pointed out
in chapter 3 above, a civil marriage which is solemnised by someone who is not a competent
marriage officer is void, but the Minister of Home Affairs may ratify the marriage in terms of
section 6 of the Act. Secondly, section 26(1) of the Act provides that a male minor and a girl
below the age of 15 years may not enter into a civil marriage without the permission of the
Minister of Home Affairs. A civil marriage which is concluded without the required minis-
terial consent is void, but section 26(2) empowers the Minister to ratify the marriage, thereby
validating it.
The rule that a void marriage has none of the consequences of a valid civil marriage is also
subject to the common-law exception relating to a putative civil marriage. In the case of a
putative marriage, some of the consequences of a valid civil marriage attach to the marriage
even though it is void. The putative civil marriage is discussed below in this chapter.
Finally, it should be noted that the bona fide party to a void civil marriage may institute a
delictual action for satisfaction against the other party to the void civil marriage.11

4.2 Voidable civil marriages

4.2.1 The definition of a voidable marriage
A voidable marriage is a marriage in which grounds are present, either before or at the time
of the wedding, on the basis of which the court can be requested to set the marriage aside.

4.2.2 The grounds for setting aside a voidable civil marriage

A civil marriage is voidable if one or more of the following circumstances are present:
(a) Minority
In terms of section 24A(1) of the Marriage Act, the civil marriage of a minor who fails to
obtain the necessary consent from his or her parent(s), legal guardian, or the presiding
officer of the Children’s Court is voidable. This issue is discussed in chapter 3 above.
________________________

8 See also Heaton in Church (ed) LAWSA Marriage par 41; Sinclair assisted by Heaton 397.
9 See also Heaton in Church (ed) LAWSA Marriage par 41; Lee and Honoré par 48(i); Van der Vyver and
Joubert 515; Visser and Potgieter 64.
10 Ex parte Oxton 1948 (1) SA 1011 (C).
11 Snyman v Snyman 1984 (4) SA 262 (W); Arendse v Roode 1989 (1) SA 763 (C); Zulu v Zulu 2008 (4) SA 12 (D).
 Chapter 4: Void, voidable and putative civil marriages 35

(b) Material mistake

A mistake about the identity of the other party or the nature of the juristic act excludes agree-
ment between the parties. The effect of a material mistake on the validity of a marriage is dis-
cussed in chapter 3. There it is submitted that a material mistake should render the marriage
voidable, not void.
(c) Duress
A marriage which was entered into under duress is voidable. This issue is also discussed in
chapter 3.
(d) Undue influence
Although there is no direct authority for the premise that undue influence renders a civil
marriage voidable, it is submitted in chapter 3 that this should be the position.
(e) Stuprum
Extra-marital sexual intercourse with a third party before the marriage (that is, stuprum) nor-
mally does not affect the validity of a civil marriage.12 Even if one of the spouses has a child
with another person before the marriage, the validity of the marriage is not affected.13 It is
only if the wife is pregnant with another man’s child at the time of the wedding, without her
husband being aware of this, that the husband may apply for annulment of the marriage.14
There obviously is a vast difference between one of the parties having a child with another
person before a civil marriage and pregnancy at the time of the marriage, because in the lat-
ter case the presumption pater est quem nuptiae demonstrant (that is, the marriage indicates who
the father is) comes into operation, with the result that the husband can be held liable for
maintenance of another man’s child.15 However, the pater est quem nuptiae demonstrant presump-
tion does not afford an adequate explanation for the voidability of the marriage, for the hus-
band can escape the duty of support towards his wife’s child via the much less drastic avenue
of rebutting the presumption of paternity and obtaining a declaratory order that he is not the
father of the child. It is submitted that the real foundation for the voidability of the marriage
is the wife’s concealment of her stuprum, which constitutes misrepresentation.16
The fact that the husband himself had sexual intercourse with his wife before the marriage
does not affect his right to have the civil marriage annulled, as long as he was unaware at the

________________________

12 Gabergas v Gabergas 1921 EDL 279; Reyneke v Reyneke 1927 OPD 130.
13 Stander v Stander 1929 AD 349, Heaton and Kruger Casebook on Family Law case [9].
14 Smith v Smith 1936 CPD 125.
15 Stander v Stander 1929 AD 349. On the pater est quem nuptiae demonstrant presumption and its rebuttal, see
Heaton Persons 54–65.
16 See also Sinclair assisted by Heaton 395 who limits the voidability to fraud, ie intentional concealment. How-
ever, negligent misrepresentation should also suffice. Other authors submit that the remedy is based, not
on misrepresentation, but on mistake: Lee and Honoré par 55 fn (n); Wille’s Principles 308. See also Joubert
in Clark (ed) Family Law Service par A40 and Van der Vyver and Joubert 496 who argue that contemporary
social values and recognition of the risk of the marriage breaking down if the wife is pregnant with another
man’s child at the time of the wedding are the real reasons why stuprum results in the voidability of the
marriage. See further Thomas 2001 THRHR 423 who argues that stuprum as a ground for annulment is
outdated and unconstitutional because it violates sex equality. He submits that the obvious solution is for
the husband to rebut the presumption of paternity and to divorce his wife if he does not wish to remain mar-
ried to her. It has to be borne in mind, though, that financial consequences, such as post-divorce mainte-
nance and sharing of matrimonial property, result from divorce while they do not accompany annulment.
It seems unfair to impose those consequences on a husband whose wife has concealed her stuprum. It is
submitted that even under our present constitutional dispensation, the wife’s misrepresentation justifies
annulment of the marriage. On the differences between divorce and annulment, see further below under
this heading.
36 South African Family Law

time of the wedding that his wife was pregnant by another man.17 If the husband accepts and
condones his wife’s pregnancy, he loses his remedy.18
If the husband cannot discharge the onus of proving prenuptial stuprum, or if his action
may possibly be defeated by knowledge or acquiescence, he can, instead of suing for annul-
ment, sue for divorce on the ground of the irretrievable breakdown of the civil marriage.19 It
may be easier to prove irretrievable breakdown and to obtain a divorce, but then the financial
consequences of divorce come into play – and they are very different from the consequences
of annulment. Thus, a husband who obtains a divorce rather than an annulment inter alia has
to contend with the possibility of a maintenance award being made against him. As irretriev
able breakdown is a no-fault ground of divorce, our courts are loath to use guilt as a reason to
deny a spouse maintenance to which he or she would otherwise be entitled.20 Thus, in itself, a
wife’s stuprum may be an insufficient reason to deny her post-divorce maintenance. Further-
more, if the husband divorces his wife rather than having the marriage annulled, the spouses
usually have to share at least some of the matrimonial property.21
(f) Impotence
Impotence is the inability to have sexual intercourse. A civil marriage is voidable if one spouse
proves that the other spouse was impotent before the wedding and remains impotent, and
that the plaintiff was unaware of the impotence at the time of the wedding.22 The plaintiff can-
not succeed if he or she knew of the impotence or condoned it,23 or if the impotence is tem-
porary or probably curable.24
The impotent spouse may apply for the annulment of the civil marriage on the basis of his
or her own impotence if he or she was unaware of the impotence at the time of entering into
the marriage.25
(g) Sterility
Sterility must be distinguished from impotence. Sterility refers to infertility (that is, being able
to have sexual intercourse but not being able to procreate).
In Venter v Venter 26 it was held that if one of the parties at the time of the civil marriage
fraudulently concealed that he or she was sterile, the other party may have the marriage
annulled. In this particular case, the wife knew that she was sterile as a result an operation she
had undergone, but concealed this fact from her husband. The court rejected her husband’s
action to have the marriage set aside because he did not allege that his wife had fraudulently
concealed her sterility. In other words, the court held that the action rests not on the mere
presence of sterility, but on the fraudulent concealment thereof. In Van Niekerk v Van
Niekerk,27 in contrast, it was held that the mere fact of sterility renders the civil marriage void
able, regardless of whether or not it was fraudulently concealed. This rule at least applies
28
when the procreation of children was an express or implicit aim of the marriage.

________________________

17 Reyneke v Reyneke 1927 CPD 130; Smith v Smith 1936 CPD 125.
18 Kilian v Kilian 1908 EDC 377.
19 Despite the fact that her pregnancy was the cause of the breakdown of the marriage, the wife can also institute
an action for divorce on the ground of irretrievable breakdown. See ch 11 below on irretrievable breakdown.
20 See ch 13 below on post-divorce maintenance for a spouse.
21 See ch 12 below on the patrimonial consequences of divorce.
22 Wells v Dean-Willcocks 1924 CPD 89; Joshua v Joshua 1961 (1) SA 455 (GW); Smith v Smith 1961 (3) SA 359
(SR); B v B 1964 (1) SA 717 (T); D v D 1964 (3) SA 598 (E).
23 Wells v Dean-Willcocks 1924 CPD 89; Smith v Smith 1961 (3) SA 359 (SR).
24 See also Barratt (ed) Persons and the Family 251; Heaton in Church (ed) LAWSA Marriage par 49; Sinclair
assisted by Heaton 390; Skelton and Carnelley (eds) Family Law 47; Van der Vyver and Joubert 494; Visser
and Potgieter 56; Wille’s Principles 308.
25 W v W 1959 (4) SA 183 (C), Heaton and Kruger Casebook on Family Law case [10].
26 1949 (4) SA 123 (W), Heaton and Kruger Casebook on Family Law case [11].
27 1959 (4) SA 658 (GW), Heaton and Kruger Casebook on Family Law case [12].
28 Van Niekerk v Van Niekerk 1959 (4) SA 658 (GW).
 Chapter 4: Void, voidable and putative civil marriages 37

The approach in Venter is preferred to that in Van Niekerk:29 it is not the mere fact of sterility,
but the fraudulent concealment thereof which should found the action.30 That this is the
correct approach is supported by the Constitutional Court’s decision in National Coalition for
Gay and Lesbian Equality v Minister of Home Affairs 31 in which it was held that “[f]rom a legal
and constitutional point of view procreative potential is not a defining characteristic of conju-
gal relationships” and that insisting on procreative potential
would be deeply demeaning to couples (whether married or not) who, for whatever reason are
incapable of procreating when they commence such relationship or become so at any time there-
after. It is likewise demeaning to couples who commence such a relationship at an age when
they no longer have the desire for sexual relations . . . [and to] a couple who voluntarily decide
not to have children or sexual relations with one another; this being a decision entirely within
their protected sphere of freedom and privacy.

4.2.3 The consequences of a voidable civil marriage

A voidable civil marriage remains in force and has all the normal legal consequences of a
valid civil marriage until it is set aside by a court order.32 If a voidable marriage is not set aside,
it remains in force. Therefore the court order setting the marriage aside is essential, and not
merely declaratory.
Because the parties to a voidable marriage are indeed legally the parties to a civil marriage,
the marriage affects their status during its subsistence. For example, the parties have equal
capacity to administer the joint estate if they are married in community of property, and chil-
dren born or conceived during the subsistence of the marriage are born of married parents.

________________________

29 Although our common-law writers did not distinguish clearly between impotence and sterility, Venter accords
with the position at common law: Van der Walt 1960 THRHR 220; Scholtens 1961 SALJ 159. Lee and
Honoré par 54 fn 2 submit that Van Niekerk should be rejected on policy grounds and because it is not
based on authority. See also Heaton in Church (ed) LAWSA Marriage par 50; Joubert in Clark (ed) Family
Law Service par A39. Forere and Lotz 2012 Journal for Juridical Science state that some authors (notably Hea-
ton, and Skelton and Carnelley) have “overlooked the details of the decision in Van Niekerk” (99) and have
failed to notice that “[f]ar from being antagonistic, the two decisions [Van Niekerk and Venter] are similar to
the extent that they agree that fraudulent concealment of premarital sterility is a ground for setting aside
the marriage”: 100. However, Forere and Lotz seem to have conflated the two grounds on which the deci-
sion in Van Niekerk was based. The primary ratio in Van Niekerk relates to sterility per se. Wessels J (with whom
De Vos Hugo J agreed) held that Roman-Dutch law did not dinstinguish between impotence (impotentia
coeundi) and sterility (impotentia procreandi): 671. He concluded that in Roman-Dutch law impotence (in the
sense of sterility and the narrower concept of impotence as we know it today) “was a ground for setting
aside a marriage if the defect existed at the time of the marriage, and ... this is still our law today. Notwith-
standing the references in some of the older authorities to fraud, it appears from the cases cited above in which
marriages were set aside on the ground of impotence that fraud is not an essential element. There seems to be no reason based on
public policy why this rule should not be recognised by our Courts at the present time”: 671; emphasis added. De Vos
Hugo J supported this view: 674. In this primary part of the judgment fraud was found to be irrelevant.
Consequently, the decision in Van Niekerk is indeed “antagonistic” to the decision in Venter – fraud is central
to the decision in Venter while in Van Niekerk fraud is relevant only in so far as it is considered as a second,
alternative ground for claiming nullity. De Vos Hugo J makes this clear by stating that “[t]he second
ground on which applicant seeks leave to claim annulment is fraud, that is, fraud consisting in concealment
by the defective [ie sterile] spouse of his or her inability from the able spouse”: 675. The statements in Van
Niekerk about fraud are therefore secondary to the ratio concerning sterility per se, and were added as a pre-
caution in the event that the court’s finding on the first ground (sterility per se) were wrong: see 674, where
De Vos Hugo J indicates that his statements about fraud apply if he is wrong in his conclusion about impo-
tentia coeundi and impotentia procreandi. Therefore the decisions are by no means “similar as far as fraud is
concerned” as Forere and Lotz contend: 99.
30 However, there are valid objections to accepting fraudulent concealment of sterility as a ground for the annul-
ment of a marriage. Hunt 1963 SALJ 109 puts it succinctly: “Why should fraud turn the scales? It is true that
this concealment seems particularly dishonest, but is it any more dishonest or shocking than fraudulent
concealment of cancer, insanity or previous prostitution?” See also Lee and Honoré par 54 fn 2.
31 2000 (1) BCLR 39 (CC), 2000 (2) SA 1 (CC) par 51.
32 See also Barratt (ed) Persons and the Family 249; Heaton in Church (ed) LAWSA Marriage par 42; Joubert in
Clark (ed) Family Law Service par A52; Lee and Honoré par 48(iii); Sinclair assisted by Heaton 401; Skelton
and Carnelley (eds) Family Law 52; Van der Vyver and Joubert 517; Visser and Potgieter 67.
38 South African Family Law

However, if the marriage is set aside, the effect of the decree of annulment is retroactive. This
means that all the consequences of the marriage are extinguished as from the date on which
the marriage was solemnised.33 The status of the parties changes and they are in the same
position as if the marriage never took place. However, the interests of third parties are pro-
tected because the validity of transactions with third parties that were concluded prior to the
annulment is not affected by the decree. The interests of children of the marriage are also
protected, for, in terms of section 39 of the Children’s Act 38 of 2005, children who are con-
ceived or born of a voidable marriage which is annulled are treated like children whose
parents’ valid marriage is terminated by divorce.
It is important to distinguish the annulment of a voidable marriage from the granting of a
divorce. As already indicated, a marriage is voidable on the ground of circumstances which
were present before or at the time of the wedding. A divorce, in contrast, is usually granted
on the ground of circumstances that arose during the marriage. As the Divorce Act 70 of 1979
does not apply to the annulment of a voidable marriage (except in so far as children of the
marriage are concerned), the court cannot make an order for maintenance of one of the
parties or for forfeiture of patrimonial benefits or redistribution of assets when it sets a void
able marriage aside.34

4.3 Putative marriages

4.3.1 The definition of a putative marriage35
A putative marriage exists when one of the parties (or both of them) enters into a civil marriage
while being unaware that there is a defect which renders the marriage void. At the time of
entering into the marriage, the particular party therefore believes in good faith that he or she
is entering into a valid civil marriage. For example, a couple enters into a civil marriage with-
out being aware that they are brother and sister and consequently related within the prohib-
ited degrees of blood relationship.

4.3.2 The requirements for a putative marriage

By definition, the first requirement for the existence of a putative marriage is that one of the
parties or both of them must be unaware of the defect which renders their civil marriage void.
At common law, it was further required that all the formalities for the solemnisation of a civil
marriage had to have been complied with. It is not clear whether the requirement of due
solemnisation still forms part of our law. In Bam v Bhabha 36 the Appellate Division (now the
Supreme Court of Appeal) discussed, but did not decide, the matter. Some of our reported
cases require due solemnisation,37 while others hold that defects in form do not preclude a
marriage from being putative.38 It is submitted that the latter view should prevail.39

________________________

33 Barratt (ed) Persons and the Family 250; Lee and Honoré par 48(iii); Sinclair assisted by Heaton 402; Skelton
and Carnelley (eds) Family Law 53; Van der Vyver and Joubert 518; Visser and Potgieter 67; Wille’s Principles
308. But see Joubert in Clark (ed) Family Law Service par A52 who states that it is not entirely clear whether
the annulment has retroactive effect, but indicates that the weight of opinion favours retroactivity.
34 On the consequences of divorce, see chs 12–15 below.
35 It is doubted whether a customary marriage can be a putative marriage: see ch 17 below.
36 1947 (4) SA 798 (A).
37 See eg Ngubane v Ngubane 1983 (2) SA 770 (T), Heaton and Kruger Casebook on Family Law case [16];
Solomons v Abrams 1991 (4) SA 437 (W), Heaton and Kruger Casebook on Family Law case [14].
38 See eg Ramayee v Vandiyar 1977 (3) SA 77 (D); Moola v Aulsebrook 1983 (1) SA 687 (N), Heaton and Kruger
Casebook on Family Law case [13].
39 See also Heaton in Church (ed) LAWSA Marriage par 43; Lee and Honoré par 49; Sinclair assisted by Heaton
406; Van der Vyver and Joubert 520; Visser and Potgieter 69; Wille’s Principles 310; Labuschagne 1989 TSAR
377–378.
 Chapter 4: Void, voidable and putative civil marriages 39

4.3.3 The consequences of a putative marriage

(a) General
Although a putative marriage is void ab initio, it has some of the legal consequences of a valid
civil marriage for as long as at least one of the parties is bona fide. In other words, for as long
as one of the parties is, on reasonable grounds, unaware of the defect which renders the
marriage void, the marriage has some of the legal consequences of a valid civil marriage. As
soon as both parties become aware of the defect, the relationship automatically ceases to be a
putative marriage.
The court cannot declare a putative marriage valid, because the marriage is void. The court
simply declares that the relationship was a putative marriage with the result that certain con-
sequences can be attached to it from the date of the wedding until the date on which both
parties became aware of the invalidity of the marriage.
(b) Children born of a putative marriage
According to our common-law writers, children who are born of a putative marriage are born
of married parents.40 In Bam v Bhabha 41 the Appellate Division left open the question of
whether this is an automatic consequence of the marriage of the children’s parents having
been putative or whether it is the court order that turns the children into children born of
married parents. Current practice is that when the court is approached to declare a marriage
to have been putative an application is simultaneously made for a declaration that the chil-
dren were born of married parents, the assumption being that the order is merely declar
atory.42 As the court simply confirms that the children were born of married parents, it means
that both parents have full parental responsibilities and rights in respect of the children.
Even if a court were to find that the order is not merely declaratory and that children born
of a putative marriage are in truth not born of married parents, this finding is likely to be of
little practical consequence. As the children’s parents would, most probably, have been living
together as if married to each other at the time of the children’s birth, the parents would
qualify as partners in a life partnership. Furthermore, the “husband” would probably have
been identified as the child’s father and he is likely to have contributed to the children’s
upbringing and maintenance for a reasonable period. Therefore, both parents would auto-
43
matically have acquired full parental responsibilities and rights in respect of the children.
Since a couple whose marriage has been declared putative will usually no longer be living
together at the time of the declaration, the High Court which declares the marriage to be
putative may, as upper guardian of all minors, make any order as to parental responsibilities
and rights that is in the children’s best interests.44
(c) The patrimonial consequences of a putative marriage
If both parties were bona fide at the time of entering into the putative marriage and the mar-
riage was concluded without an antenuptial contract, the parties are treated as having estab-
lished a joint estate by virtue of having been married in community of property or, more
correctly, by virtue of having concluded a universal partnership (societas universorum bonorum

________________________

40 Brouwer 2.5.32; Van der Keessel Praelectiones 1.5.2.

41 1947 (4) SA 798 (A).
42 Prinsloo v Prinsloo 1958 (3) SA 759 (T); M v M 1962 (2) SA 114 (GW); Vather v Seedat 1974 (3) SA 389 (N);
Ngubane v Ngubane 1983 (2) SA 770 (T); see also W v S 1988 (1) SA 475 (N) 484; Barratt (ed) Persons and the
Family 252; Heaton in Church (ed) LAWSA Marriage par 44; Joubert in Clark (ed) Family Law Service
par A65; Skelton and Carnelley (eds) Family Law 55; Van der Vyver and Joubert 520; Visser and Potgieter
69; Wille’s Principles 311. West and Bekker 2012 Obiter 355 imply that obtaining the declaratory order is in-
dispensable.
43 Ss 19(1), 21(1), 21(4) of the Children’s Act; FS v JJ 2011 (3) SA 126 (SCA). See further ch 23 below.
44 Engar and Engar v Desai 1966 (1) SA 621 (T); Potgieter v Bellingan 1940 EDL 264. On parental responsibilities
and rights and the court’s powers as upper guardian, see ch 23 below.
40 South African Family Law

or societas omnium bonorum).45 If only one party was bona fide, the marriage is treated as having
been in community of property (or having been a universal partnership) if this is to the
advantage of the bona fide party.46 However, in terms of the decision in Zulu v Zulu,47 these
rules do not apply if the putative marriage was concluded while either of the parties was a
48
spouse in an existing, valid civil marriage in community of property. The court held that, in
such event, the pre-existence of the valid civil marriage in community of property renders the
creation of a joint estate between the parties to the putative marriage impossible, because all
the assets of the party who is the spouse in the valid civil marriage fall into the joint estate
which exists between spouses in the pre-existing valid civil marriage.
If the parties to the putative marriage entered into an antenuptial contract in which com-
munity of property was excluded, the marriage is treated as having been out of community of
property if this is in the interests of the bona fide party or if both parties were bona fide. The
bona fide party may also enforce any benefit due to him or her in terms of the antenuptial con-
tract, but the mala fide party must return all benefits he or she received in terms of the ante-
nuptial contract.49

________________________

45 Strictly, no matrimonial property system can operate in the marriage because the parties were never legally
married. See also Heaton in Church (ed) LAWSA Marriage par 44; Van der Vyver and Joubert 521; Visser
and Potgieter 70; Wille’s Principles 311. In Zulu v Zulu 2008 (4) SA 12 (D) the applicant seemed to have re-
garded universal partnership to be an alternative to her claim regarding community of property. On uni-
versal partnerships, see further chs 8 and 20 below.
46 See also Barratt (ed) Persons and the Family 252; Heaton in Church (ed) LAWSA Marriage par 44; Skelton and
Carnelley (eds) Family Law 55; Van der Vyver and Joubert 521; Visser and Potgieter 70; Wille’s Principles 311;
Smith 2010 International Journal of Law, Policy and the Family 270, 279.
47 2008 (4) SA 12 (D), Heaton and Kruger Casebook on Family Law case [15].
48 For a suggestion on how the common law could be developed to come to the aid of the bona fide spouse
without ignoring the fact that the pre-existing, valid civil marriage resulted in a joint estate, see Smith 2010
International Journal of Law, Policy and the Family 267. See further Smith 2011 SALJ 567–570.
49 See also Heaton in Church (ed) LAWSA Marriage par 44; Skelton and Carnelley (eds) Family Law 55; Van der
Vyver and Joubert 521; Visser and Potgieter 70; Wille’s Principles 311; Smith 2010 International Journal of Law,
Policy and the Family 270.
 5
THE INVARIABLE CONSEQUENCES OF
A CIVIL MARRIAGE

5.1 Introduction
A civil marriage has far-reaching consequences in respect of the spouses and their property.
Some of these consequences come into being ex lege (that is, automatically by operation of
law) and cannot be excluded by the spouses. They are generally referred to as the invariable
consequences of a civil marriage. Other consequences can be regulated by the spouses (usually
beforehand in an antenuptial contract). They are known as the variable consequences of a
civil marriage. The variable consequences relate mainly to the spouses’ estates; in other
words, they relate to the proprietary consequences of the marriage. The invariable conse-
quences, by contrast, relate mainly to the personal consequences of the marriage. This chap-
ter deals with the invariable consequences of a civil marriage.

5.2 The status of the spouses

1
The parties’ status changes when they enter into a civil marriage. For example:
(1) Neither spouse may enter into another civil or a customary marriage or civil union with
anyone else while the civil marriage subsists.2
(2) New impediments to a subsequent civil marriage arise as a result of the relationship by
affinity that is created by the marriage.3
(3) A right of intestate succession is created between the spouses.4
(4) As a result of the civil marriage, any children the couple had together before entering
into the marriage become children born of married parents.5
(5) The spouses have full parental responsibilities and rights in respect of the children born
of the marriage.6
(6) The spouses’ capacity to act is restricted if they marry in community of property.7
(7) A spouse who is a minor when he or she marries attains majority.8

________________________

1 Entering into marriage does not have an effect on citizenship. Therefore no-one acquires or loses South
African citizenship simply by virtue of marriage: s 14 of the South African Citizenship Act 88 of 1995; see
also the definitions of “marriage”, “husband” and “wife” in s 1(1) of this Act.
2 S 10(4) of the Recognition of Customary Marriages Act 120 of 1998; s 8(3) of the Civil Union Act 17 of
2006.
3 See ch 3 above.
4 S 1(1)(a) and (c) of the Intestate Succession Act 81 of 1987.
5 S 38 of the Children’s Act 38 of 2005.
6 Ss 19 and 20 of the Children’s Act.
7 Ss 15(1)–(5) and 17(1) of the Matrimonial Property Act 88 of 1984.
8 Voet 4.4.6; Cohen v Sytner (1897) 14 SC 13.

41
42 South African Family Law

5.3 Consortium omnis vitae

5.3.1 The content and protection of consortium omnis vitae
A civil marriage creates consortium omnis vitae between the spouses. The concept of “consortium
omnis vitae” does not lend itself to a precise definition as virtually all the objects of all the
rights emanating from marriage can be grouped under it and it includes material and imma-
terial things.9 In Wiese v Moolman 10 consortium was accurately described as a broad, indefinable
concept that nevertheless has a well-understood meaning. In Grobbelaar v Havenga 11 the court
stated that consortium omnis vitae is “an abstraction comprising the totality of a number of
rights, duties and advantages accruing to the spouses of a marriage”. This totality comprises
inter alia “[c]ompanionship, love, affection, comfort, mutual services, sexual intercourse”.12 In
Peter v Minister of Law and Order 13 it was said that “consortium” is used “as an umbrella word for
all the legal rights of one spouse to the company, affection, services and support of the other”.14
One spouse cannot enforce companionship, affection, and so on by means of a court
order, or obtain an interdict to prevent the other spouse from infringing the consortium by, for
example, committing adultery or leaving the matrimonial home.15 Nor can the wronged
spouse sue the offending spouse in delict for infringements of the consortium.16 If the violation
has resulted in the marriage relationship no longer being normal and there is no reasonable
prospect of the restoration of a normal marriage relationship, divorce is normally the only
remedy which can be invoked.17 In the case of domestic violence, the victim can obtain a
protection order against the perpetrator and/or invoke the ordinary delictual and criminal
remedies which operate as between third parties.18 As is explained below in this chapter, the
duty of support can also be enforced as between the spouses.
In the past, a third party who infringed the spouses’ consortium by committing adultery with
one of them could be sued for damages resulting from contumelia (that is, insult) and loss of
consortium.19 The action on the ground of adultery was abolished by the Supreme Court of
20 21
Appeal in RH v DE. In DE v RH the Constitutional Court dismissed an appeal against the
decision of the Supreme Court of Appeal. Thus, it is clear that the action can no longer be
instituted. However, as the law stands, the action on the ground of enticement can still be
instituted against a third party who intentionally persuades one of the spouses to leave the
other.22 And, if a third party provides accommodation to a spouse with the deliberate
________________________

9 See eg King v King 1947 (2) SA 517 (D); Bruwer v Joubert 1966 (3) SA 334 (A); Peter v Minister of Law and
Order 1990 (4) SA 6 (E).
10 2009 (3) SA 122 (T).
11 1964 (3) SA 522 (N) 525.
12 525E, where the court quotes from Best v Samuel Fox Co Ltd 1957 (2) KB 639 665.
13 1990 (4) SA 6 (E) 9F.
14 See also Wiese v Moolman 2009 (3) SA 122 (T) 127B–C, where the court stated that consortium includes “die
samesyn, die kameraadskap, die wedersydse vertroue, liefde en ondersteuning wat vir die gennote uit die
huwelik voortspruit” (ie, the company, the companionship, the reciprocal trust, love and support that re-
sult from the marriage for the partners).
15 Wassenaar v Jameson 1969 (2) SA 349 (W); Amra v Amra 1971 (4) SA 409 (D); Osman v Osman 1983 (2) SA
706 (D).
16 Ex parte AB 1910 TPD 1332; Currie v Currie 1942 NPD 362; Asinovsky v Asinovsky 1943 CPD 131; Lamprecht v
Lamprecht 1948 (4) SA 416 (N); but see Olivier Huldigingsbundel, Daniel Pont 272; Sonnekus Die Privaatreg-
telike Beskerming van die Huwelik 1 fn 1, 311 et seq ; MAD 1943 SALJ 222.
17 On irretrievable breakdown, see s 4(1) of the Divorce Act 70 of 1979 and ch 11 below.
18 See ch 21 below.
19 See eg Bester v Calitz 1982 (3) SA 864 (O); Wiese v Moolman 2009 (3) SA 122 (T).
20 2014 (6) SA 436 (SCA).
21 2015 (9) BCLR 1003 (CC).
22 Woodiwiss v Woodiwiss 1958 (3) SA 609 (D). The plaintiff must prove that the defendant enticed, persuaded
and incited the plaintiff’s spouse to leave him or her, and that this has caused the alienation of affection for
the plaintiff: Van den Berg v Jooste 1960 (3) SA 71 (W). See also Grobbelaar v Havenga 1964 (3) SA 522 (N);
Wassenaar v Jameson 1969 (2) SA 349 (W).
 Chapter 5: The invariable consequences of a civil marriage 43

intention of thereby severing the marriage relationship and depriving one spouse of the
other’s consortium, the wronged spouse can institute the action on the ground of harbouring
against the third party. These actions may also fall by the wayside in the future.
5.3.2 The relationship between consortium omnis vitae, the right to family life
and the right to dignity
Although the Constitution does not expressly protect the right to family life,23 the Constitu-
tional Court ruled in Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thom-
as v Minister of Home Affairs 24 that the right to dignity encompasses and protects the rights of
individuals to enter into and sustain permanent intimate relationships. In other words, the
right to family life is protected by the constitutional right to dignity.25 From O’Regan J’s
judgment in Dawood, it is clear that the right to family life includes the spouses’ right to enjoy
consortium.26 She stated that
[e]ntering into and sustaining a marriage is a matter of intense private significance to the par-
ties to that marriage for they make a promise to one another to establish and maintain an inti-
mate relationship for the rest of their lives which they acknowledge obliges them to support one
another, to live together and to be faithful to one another.27
In other words, the spouses undertake to have consortium omnis vitae. O’Regan J further refer-
red to the fact that “[i]n terms of common law, marriage creates a physical, moral and spirit-
ual community of life” which “includes reciprocal obligations of cohabitation, fidelity and
sexual intercourse” and the “reciprocal and enforceable duty of financial support between the
spouses”, that is to say, marriage results in a consortium omnis vitae.28 She indicated that legisla-
tion prohibiting the formation of marriage constitutes an infringement of the right to dignity,
as does legislation which significantly impairs the ability of spouses to honour their obliga-
tions to one another. She again referred to consortium by pointing out that cohabitation is a
central aspect of marriage, and stated that legislation which significantly impairs the ability of
spouses to live together constitutes a limitation of the right to dignity. She held that section
________________________

23 Prior to the coming into operation of the Constitution, the Constitutional Court considered, and rejected,
the objection that the Constitution should have included an express clause protecting the right to family
life: Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South
Africa, 1996 1996 (10) BCLR 1253 (CC), 1996 (4) SA 744 (CC).
24 2000 (8) BCLR 837 (CC), 2000 (3) SA 936 (CC) par 36; see also Harksen v Lane 1997 (11) BCLR 1489 (CC)
par 92, 1998 (1) SA 300 (CC) par 93.
25 S 10 of the Constitution protects the right to dignity. Even before the coming into operation of the Consti-
tution, the Constitutional Court indicated that the right to dignity “would clearly prohibit any arbitrary
State interference with the right to marry or to establish and raise a family”: Ex parte Chairperson of the Consti-
tutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (10) BCLR 1253
(CC), 1996 (4) SA 744 (CC) par 100.
26 The right to family life extends beyond the relationship between persons who are validly married: see eg
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (1) BCLR 39 (CC), 2000 (2) SA
1 (CC) in which the phrase was used in the context of same-sex relationships. Furthermore, it clearly covers
the relationship between parents and their children. On the right to family life, see further Ex parte Chair-
person of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996
(10) BCLR 1253 (CC), 1996 (4) SA 744 (CC); Dawood v Minister of Home Affairs; Shalabi v Minister of Home
Affairs; Thomas v Minister of Home Affairs 2000 (8) BCLR 837 (CC), 2000 (3) SA 936 (CC); Du Toit v Minister for
Welfare and Population Development 2002 (10) BCLR 1006 (CC), 2003 (2) SA 198 (CC); Hattingh v Juta 2013 (5)
BCLR 509 (CC), 2013 (3) SA 275 (CC); Cockrell Bill of Rights Compendium par 3E12 fn 7; Heaton Bill of Rights
Compendium par 3C19.2; Joubert in Clark (ed) Family Law Service par A1; Sinclair assisted by Heaton 71–72
fn 176; Van der Linde Grondwetlike Erkenning van Regte ten aansien van die Gesin en Gesinslewe passim; Visser
and Potgieter 12–14; Van Wyk 1990 Stell LR 193–197; Robinson 1995 Obiter 106–107; Visser 1995 THRHR
703–704, 1996 De Jure 351; Jazbhay Oct 2000 De Rebus 56–57; Van der Linde 2000 De Jure 1, 377; Bonthuys
2002 SALJ 751–752; Van der Linde 2002 Obiter 338; Nonyana Aug 2003 LexisNexis Butterworths Property Law
Digest 3; Krüger 2003 THRHR 285; Van der Linde 2003 De Jure 200, 2003 Obiter 163, 2003 SA Public Law 103;
Bonthuys and Sibanda 2003 SALJ 793 et seq; Van der Linde 2008 Obiter 502.
27 Par 30.
28 Par 33; see also National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (1) BCLR 39
(CC), 2000 (2) SA 1 (CC).
44 South African Family Law

25(9)(b) read with section 26(3) and (6) of the Aliens Control Act 96 of 1991 had the effect
of limiting the right to cohabit in certain marriages between a South African permanent res-
ident and his or her foreign spouse by requiring the foreign spouse to apply for an immigra-
tion permit from outside South Africa. She concluded that this limitation constituted an un-
justifiable infringement of the right to dignity of the foreign spouse. She accordingly declared
the provisions unconstitutional and required the legislator to correct the unconstitutionality.
In Booysen v Minister of Home Affairs 29 the Constitutional Court applied its decision in Dawood
to other sections of the Aliens Control Act which required an application for a work permit to
be made from outside South Africa, prohibited the applicant from entering South Africa until
the work permit had been issued, and provided that a work permit would be issued only if the
applicant did not, or was not likely to, pursue an occupation in which there were already
enough people in South Africa to meet the needs of the country’s inhabitants. Sachs J con-
cluded that the relevant sections unjustifiably limited the right to dignity of South Africans
and their foreign spouses, and declared them unconstitutional. The Act and the regulations
under the Act have since been amended.

5.4 Spousal maintenance

5.4.1 The reciprocal duty of support between spouses
(a) General
30
From its beginning until its termination, a civil marriage imposes a reciprocal common-law
duty of support on the spouses, provided that the spouse who claims maintenance needs it
and the spouse from whom it is claimed is able to provide it.31 Maintenance includes the
provision of accommodation, clothing, food, medical services and other necessaries.32 The
scope of the duty of support is determined inter alia by the social status of the parties, their
means or income, and the cost of living.33
In respect of a spouse’s ability to provide maintenance, Reyneke v Reyneke 34 should be noted.
In this case, the husband deliberately impoverished himself and the joint estate by spending
part of a lump sum disability payment and giving away the balance to frustrate his wife’s claim
for maintenance. His wife contended that because of his fraudulent conduct he should be
deemed still to have the means to maintain her and should be ordered to make regular main-
tenance payments to her even though he could not afford them. She argued that the actio
Pauliana utilis and the wife’s right of recourse against her husband for maladministration of
the joint estate should be extended and/or combined by deeming her husband to have
recovered the disability payment, or by deeming him not to have disposed of it.35 The court
rejected this argument. It held that the right of recourse could not arise until the joint estate
was dissolved, because whatever was recovered could only come out of the joint estate and
would simply fall back into it.36 The wife’s claim failed on another ground too. The court
pointed out that it can only make a maintenance order if it is satisfied that the person from
whom maintenance is claimed is able to pay it, and on the facts of this case, the husband
lacked the ability to pay. The court held that it could not extend a remedy in order to afford
________________________

29 2001 (4) SA 485 (CC).

30 On the termination of the common-law duty of support upon the dissolution of the marriage, see further
ch 13 below.
31 See eg Oberholzer v Oberholzer 1947 (3) SA 294 (O); Reyneke v Reyneke 1990 (3) SA 927 (E). In Booysen v Minister
of Home Affairs 2001 (4) SA 485 (CC) the Constitutional Court held that legislation which prevents spouses
from fulfilling their duty of support violates the right to dignity of both spouses. On this decision, see the
discussion under the previous heading.
32 See eg Ex parte Hugo 1960 (1) SA 773 (T).
33 See eg Oberholzer v Oberholzer 1947 (3) SA 294 (O); Young v Coleman 1956 (4) SA 213 (D).
34 1990 (3) SA 927 (E).
35 See ch 6 below on the actio Pauliana utilis and the right of recourse.
36 See ch 6 below on the nature of community of property.
 Chapter 5: The invariable consequences of a civil marriage 45

an otherwise remediless person relief by overlooking one of the fundamental principles

applicable to that remedy.
The duty of support applies not only to the husband, but to both spouses in proportion to
their means. The duty of support can be enforced as between the spouses by means of an
action which can be instituted in either the High Court or the Maintenance Court.37
(b) Liability as against third parties
A third party who supplies a spouse with goods or services that are needed for the spouse’s
maintenance may hold the spouse who incurred the particular debt liable in contract. In a
marriage in community of property, the debt will be settled from the joint estate. If there are
insufficient assets in the joint estate to cover the debt but one of the spouses or both of them
have assets which do not form part of the joint estate, the debt can be recovered from those
assets on a pro rata basis.38
The question arises whether a third party who provides items that are required for one
spouse’s maintenance can hold the other spouse liable in the absence of a contract with the
latter spouse. Two possible grounds of liability have been suggested, namely negotiorum gestio
and unjustified enrichment. Liability on the ground of unjustified enrichment arises if one
person obtains a patrimonial advantage (that is, is enriched) at the expense of another in the
absence of a recognised legal ground justifying the enrichment.39 Negotiorum gestio refers to a
situation in which one person promotes the interests of another without the latter’s consent.
Some authors argue that a third party who supplies essential items to a deserted and needy
spouse fulfils the other spouse’s maintenance obligation on his or her behalf and consequently
acts as the spouse’s negotiorum gestor.40 However, this is not necessarily true. One of the require-
ments for negotiorum gestio is that the gestor must have the intention of promoting the dominus’
interests. (In this case, the dominus is the spouse who is obliged to maintain the other spouse.)
Consequently, the third party can rely on negotiorum gestio only if he or she intended to fulfil
the spouse’s maintenance obligations on his or her behalf.41 Viewed from the position of the
average dealer, this would seldom, if ever, be the case. Therefore, the liability of the spouse
who has a duty of support would usually have to be based on unjustified enrichment.
(c) Termination of the duty of support
As indicated above, the duty of support terminates upon dissolution of the marriage. Thus, in
principle, the duty comes to an end upon the death of either of the spouses. The surviving
spouse may, however, have a claim for maintenance against the deceased spouse’s estate in
terms of the Maintenance of Surviving Spouses Act 27 of 1990.42 Divorce also terminates the
reciprocal duty of support, but the court that grants the decree of divorce may make a main
tenance order in favour of one of the spouses in terms of the Divorce Act 70 of 1979.43
If the spouses are still married but no longer live together, matrimonial guilt determines
whether the duty of support continues. For example, if the husband has to support his wife
and the separation is due to his fault (for example, because he deserted her or through his
misconduct caused her to leave him), his duty to support her continues.44 The same applies if

________________________

37 See the discussion of the Maintenance Act 99 of 1998 below in this chapter.
38 Oberholzer v Oberholzer 1947 (3) SA 294 (O).
39 See eg Pretorius v Van Zyl 1927 OPD 226; Nortjé v Pool 1966 (3) SA 96 (A); McCarthy Retail Ltd v Shortdistance
Carriers CC [2001] 3 All SA 236 (SCA), 2001 (3) SA 482 (SCA).
40 Hahlo, 5th edn, 209 fn 126.
41 See also Barratt (ed) Persons and the Family 263; Sinclair in Van Heerden et al (eds) Boberg’s Law of Persons
and the Family 176 fn 53; Sinclair assisted by Heaton 454 fn 150; Skelton and Carnelley (eds) Family Law 64–
65. See further Van der Vyver and Joubert 550.
42 This Act is discussed in ch 10 below.
43 S 7(1) and (2); see further ch 13 below.
44 Excell v Douglas 1924 CPD 472, Heaton and Kruger Casebook on Family Law case [18]; Pickles v Pickles 1947 (3)
SA 175 (W); Oelofse v Grundling 1952 (1) SA 338 (C); Behr v Minister of Health 1961 (1) SA 629 (SR).
46 South African Family Law

the parties agree to live apart.45 However, if the separation is due to the wife’s fault, she loses
her right to maintenance.46 Once one of the spouses institutes matrimonial proceedings
against the other and claims interim maintenance and a contribution to costs,47 matrimonial
guilt loses its relevance, for the courts’ view is that the enactment of no-fault divorce in 197948
has had the result that matrimonial guilt is not the determining factor in respect of interim
maintenance and a contribution to costs.49

5.4.2 Household necessaries

(a) General
(i) The distinction between the duty of support and liability for household necessaries
The duty to contribute to the purchase of household necessaries is so closely linked to the
duty of support that it is discussed under the duty of support for the sake of convenience. It
should be noted, however, that although the duty of support in many instances overlaps the
duty to contribute to household necessaries, these duties differ in some respects.50 For exam-
ple, litigation costs fall within the scope of the duty of support,51 but are not household
necessaries. Conversely, if, for example, a wife who is entirely dependent on her husband for
support buys clothes for him, the clothes are household necessaries but do not fall within the
scope of the husband’s duty to support his wife. Likewise, food and veterinary services for the
family’s pets are household necessaries but do not fall within the duty of support. In respect
of many items, however, the duty of support coincides with the duty to contribute to house-
hold necessaries. For example, if the husband in the above example pays for his wife’s accom-
modation, food and clothing, he is discharging not only his duty of support but also his duty
to provide household necessaries.52
(ii) The modern-day relevance of the rules regarding liability for household necessaries
The relevance of the concept “household necessaries” is to be found in the fact that the type
of liability of the spouses depends on whether or not a debt is incurred for household neces-
saries or for something else. In terms of section 17(5) of the Matrimonial Property Act 88 of
1984, spouses who are married in community of property are jointly and severally liable for
household necessaries irrespective of which spouse buys the household necessaries. By virtue
of section 23 of the Matrimonial Property Act, the same rule applies in marriages out of
community of property. It is therefore of practical importance to establish whether or not a
specific item is a household necessary, because if it is, the purchasing spouse binds himself or
herself and the other spouse if the marriage is out of community of property, or himself or
herself and the joint estate if the marriage is in community of property. If the item is not a
household necessary (or if the spouses no longer share a joint household when the item is
bought), only the spouse who incurs the debt is liable for it unless the circumstances are such
that the third party can rely on negotiorum gestio or unjustified enrichment to found his or her
claim.53

________________________

45 Excell v Douglas 1924 CPD 472; Behr v Minister of Health 1961 (1) SA 629 (SR).
46 Bing and Lauer v Van den Heever 1922 TPD 279; Excell v Douglas 1924 CPD 472; Behr v Minister of Health 1961
(1) SA 629 (SR); Chamani v Chamani 1979 (4) SA 804 (W).
47 Litigation costs form part of the duty of support: see the discussion of the distinction between the duty of
support and the duty to contribute to household necessaries below in this chapter.
48 On the introduction of no-fault divorce, see ch 11 below.
49 On interim maintenance and a contribution to costs, see ch 15 below.
50 Excell v Douglas 1924 CPD 472.
51 See eg Chamani v Chamani 1979 (4) SA 804 (W); Dodo v Dodo 1990 (2) SA 77 (W); Samsudin v Berange 2005
(3) SA 529 (N).
52 See further Sinclair assisted by Heaton 456.
53 In a marriage in community of property, the third party’s claim may also be dependent on whether or not
the consent requirement in s 15 of the Matrimonial Property Act has been complied with. Say, eg, that the
wife purchased a refrigerator on credit and it subsequently transpired that although a refrigerator was a house-
continued
 Chapter 5: The invariable consequences of a civil marriage 47

(b) The requirements for the capacity to incur debts for household necessaries
(i) General
A spouse’s capacity to purchase household necessaries is dependent on the existence of a valid
civil marriage and a joint household, and the commodities indeed being household necessaries.
(ii) The existence of a valid civil marriage
The capacity to purchase household necessaries is one of the invariable consequences of a
civil marriage and only exists if the marriage is valid.
(iii) The existence of a joint household
The capacity to conclude binding contracts for household necessaries is dependent on the
existence of a joint household.54 When no joint household exists, the purchasing spouse may
still bind the other spouse, but then the basis of liability is no longer one spouse’s capacity to
bind the other in contract for household necessaries because one of the requirements for such
liability, namely the existence of a joint household, is absent. In such event, liability depends
on whether or not the non-contracting spouse is obliged to maintain the other spouse, and, as
explained above in this chapter, this in turn depends on matrimonial guilt. In other words, in
this case the basis of liability rests on the duty of support, which is not dependent on the exist-
ence of a joint household.
(iv) The transaction must relate to household necessaries
Household necessaries are the everyday items which are needed for running a household. In
general, items such as food, clothing, medical and dental services, food and veterinary ser-
vices for the family’s pets, and so on are household necessaries.
The concept of “household necessaries” can be limited or extended by the necessity or
otherwise of a particular item. Whether or not a specific item is necessary in a specific house-
hold is determined inter alia by the practices and customs in the area, and the family’s social
status, means, income and past standard of living.55 From this it follows that what might be
household necessaries for one family might be luxuries for another. In Reloomel v Ramsay 56 the
husband was a reasonably well-off doctor. His wife bought dress fabric for a number of silk
dresses on credit. The court found that the dresses were household necessaries.
The courts use two tests or approaches to determine whether a particular item is a house-
hold necessary. The first is the objective approach. In terms of this approach, the court con-
siders all the relevant facts of the case to determine whether the purchasing spouse acted
within the scope of his or her capacity. The court looks at the family’s social background, its
standard of living, and the supply of the specific commodity the family already had at its dis-
posal when the item was bought on credit to determine whether the transaction indeed related
to household necessaries. If, for example, the household already had an adequate supply of
the particular item, the other spouse will not incur liability if another of those items is
bought, because the item will not be considered a household necessary. The objective

________________________

hold necessary for the family, the joint household no longer existed when she bought the item. In terms of
s 17(5) of the Matrimonial Property Act either the wife on her own or the spouses jointly must be held liable
for the purchase price. Since the purchase was not made for the joint household the husband cannot be
held liable alone. If the husband did not consent to the purchase (as required by s 15(2)( f ) of the Act) and
the dealer was bona fide, the debt will be paid from the joint estate and the husband will have a right of re-
course against his wife on the dissolution of the joint estate if the estate suffered a loss as a result of the
transaction: see s 15(9)(a) and (b) of the Matrimonial Property Act and the discussion of these subsections
in ch 6 below. On liability on the ground of negotiorum gestio and unjustified enrichment, see above in this
chapter.
54 Ss 17(5) and 23 of the Matrimonial Property Act.
55 Reloomel v Ramsay 1920 TPD 371; Bing and Lauer v Van den Heever 1922 TPD 279; Smith v Philips 1931 OPD
107; Voortrekkerwinkels (Ko-operatief) Bpk v Pretorius 1951 (1) SA 730 (T).
56 1920 TPD 371, Heaton and Kruger Casebook on Family Law case [19].
48 South African Family Law

approach was applied in, inter alia, Voortrekkerwinkels (Ko-operatief) Bpk v Pretorius.57 In this case,
the court held that the husband would not be liable if he could show that there was already
an adequate supply of the specific commodity in the house.
Sometimes the court adopts the subjective approach. In this event it views the matter, as in
Reloomel v Ramsay,58 from the dealer’s point of view and considers only the facts of which the
dealer was aware or of which he or she could reasonably have been expected to be aware. If
the subjective approach is adopted and a spouse buys a specific article while the household is
already well supplied with that specific commodity, a dealer who is unaware of the existing
supply can still hold the other spouse liable because the court will not take the existing supply
into consideration. The subjective approach is fairer because it affords better protection to
third parties.
(c) Revocation or limitation of a spouse’s capacity to purchase household necessaries
(i) Revocation by means of a court order
In terms of section 16(2) of the Matrimonial Property Act, the court can suspend the capacity
of a spouse who is married in community of property to deal with the joint estate for a def-
inite or an indefinite period.59 If such an order is made, the spouse obviously also loses the
capacity to bind the joint estate for debts in respect of household necessaries.
As the law stands, one spouse can apply to have the other declared a prodigal. If the order
is granted, the spouse is, inter alia, deprived of the capacity to conclude contracts for house-
hold necessaries.60 However, it is doubted whether our courts will in future be willing to de-
clare someone a prodigal and to interdict the person from dealing with his or her own estate
or the joint estate, since such an order probably constitutes an unjustifiable infringement of
the person’s constitutional rights to dignity and privacy.61
(ii) Revocation by the other spouse
Whether one spouse may unilaterally and without a court order revoke the other spouse’s
capacity to purchase household necessaries is not clear. Modern authors accept that one
spouse may not unilaterally revoke the other’s capacity, because the capacity is not based on
agency (that is, a mandate from the other spouse), but comes into being ex lege when a valid
marriage and a joint household come into existence.62 In the case law there is no unanimity.
On a number of occasions, the courts have stated that revocation is possible provided that it is
clearly conveyed to third parties,63 but in other cases the opposite has been held.64
In this context, the question arises as to the effect of notice one spouse gives to third par-
ties that he or she will not be liable for the other spouse’s debts. In this context too, the
objective and subjective approaches play a role. If the objective approach is adopted, the
spouse who notifies the third party remains liable, despite the notice, for items which, objec-
tively judged, are household necessaries. If the subjective approach is adopted, the court
looks at what the third party knew, and here the notice plays a role. In this case the effect of
the notice is that it can reasonably be expected of the third party to make further enquiries
about the spouses’ circumstances, such as the supply of the particular item in the couple’s
________________________

57 1951 (1) SA 730 (T), Heaton and Kruger Casebook on Family Law case [20].
58 1920 TPD 371.
59 On suspension of the spouse’s powers in terms of s 16(2), see further ch 6 below.
60 Traub v Traub 1955 (2) SA 671 (C).
61 The right to dignity is enshrined in s 10 of the Constitution, and the right to privacy in s 14. On prodigality
and the unconstitutionality of the limitations placed on prodigals, see further Heaton Persons ch 10.
62 See eg Christie and Bradfield Contract 238; Sinclair in Van Heerden et al (eds) Boberg’s Law of Persons and the
Family 174 fn 45, 179; Sinclair assisted by Heaton 446, 454–455; Skelton and Carnelley (eds) Family Law 68;
Van der Vyver and Joubert 547; Visser and Potgieter 109.
63 Reloomel v Ramsay 1920 TPD 371; McNaught v Caledonian Hotel 1938 TPD 577; Behr v Minister of Health 1961
(1) SA 629 (SR).
64 Bing and Lauer v Van den Heever 1922 TPD 279; Chenille Industries v Vorster 1953 (2) SA 691 (O).
 Chapter 5: The invariable consequences of a civil marriage 49

household and whether the parties have a joint household, before supplying one of them
with goods. If the third party does not make further enquiries, he or she is deemed to be
familiar with the spouses’ circumstances. In other words, the third party is, for example,
deemed to know the extent of the supply of the particular item in the household. Thus, if the
third party supplies something to a household which already has a sufficient supply of the
particular item, he or she cannot hold the other spouse liable.
(iii) The defence that the purchase was not necessary because one spouse had made sufficient funds
available to the other
Finally, the question arises whether one spouse may limit the other’s capacity to buy house-
hold necessaries on credit by making funds available to him or her with which household
necessaries must be bought. In other words, can a spouse who is sued for debts in respect of
household necessaries raise the defence that he or she is not liable for those debts because he
or she provided the other spouse with sufficient funds so that there was no need to purchase
household necessaries on credit? In Reloomel v Ramsay 65 the court rejected this defence. It
adopted the subjective approach and viewed the facts from the dealer’s point of view. Had the
court adopted the objective approach, the defence would probably have succeeded because
buying household items on credit would not have been deemed reasonably necessary in a
household which had already been provided with sufficient funds.
66
5.4.3 The Maintenance Act 99 of 1998
(a) General
The Maintenance Act 99 of 1998 applies in respect of the legal duty of any person to maintain
any other person “irrespective of the nature of the relationship between those persons giving
rise to that duty”.67 Thus the Act covers not only the ex lege duty of support between spouses in
a valid marriage or civil union and the duty of support between blood relations, but extends
to a contractual duty of support between persons who are not related to each other by blood
or marriage.68 Therefore, life partners who have agreed on a duty of support can invoke the
provisions of the Act to enforce this duty.69
(b) The maintenance complaint and maintenance enquiry70
71
When a complaint is made that a person who is liable to maintain someone else is in default
72
or that good cause exists for substituting or discharging an existing maintenance order, a
________________________

65 1920 TPD 371.

66 For a detailed discussion of the Act, see Van Zyl Handbook of the South African Law of Maintenance 57–114. On
some of the hurdles in the implementation of the Act, see Mamashela 2005 SAJHR 490, 2006 Obiter 590; De
Jong 2014 THRHR 198–201. For empirical studies of the application of the Act and its inadequate en-
forcement mechanisms, see De Jong 2009 SALJ 598 et seq, 2014 THRHR 195. The South African Law Reform
Commission is reviewing the Maintenance Act inter alia with a view to improving enforcement of main
tenance. The Commission published an issue paper for comment in 2014: Issue Paper 28: Review of the
Maintenance Act 99 of 1998.
67 S 2(1).
68 See also Khan v Khan 2005 (2) SA 272 (T).
69 Life partnerships are discussed in ch 20 below.
70 For a step-by-step guide to instituting a maintenance claim in terms of the Act, see Pretorius Jan/Feb 2004
De Rebus 36. On the public mediation services offered in certain divisions of the Maintenance Court, see De
Jong 2009 THRHR 274.
71 It is unclear whether the provisions of the Maintenance Act can be invoked to enforce child maintenance
that is payable from a deceased estate. In NB v Maintenance Officer, Butterworth 2014 (6) SA 116 (ECM) the
court concluded that instead of relying on the Maintenance Act, the provisions of the Administration of
Estates Act 66 of 1965 must be invoked to address an executor’s failure to pay maintenance to a child who
is entitled to maintenance out of his or her parent’s deceased estate. In Du Toit v Thomas [2015] JOL 33337
(WCC) the opposite was held.
72 Whether or not there is good cause for variation is determined in the light of the facts of each case: Roels v
Roels [2003] 2 All SA 441 (C).
50 South African Family Law
73
maintenance officer investigates the complaint and decides whether or not to institute a
maintenance enquiry in the Maintenance Court.74 A maintenance officer is also obliged to
investigate a complaint that good cause exists for the substitution or discharge of a duty to pay
75
maintenance in respect of which no maintenance order has been made. By virtue of this
provision persons such as life partners who agreed to be liable for each other’s maintenance
and divorcing spouses who agreed on post-divorce maintenance without their agreement ever
being made an order of court could make a complaint in terms of the Maintenance Act.
The maintenance officer may undertake his or her own investigation into the complaint
and/or require a maintenance investigator to perform certain tasks forming part of the
investigation.76 The maintenance investigator may, inter alia, be required to locate a person
who is liable to pay maintenance or who can provide relevant information; gather infor-
mation about the identification, whereabouts and financial position of the person who is
liable to pay maintenance, the financial position of the person who is entitled to mainte-
nance, or any other relevant matter; or take statements from anyone who may be able to give
relevant information.77 A maintenance officer of another Maintenance Court may be asked to
obtain relevant information within the area of his or her jurisdiction.78
The maintenance officer can have any person summoned to appear before the Mainte-
nance Court to give evidence or to produce any book, document or statement (such as a
payslip or statement about earnings signed by the person’s employer).79 The maintenance
officer may further request a magistrate to summon anyone who is likely to have relevant
information regarding the identification, whereabouts, employment or financial position of
the person who is liable for maintenance, or the financial position of the person who is
entitled to maintenance to appear before the Maintenance Court for examination by the main-
tenance officer.80 When circumstances permit and a Family Advocate is available, a Main-
tenance Court may instruct a Family Advocate to carry out an investigation in terms of the
Mediation in Certain Divorce Matters Act 24 of 1987 in the maintenance proceedings.81
The Maintenance Court has the power to issue a direction compelling an electronic com-
munications service provider to supply information which can be used to trace a person who
82
may be affected by an order of the court. Such a person includes the maintenance debtor
and/or his or her employer, a maintenance beneficiary, and a person who is contractually
obliged periodically to pay money to the maintenance debtor. This provision is not yet in
operation.
All maintenance enquiries must be concluded as speedily as possible and postponements
must be limited. A court granting a postponement is empowered to make an interim mainte-
nance order pending the finalisation of the matter if it is satisfied that there is prima facie
evidence that one of the parties is legally liable to maintain a person or persons and that the
person(s) may suffer undue hardship as a result of the postponement if an interim mainte-
83
nance order was not made.

________________________

73 Every Public Prosecutor who has the general power to institute and conduct criminal prosecutions in a
particular court is a maintenance officer for that court: s 4(1)(a). Other public servants may also be ap-
pointed as maintenance officers: s 4(2).
74 S 6(1) and (2) of the Maintenance Act. Every Magistrate’s Court is a Maintenance Court: s 3.
75 S 6(1)(c).
76 S 7(1).
77 S 7(2).
78 S 7(1)(c).
79 S 9(1)(a) and (b).
80 S 8(1).
81 S 10(1A) of the Maintenance Act. The Mediation in Certain Divorce Matters Act is discussed in ch 14 below.
82 S 7(3).
83 S 10(6).
 Chapter 5: The invariable consequences of a civil marriage 51

(c) The orders the court may make

If a maintenance order is not already in operation, the Maintenance Court may make an
order against the liable person (that is, the maintenance debtor) for the payment of mainten-
ance to the person who is entitled to maintenance (that is, the maintenance creditor), into
the maintenance creditor’s bank account, or to the maintenance officer or another officer,
institution or organisation for onward transmission to the maintenance creditor. If a mainte-
nance order has already been made, the Maintenance Court may substitute or discharge it, or
not make an order.84
85
If a Maintenance Court varies an existing order, the latter order is replaced. However, the
existing order ceases to be of force and effect only in so far as the subsequent order of the
Maintenance Court expressly or by necessary implication replaces it. Thus, if the Mainte-
nance Court merely varies the amount of maintenance that is payable and does not expressly
or by necessary implication deal with other aspects, such as a resolutive condition like a dum
casta clause, those other aspects remain in force. (A dum casta clause provides that the party in
whose favour the order operates will forfeit maintenance if he or she leads an unchaste life.)
86
If an existing maintenance order is replaced, the order may have retroactive effect, pro-
vided that this is stated in the order.
Since an order for the periodical payment of sums of money towards the maintenance credi-
tor’s maintenance is merely one of the orders included within the meaning of the term
“maintenance order”, the Maintenance Court may make an order for the payment of mainte-
nance by way of periodical amounts or a lump sum.87 A maintenance order can also include
any provision the court deems fit regarding payment of medical expenses, including requir-
ing the maintenance debtor to register the maintenance creditor as his or her dependant
under a medical aid scheme.88 The court also has the power to direct a person who owes the
maintenance debtor periodical instalments of money because of a contract between them, to
make the periodical payments to the maintenance creditor instead of to the maintenance
debtor. The court only makes such an order if it is satisfied that it this not impracticable in
the circumstances of the case.89
A Maintenance Court that makes a maintenance order may order that two photographs be
taken of the maintenance debtor to facilitate tracing him or her should he or she fail to make
payments under the order.90
The Act also makes provision for orders to be made by default. An order by default is made
only at the request of the maintenance officer. If the Maintenance Court is satisfied that the
person against whom the maintenance complaint was made knows that he or she has been
subpoenaed to appear before the Maintenance Court but has failed to do so, it may call upon
the maintenance complainant to adduce evidence in support of the complaint.91 After consid-
ering the evidence, the court may make, substitute or discharge a maintenance order, make
any other order it considers appropriate, or decline to make an order.92 Thus, for example, a
maintenance order by default may be made against a maintenance debtor who tries to pro-
long or obstruct proceedings by simply not appearing before the court on the appointed date
and time. An order by default can be made against a person in whose favour the maintenance

________________________

84 S 16(1)(b).
85 S 22.
86 Levin v Levin 1984 (2) SA 298 (C); S v Frieslaar 1990 (4) SA 437 (C).
87 S 1. See also Oshry v Feldman 2010 (6) SA 19 (SCA) and ch 13 below.
88 S 16(1)(a)(i).
89 S 16(2).
90 S 43.
91 S 18(1).
92 S 18(2).
52 South African Family Law
93
order operates. The court may make an order in the absence of either or both of the parties
94
if the party or parties consent to such an order.
(d) Appeals
An appeal against a maintenance order made by a Maintenance Court must be brought in
the High Court.95 The appeal does not suspend the duty to pay maintenance under the
maintenance order, unless the appellant alleges that he or she is not legally liable to pay
maintenance.96
(e) Enforcement of a maintenance order97
(i) General
The Maintenance Act provides for civil and criminal sanctions for failure to comply with a main-
tenance order. The civil sanctions may be imposed even before a maintenance debtor is con-
victed of the offence of failing to make a payment in accordance with a maintenance order.98
(ii) Civil sanctions
The Act provides that if a maintenance debtor fails to make a payment in accordance with a
maintenance order within 10 days from the date on which the payment becomes payable, the
maintenance creditor may apply to the Maintenance Court for any of the following :
(1) A warrant (writ) of execution against the maintenance debtor’s property.
(2) An order for the attachment of emoluments due to the maintenance debtor (that is,
attachment of the maintenance debtor’s remuneration for employment, such as his or
her salary, wage, or allowance, regardless of whether or not it is expressed in money99).
(3) An order for the attachment of any present or future debt owing or accruing to the
maintenance debtor.100
The Maintenance Court is compelled to furnish the personal particulars of the maintenance
defaulter to credit bureaux and other businesses which grant credit or are involved in the
101
credit rating of persons when it grants any of the above applications. The object of this
provision, which has not yet come into operation, is to prevent a maintenance defaulter from
continuing to receive credit.
If the Maintenance Court issues a warrant of execution or makes an order of attachment,
the warrant or order relates only to the amount necessary to cover the amount the mainte-
nance debtor failed to pay in terms of the maintenance order (which would normally be the
arrear maintenance), together with interest thereon, and the costs of execution or attach-
ment.102 Any pension, annuity, gratuity, compassionate allowance or similar allowance or
benefit may be attached.103
________________________

93 S 18.
94 S 17.
95 S 25(1).
96 S 25(3).
97 For a detailed exposition on the enforcement of the duty of support, see Clark in Van Heerden et al (eds)
Boberg’s Law of Persons and the Family ch 12; Van Zyl Handbook of the South African Law of Maintenance 57–119;
De Jong 2009 SALJ 590. The Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 and the Recip-
rocal Enforcement of Maintenance Orders (Countries in Africa) Act 6 of 1989 make provision for the
recognition and enforcement in South Africa of maintenance orders issued in designated foreign coun-
tries or territories, as well as the recognition of South African maintenance orders in those foreign coun-
tries and territories. The designated countries and territories include Botswana, Kenya, Lesotho, Malawi,
Namibia, Nigeria, Swaziland, Zimbabwe, the Australian territories, Germany, New Zealand, the United
Kingdom, several Canadian provinces, and several states in the United States of America.
98 On this offence, see below in this chapter.
99 S 1(1).
100 S 26(2)(a) read with ss 27–30.
101 S 26(2A).
102 Ss 27(1), 28(1) and 30(1).
103 S 26(4).
 Chapter 5: The invariable consequences of a civil marriage 53

A warrant of execution operates against the maintenance debtor’s movable property and, if
that is insufficient, his or her immovable property.104 The warrant will be set aside if the
maintenance debtor satisfies the Maintenance Court that he or she has already complied with
the maintenance order.105 Further, on application by the maintenance debtor, the Main
tenance Court may suspend the warrant and make an order for the attachment of emolu-
ments or any present or future debt owing or accruing to the maintenance debtor.106 In
deciding whether to grant this application, the court must take the following factors into
account:
(1) The maintenance debtor’s existing and prospective means.
(2) The financial needs and obligations of, or in respect of, the maintenance creditor.
(3) The maintenance debtor’s conduct in so far as it may be relevant regarding his or her
failure to comply with the maintenance order.
(4) Other circumstances which should, in the court’s opinion, be taken into consideration.107
If the court makes an order for attachment of emoluments, it must instruct the maintenance
debtor’s employer to make payments on behalf of the maintenance debtor until the amount
the maintenance debtor has failed to pay, the interest thereon, and costs have been paid in
full.108 If the maintenance debtor’s employer fails to make any payment on behalf of the
maintenance debtor, the maintenance order can be enforced directly against the employer.109
If the maintenance debtor leaves the service of the employer, the employer must, within
seven days, notify the maintenance officer of the court which made the order.110 If an order
for attachment of a present or future debt owing or accruing to the maintenance debtor is
made, the Maintenance Court must order the person who incurred the debt to make the pay-
ments specified in the order.111
It is unclear whether the maintenance creditor may elect to approach the High Court for a
writ of execution instead of using the procedure provided for by the Maintenance Act. Two
single judges in the Western Cape Division of the High Court, Cape Town have delivered
112
conflicting judgments in this regard. In PT v LT, Binns-Ward J held that civil enforcement
of a maintenance order made by any court in South Africa must occur in terms of the
Maintenance Act. He held that since the section of the Act which governs civil enforcement
of maintenance orders no longer specifies that it applies only to orders made under the
113
Maintenance Act, the intention of the legislature must have been that the provision should
apply to all maintenance orders regardless of the court from which they originate. He con-
sequently concluded that the Registrar of the High Court may no longer issue writs of
________________________

104 S 27(1). The maintenance investigator or, in the absence of a maintenance investigator, the maintenance
officer must assist the maintenance creditor in taking the necessary steps to execute the warrant of execu-
tion: s 27(2)(b).
105 S 27(3).
106 S 27(4).
107 S 27(5).
108 S 28(1) read with s 29(1).
109 S 29(4).
110 S 29(2). The maintenance debtor must also notify the person, officer, institution or organisation to whom
the maintenance has to be paid, or, if payment has to be made into a bank account, the maintenance
officer of the court that made the maintenance order of the change of employment: s 16(4). An employer
who, without sufficient reason, fails or refuses to make payments on behalf of the maintenance debtor or
to notify the maintenance officer that the maintenance debtor has left his or her service, commits an
offence: s 38(a).
111 S 30(1). If the person fails or refuses without sufficient reason to make the payments stipulated in the
order, he or she commits an offence: s 38.
112 2012 (2) SA 613 (WCC).
113 S 18(a) of the Judicial Matters Second Amendment Act 55 of 2003 substituted par (a) of s 26(1) of the
Maintenance Act by deleting the phrase “under this Act”. S 26(1)(a) currently provides that it applies
“[w]henever any person … against whom any maintenance order has been made has failed to make any particular
payment in accordance with that maintenance order” (emphasis added).
54 South African Family Law
114
execution in respect of enforcement of maintenance orders. In JM v LM, Savage AJ disa-
greed with the finding in PT v LT. Savage AJ held that the fact that a party may approach the
Maintenance Court to enforce a maintenance order made by the High Court does not neces-
sarily imply that the High Court may not also enforce its own maintenance orders. As there is
no clear inconsistency between the provisions of the Superior Courts Act 10 of 2013 and the
Maintenance Act as to enforcement, a party who wants to enforce a maintenance order made
by the High Court may choose whether to proceed in the High Court or the Maintenance
Court. The finding in JM v LM is in keeping with the earlier decision of Van Oosten J in
115
Thomson v Thomson, where it was held that the Maintenance Act does not preclude a party
from issuing a writ of execution out of the High Court for failure to pay maintenance and
that a party may approach the High Court for enforcement of its maintenance order. It is
submitted that Thomson and JM v LM are preferable to PT v LT. As neither the Maintenance
Act nor the Superior Courts Act excludes the High Court’s power to issue writs of execution
for failure to comply with its maintenance orders, there is no reason to restrict its power in
this way, nor is there any reason to restrict parties’ options in enforcing maintenance orders
116
made by the High Court.
The Maintenance Act does not authorise attachment of a maintenance debtor’s assets in
respect of future maintenance payments (that is, in respect of maintenance payments which
are not yet due and in respect of which the maintenance debtor is not yet in default). The Act
only deals with execution and attachment once the maintenance debtor is in arrears. Howev-
er, as far as maintenance for children is concerned, our courts have held that they have a duty
in terms of section 28(2) of the Constitution to protect the best interests of children of
maintenance debtors who are likely to shirk their future maintenance responsibilities and
that the High Court is therefore empowered to order enforcement by way of remedies that
fall outside the ambit of the Maintenance Act. The courts have specifically cited the Constitu-
tional Court’s decisions in Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus
Curiae) 117 and Fose v Minister of Safety and Security 118 in support of extension of the enforcement
of a maintenance debtor’s obligations towards his or her children.119 In Fose the Constitutional
Court emphasised the courts’ duty to ensure that effective relief is granted for the infringe-
ment of a constitutional right. Bannatyne specifically dealt with enforcement of maintenance.
Mokgoro J referred to difficulties in the Maintenance Courts which result in the maintenance
system not functioning properly and the rule of law being negatively affected. She held that
[t]he judiciary must endeavour to secure for vulnerable children and disempowered women
their small but life-sustaining legal entitlements. If court orders are habitually evaded and defied
with relative impunity, the justice system is discredited and the constitutional promise of human
dignity and equality is seriously compromised for those most dependent on the law.120
She further held that Maintenance Courts and maintenance laws are important mechanisms to
give effect to children’s rights, and that failure to ensure the effective operation of the main-
tenance system amounts to a failure to protect children. She also indicated that the mainten-
ance system functions on a gendered basis that disadvantages women and undermines the
achievement of gender equality. Effective mechanisms for the enforcement of maintenance

________________________

114 2014 (2) SA 403 (WCC).

115 2010 (3) SA 211 (W).
116 See also De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 157; Heaton
2014 Annual Survey of South African Law (forthcoming).
117 2003 (2) BCLR 111 (CC), 2003 (2) SA 363 (CC), Heaton and Kruger Casebook on Family Law case [21].
118 1997 (7) BCLR 851 (CC), 1997 (3) SA 786 (CC).
119 For discussions of some of the cases which indicate that maintenance for children is increasingly viewed as
a children’s rights issue, see Moodley in Sloth-Nielsen and Du Toit (eds) Trials and Tribulations, Trends and
Triumphs 188; Hoctor and Carnelley 2007 TSAR 199.
120 Par 27.
 Chapter 5: The invariable consequences of a civil marriage 55

obligations were therefore “essential for the simultaneous achievement of the rights of the
child and the promotion of gender equality”.121
In compliance with its constitutional duty to afford effective relief to children whose best
interests were being violated by a recalcitrant maintenance debtor, the High Court in Mngadi
v Beacon Sweets & Chocolates Provident Fund 122 ordered a provident fund to retain the lump sum
withdrawal benefit of the children’s father and to make monthly payments from the benefit
in respect of the children’s future maintenance. Nicholson J held that the Constitution
required that the order be made, because
[t]o refuse the present application would be to further undermine the rights of children and dis-
empowered women [while to] grant the application will be to thwart an unreasonable, intran-
sigent father who has no respect for the provisions of the Maintenance Court order or his
common-law duties to maintain his own kith and kin.123
In this case, the father had resigned from his job in order to escape paying maintenance. He
was not in arrears at the time of the present order but had been in arrears in the past. The
court found that if he were allowed to withdraw his provident fund benefit he would most
probably “either secrete it away, spend it on himself or otherwise dissipate it” and would not
“nurture it carefully and preserve it to perform his maintenance obligations”.124 In Magewu v
Zozo 125 Hlophe J made a similar order in respect of the pension withdrawal benefit of a
maintenance debtor who had been retrenched.
Adopting the same proactive attitude, Ntshangase J in Burger v Burger 126 ordered the attach-
ment of the maintenance debtor’s portion of the proceeds of the sale of immovable property
in order to secure future maintenance for his children. The court further ordered the firm of
attorneys attending to the sale of the property to make maintenance payments to the chil-
dren’s mother from the maintenance debtor’s portion of the proceeds of the sale if the
mother succeeded in obtaining an emoluments attachment order or a writ of execution
against the maintenance debtor’s property. In this case, the maintenance debtor had resigned
from his employment and was still unemployed. He did not offer any reason for his resigna-
tion and did not make serious attempts to obtain new employment. He had fallen into arrears
with his maintenance payments and a writ of execution against his property had failed to
produce any money. He had reacted with hostility when the children’s mother sought to
obtain a commitment from him that he would surrender his portion of the proceeds of the
sale for his children’s maintenance.
In Gerber v Gerber and Pocock127 Ndita J also relied on section 28(2) of the Constitution in
making an order for the attachment and retention of the proceeds of the sale of immovable
property belonging to the maintenance debtor in order to secure payment of future mainten-
ance for his child. The maintenance debtor was in arrears, unemployed and without a source
of income. He was addicted to drugs and had spent more than a million Rand in less than
three months from the sale of shares he had owned. At the time of the application he was in a
drug rehabilitation centre. The court ordered the sheriff to attach and seize R400 000 from
the proceeds of the sale and to hold the amount in an interest-bearing account pending the
outcome of the application by the child’s mother to the Maintenance Court for a determin-
ation of the amount of maintenance to be paid in respect of the child. The court further
ordered the appointment of a receiver to take possession and control of the funds and to
retain an amount which would meet the maintenance obligation of the maintenance debtor
as determined by the Maintenance Court, as well as the child’s medical expenses and her
________________________

121 Par 30.

122 [2003] 2 All SA 279 (D), 2004 (5) SA 388 (D).
123 289B–C, 398D–E.
124 287D, 396D–E.
125 [2004] 3 All SA 235 (C).
126 2006 (4) SA 414 (D).
127 Cases 12166/07 and 12691/07, 8 Nov 2007 (C) (unreported).
56 South African Family Law

educational expenses until she completed secondary school, and to make monthly payments
to the child’s mother from that amount.
In Soller v Maintenance Magistrate, Wynberg 128 the court held that the maintenance debtor’s
continual defaulting on his maintenance payments justified an order that a retirement annuity
fund be prohibited from making payments to the maintenance debtor unless the Mainten-
ance Court or the maintenance debtor’s former wife (who had care of the couple’s minor
child) consented to such payment. The fund was further ordered to make annual mainten-
ance payments from the annuity to the child’s mother until the child became self-supporting.
What is particularly important to note is that Van Zyl J held that even a Maintenance Court
could make an order like this because section 28(2) of the Constitution “overrides any real or
ostensible limitation relating to the jurisdiction of magistrates’ courts”.129 He further held that
it would be absurd, and a costly time-wasting exercise, if an applicant for relief in a maintenance
court should be compelled to approach the High Court for such relief because of jurisdictional
limitations adhering to the magistrate’s court. This could never have been the intention of the
Legislature in enacting the Maintenance Act with the professed aim of rendering the procedure
for determining and recovering maintenance “sensitive and fair”.130
Finally, it should be noted that any order of the Maintenance Court has the effect of an order
in a civil action.131 Thus, like any other civil debt, maintenance and arrear maintenance can be
enforced in the ordinary courts in the ordinary way. In other words, enforcement need not
take place in terms of the Maintenance Act.
(iii) Criminal sanctions
Apart from the civil sanctions which may ensue from failing to comply with a maintenance
order, a defaulting maintenance debtor may also be charged with the crime of failing to make
a payment in accordance with a maintenance order.132 If the accused raises the defence that
his or her failure was due to a lack of means,133 he or she will not be acquitted if it is proved
that the failure was due to his or her unwillingness to work or his or her misconduct.134 Crim-
inal proceedings regarding the failure to comply with a maintenance order can be converted
into a maintenance enquiry if the Public Prosecutor requests this or the court considers it
desirable.135
If the accused is convicted of the crime of failing to make a payment in accordance with a
maintenance order, a fine or term of imprisonment (with or without the option of a fine)
may be imposed.136 The convicted maintenance defaulter’s personal particulars may also be
supplied to credit bureaux and other businesses which grant credit or are involved in the

________________________

128 2006 (2) SA 66 (C).

129 76C.
130 76C–D.
131 S 24(1).
132 S 31(1). On the offence and its predecessors, see Mamashela 2005 SALJ 217; Carnelley 2012 SAJC 349–351.
133 The defence of lack of means must be investigated even if the accused does not raise it: see eg S v More-
khure 2000 (2) SACR 730 (T); S v Nduku 2000 (2) SACR 382 (Tk). The onus of proving lack of means is
not discharged if the accused merely shows that his or her salary has dropped: MS v KS 2012 (6) SA 482
(KZP).
134 S 31(2). The state bears the onus of proving that the failure was due to the accused’s unwillingness to work
or his or her misconduct: see eg S v Nduku 2000 (2) SACR 382 (Tk); S v Mabona 2001 (2) SACR 306 (Ck);
S v Cloete 2001 (2) SACR 347 (C); S v Magagula 2001 (2) SACR 123 (T).
135 S 41. See further Mamashela 2005 SALJ 232–233, 2006 Obiter 592–594.
136 S 31(1). Since imprisonment often results in the person losing his or her job or, at the very least, having
no income and being unable to pay maintenance during the period of imprisonment, courts are
frequently loathe to sentence a convicted maintenance debtor to imprisonment (see eg S v Seroke 2004 (1)
SACR 456 (T)), but imprisonment is an appropriate sentence if the maintenance debtor’s failure was de-
liberate and recalcitrant: Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae) 2003 (2)
BCLR 111 (CC), 2003 (2) SA 363 (CC); S v Visser 2004 (1) SACR 393 (SCA). See further Carnelley 2012
SACJ 343.
 Chapter 5: The invariable consequences of a civil marriage 57

credit rating of persons.137 In terms of a provision which is still to be brought into operation,
the maintenance officer would be compelled to furnish these personal particulars to credit
bureaux and other businesses which grant credit or are involved in the credit rating of per-
138
sons.
The court may order that the arrear maintenance as well as interest on the arrears be
recovered from the convicted maintenance debtor, and execution may be taken against his or
her property.139 Unless this is impracticable in the circumstances, the court must further
direct a person who owes the convicted maintenance debtor periodical instalments of money
because of a contract between them, to make those periodical payments to the maintenance
creditor instead of the maintenance debtor.140
Ignoring a maintenance order also constitutes contempt of court, for which the mainten-
ance defaulter can be committed to prison. The High Court’s power to commit a mainten-
ance defaulter for contempt was unsuccessfully challenged in Bannatyne v Bannatyne (Commis-
sion for Gender Equality, as Amicus Curiae).141 The Constitutional Court held that contempt
proceedings in the High Court to secure the enforcement of a maintenance debt are “appro-
priate constitutional relief for the enforcement of a claim for the maintenance of children”.142
143
(Hopefully, the same applies to enforcement of maintenance for a spouse.) However, Mok-
goro J warned that the High Court may only be approached if there is good and sufficient
reason for doing so. What constitutes good and sufficient reason depends on whether or not,
in the circumstances of the particular case, “the legislative remedies available [that is, the
remedies under the Maintenance Act] are effective in protecting the rights of the complain-
ant and the best interests of the children”.144 In the present case, the complainant had repeat-
edly approached the Maintenance Court for enforcement of the maintenance order. Two
writs of execution had even been issued but had failed to produce any money. The complain-
ant and her children were left in parlous circumstances while the maintenance defaulter
“utilised the system to stall his maintenance obligations through the machinery of the Act”.145
Mokgoro J concluded that there was indeed good and sufficient reason to approach the High
Court for contempt proceedings.

5.5 The matrimonial home

During the subsistence of a civil marriage,146 both spouses are entitled to live in the matrimo-
nial home and to use the household assets (such as the furniture and appliances), irrespective
of whether they are married in or out of community of property and irrespective of which
spouse owns or rents the matrimonial home or household assets. This right does not arise
because one spouse confers it on the other. It is a sui generis (that is, unique) and invariable
consequence of a civil marriage.147
As a rule, the owning or renting spouse may not eject the other spouse from the matrimo-
nial home without providing him or her with suitable alternative accommodation. Nor may

________________________

137 S 31(4). These businesses will presumably blacklist the defaulter, thereby denying him or her the oppor-
tunity of entering into credit agreements which may further reduce the financial resources from which
maintenance can be paid: Sinclair assisted by Heaton 471 fn 206.
138 S 31(4) of the Act.
139 S 40(1) and (2).
140 S 16(2).
141 2003 (2) BCLR 111 (CC), 2003 (2) SA 363 (CC).
142 Par 20.
143 See also De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 159.
144 Par 23.
145 Par 32.
146 As the right only exists during the subsistence of the marriage it cannot be invoked by a widow: Dique v Van
der Merwe [2001] 2 All SA 289 (T), 2001 (2) SA 1006 (T).
147 Buck v Buck 1974 (1) SA 609 (R).
58 South African Family Law

the other spouse eject the owning or renting spouse.148 Because ejectment is an extraordinary
remedy it will not lightly be granted.149 Matrimonial guilt usually plays an important role,150 as
do the interests of the children who live in the matrimonial home.151 In this regard it should
particularly be borne in mind that section 28(2) of the Constitution requires that a child’s
best interests must be of paramount concern in every matter that concerns the child.152 There-
fore even the “innocent” spouse could be ejected from the matrimonial home if the interests
of a child required this.
Instead of using the common-law application for ejectment from the matrimonial home, a
spouse who is subjected to or threatened with domestic violence may invoke the Domestic
Violence Act 116 of 1998 to prevent the other spouse from entering the matrimonial home or
part of it.153
One spouse can protect his or her right to live in the matrimonial home and to use the
household assets against interference by the other spouse. If the other spouse threatens to in-
terfere with the right, for example, by threatening to eject the spouse from the matrimonial
home or remove household assets, an interdict can be sought.154 If the right has already been
violated, for example, if one of the spouses has denied the other access to the home and has
changed the locks or has removed household assets from the property, the prejudiced spouse
may rely on the mandament van spolie.155
The spouse’s right to live in the matrimonial home and to use the household assets in it
does not operate as against third parties.156 Thus, for example, a spouse cannot invoke his or
her right to occupy the matrimonial home as a defence if the property is repossessed because
of non-payment of bond instalments. Nor can the spouse demand occupation of the matrimo-
nial home from a purchaser who validly bought the home from the other spouse.

5.6 Donations between spouses

Before the commencement of the Matrimonial Property Act on 1 November 1984, spouses
who were married out of community of property were prohibited from making donations to
each other. Any donation which was made in contravention of the prohibition was voidable at
the instance of the donor. However, section 22 of the Act provides that subject to the pro-
visions of the Insolvency Act 24 of 1936, “no transaction effected before or after the com-
mencement of this Act is void or voidable merely because it amounts to a donation between
spouses”. This section clearly has retroactive effect. Thus even donations spouses made to
each other before the commencement of the Act are valid.157
________________________

148 Badenhorst v Badenhorst 1964 (2) SA 676 (T); Owen v Owen 1968 (1) SA 480 (E); Whittingham v Whittingham
1974 (2) SA 636 (R). See further Sonnekus 1998 TSAR 647.
149 Badenhorst v Badenhorst 1964 (2) SA 676 (T); Du Plessis v Du Plessis 1976 (1) SA 284 (W); Lovell v Lovell 1980
(4) SA 90 (T), Heaton and Kruger Casebook on Family Law case [22]; Oosthuizen v Oosthuizen 1986 (4) SA
984 (T).
150 Badenhorst v Badenhorst 1964 (2) SA 676 (T); see also Du Plessis v Du Plessis 1976 (1) SA 284 (W).
151 See eg Lovell v Lovell 1980 (4) SA 90 (T).
152 See also ss 6 and 9 of the Children’s Act.
153 S 7(1)(c) and (d). The Act is discussed in ch 21 below.
154 See eg Buck v Buck 1974 (1) SA 609 (R); Du Plessis v Du Plessis 1976 (1) SA 284 (W); Glass v Glass 1980 (3)
SA 263 (W).
155 See eg Rosenbuch v Rosenbuch 1975 (1) SA 181 (W); Oglodzinski v Oglodzinski 1976 (4) SA 273 (D); Coetzee v
Coetzee 1982 (1) SA 933 (C); Manga v Manga 1992 (4) SA 502 (ZSC); Ross v Ross 1994 (1) SA 865 (SE); Du
Randt v Du Randt 1995 (1) SA 401 (O); Mans v Mans (formerly Richens, born Maddock) [1999] 3 All SA 506 (C).
156 See eg Dique v Van der Merwe [2001] 2 All SA 289 (T), 2001 (2) SA 1006 (T). But see Cattle Breeders Farm
(Pvt) Ltd v Veldman 1973 (2) PH B14 (R) where the court protected the wife from eviction by a third party
who was merely her husband’s alter ego. The court held that as long as the company allowed the husband
to live in the company house, it could not evict the wife.
157 Van Rensburg 1991 De Rebus 289 argues that s 22 only applies to donations that have already been “effect-
ed”, ie, completed. Reversion clauses in antenuptial contracts and other deeds of donation are not
affected by s 22. A reversion clause refers to an agreement that the donation will revert to the donor in a
continued
 Chapter 5: The invariable consequences of a civil marriage 59

Part of the reason why the prohibition on donations between spouses existed was because
the spouses’ creditors could be seriously prejudiced if the spouses could freely make dona-
tions to each other. The proviso in section 22 of the Matrimonial Property Act with regard to
the Insolvency Act now protects creditors in the event of insolvency.
The reason why the prohibition on donations did not apply to marriages in community of
property was simply that spouses who are married in community of property can generally not
make donations to one another because they own the joint estate in undivided and indivisible
half-shares.158 If one spouse were to make a donation to the other, the donated item would
simply come out of the joint estate and fall back into it. The donation would therefore have
no effect. As community of property still entails that each spouse owns an undivided and
indivisible half-share of the joint estate, the abolition of the prohibition on donations be-
tween spouses has no application in marriages in community of property, unless the donor
spouse donates one of his or her separate assets to the other spouse subject to the provision
that the donation must be excluded from the joint estate.159

5.7 The family name

Many married women still assume their husband’s surname although they need not do so. In
terms of section 26(1) of the Births and Deaths Registration Act 51 of 1992, a wife may as-
sume her husband’s surname or, after having assumed his surname, resume a surname she
bore at any prior time, or add her married surname to any surname she bore at any prior
time (in other words, she may create a double-barrelled surname).160 A husband does not
have the same options. If he wants to assume his wife’s surname or add it to his own, he must
apply to the Director-General of Home Affairs for permission to do so. This differentiation
unjustifiably violates the equality clause.161 The differentiation becomes even more striking
when one compares the position of spouses in a civil marriage with that of civil union part-
ners: in a civil union either civil union partner may assume the other’s surname or, after
having assumed that surname, resume a surname he or she bore at any prior time, or create a
double-barrelled surname consisting of his or her post-civil union surname and a surname he
or she bore at any prior time.162 It is submitted that there is no constitutionally acceptable
justification163 for the differentiation between husbands in civil marriages and partners in civil
unions and that the restriction of the dispensation in section 26(1) to a wife in a civil mar-
riage is unconstitutional.

5.8 Headship of the family

In terms of our common law, the husband is the head of the family.164 In 1984, this common-
law rule was expressly incorporated into section 13 of the Matrimonial Property Act. In 1993
________________________

particular event, such as the beneficiary dying first or the marriage being terminated by divorce. On rever-
sion clauses in antenuptial contracts, see ch 7 below.
158 See ch 6 below.
159 Certain assets, eg donations the donor excludes from the joint estate, do not form part of the joint estate:
see ch 6 below.
160 If both spouses have double-barrelled surnames, the wife’s surname could end up being two double-
barrelled surnames together. Labuschagne 2003 SA Public Law 480 submits that double-barrelled surnames
should be prohibited.
161 S 9 of the Constitution. See further Heaton Bill of Rights Compendium par 3C22; Sinclair assisted by Heaton
138–139; Sonnekus 1993 TSAR 608. But see the decision of the Namibian Supreme Court in Müller v Presi-
dent of the Republic of Namibia 2000 (6) BCLR 655 (NmS) where a similar argument regarding sex discrim-
ination was rejected. For a critical discussion of the case, and an analysis of whether the rules regarding a
change of surname upon marriage discriminate against men or against women, see Bonthuys 2000 SALJ 468.
162 S 26(1) of the Births and Deaths Registration Act 51 of 1992, read with s 13(2) of the Civil Union Act. On
civil unions, see ch 16 below.
163 S 36 of the Constitution contains the limitation clause.
164 Voet 23.4.20.
60 South African Family Law

the legislator attempted to remove the husband’s headship from our law by deleting the
reference to it from section 13.165 However, as the true source of the rule is the common law
and not section 13, the deletion did not achieve what the legislator had in mind for the
deletion merely reinstated the common-law position.166
Even though the common-law rule that the husband is the head of the family was not abol-
ished by the deletion of section 13, it is arguable that section 11 of the Matrimonial Property
Act achieved the desired result or at least removed much of the content of the husband’s
headship of the family. Section 11 abolishes the husband’s marital power “over the person
and property of his wife”, but is silent on his headship of the family.167 However, because most
instances in which the husband exercises his powers as head of the family entail his exercising
a power over his wife and/or her property, those powers are probably covered by the aboli-
tion in section 11. For example, if a husband unilaterally decided that the family should move
to another town or country, he would be attempting to exercise a power over his wife’s per-
son. If he unilaterally determined the lifestyle of the spouses, he would be attempting to
exercise a power over his wife’s property if her property had to be used to (partly) finance
this lifestyle. His decision regarding their lifestyle might also involve exercising a power over
his wife’s person. For example, by unilaterally deciding on a lifestyle that involves frequent
entertaining at home he would be compelling his wife to either participate in entertaining or
to leave the house while he entertained. Thus it may well be that by abolishing the husband’s
marital power “over the person and property of his wife” the legislator simultaneously divest-
ed the husband of most (if not all) elements of his headship of the family. Furthermore,
applying the purposive, contextualised and Constitution-consistent interpretation of legisla-
168
tion dictated by the Constitutional Court, one would conclude that sections 11 and 13 of
the Matrimonial Property Act entail that the common-law rule regarding the husband’s
headship no longer forms part of our law, inter alia because the rule is clearly irreconcilable
with the ostensible purpose and context of chapter II of the Matrimonial Property Act, name-
ly placing spouses in a position of formal equality as against each other.169 If, however, one
were to conclude that the rule that the husband is the head of the family indeed still forms
part of our law, there is no doubt that the rule would be declared unconstitutional if it were
ever challenged, for it clearly constitutes unjustifiable unfair discrimination on the ground of
sex and gender and also constitutes an unjustifiable infringement of wives’ right to dignity.170

________________________

165 General Law Fourth Amendment Act 132 of 1993 s 30. S 4 of the Guardianship Act 192 of 1993 subse-
quently repealed the remainder of s 13 of the Matrimonial Property Act. The Guardianship Act has itself
since been repealed by s 313 read with schedule 4 of the Children’s Act.
166 See also Barratt (ed) Persons and the Family 275; Clark in Clark (ed) Family Law Service par L6; Sinclair in
Van Heerden et al (eds) Boberg’s Law of Persons and the Family 172; Sinclair assisted by Heaton 132–133, 439;
Sonnekus in Clark (ed) Family Law Service par B2; Wille’s Principles 256; but see Joubert in Clark (ed) Family
Law Service par A53.
167 On the abolition of the marital power, see further ch 6 below.
168 On the approach to interpretation of Acts which has been prescribed by the Constitutional Court, see ch 3
above.
169 See also Visser and Potgieter 72 fn 10.
170 S 9(3) of the Constitution protects the right not to be subject to unfair sex and gender discrimination,
while s 10 protects the right to dignity. See also Barratt (ed) Persons and the Family 274; Church and Church
in Church (ed) LAWSA Marriage par 61; Heaton Bill of Rights Compendium par 3C18; Sinclair in Van
Heerden et al (eds) Boberg’s Law of Persons and the Family 172; Sinclair assisted by Heaton 441–442; Skelton
and Carnelley (eds) Family Law 59.
 6
THE VARIABLE CONSEQUENCES
OF A CIVIL MARRIAGE –
MARRIAGE IN COMMUNITY OF PROPERTY

6.1 Introduction
Until the commencement of the Matrimonial Property Act 88 of 1984 on 1 November 1984,
two main matrimonial property systems existed in South Africa, namely marriage in commu-
nity of property with the marital power, and marriage out of community of property with the
exclusion of both community of profit and loss and the husband’s marital power. The latter
matrimonial property system is also known as complete separation of property. Other matri-
monial property systems were possible, but seldom occurred in practice.
The Matrimonial Property Act did not abolish the two matrimonial property systems which
were most common before 1984, but it abolished the marital power1 and introduced a vari-
ation of marriage out of community of property, namely the accrual system.2 However, the
primary matrimonial property system has always been, and still is, universal community of
property. In fact, when a couple enters into a civil marriage, a rebuttable presumption arises
that they are marrying in community of property.3 The Matrimonial Property Act did not
change this.

6.2 Cases in which community of property does not arise

As pointed out above, our law rebuttably presumes that all civil marriages are in community
of property. This presumption is rebutted by proving the presence of any of the following
circumstances:
(1) The existence of a valid antenuptial contract in which community of property and com-
munity of profit and loss are excluded.4
(2) The existence of a valid postnuptial notarial contract in which community of property
and community of profit and loss are excluded.5
(3) The husband’s lex domicilii at the time of the marriage provides that the marriage is out
of community of property. In terms of South African law, the husband’s lex domicilii at
the time of the wedding determines the matrimonial property system that operates in the
marriage.6 Thus, if the husband is domiciled in a country where marriage is automatically
________________________

1 Originally, the marital power was abolished only in marriages white, coloured and Asian persons entered
into after the coming into operation of the Act: see below in this chapter.
2 The accrual system is discussed in ch 7 below.
3 Edelstein v Edelstein 1952 (3) SA 1 (A); Brummund v Brummund’s Estate 1993 (2) SA 494 (NmHC).
4 The requirements for the creation of a valid antenuptial contract are discussed in ch 7 below.
5 On postnuptial variation of the matrimonial property system by means of a notarial contract, see ch 8 below.
6 Frankel’s Estate v The Master 1950 (1) SA 220 (A). For criticism of this rule, especially in the light of the Con-
stitution of the Republic of South Africa, 1996, see Forsyth 295–296 fn 116, 300; Neels 1992 TSAR 336; Hea-
ton and Schoeman 2000 THRHR 146; Schoeman 2004 TSAR 117–118, 140; Neels and Wethmar-Lemmer
continued
61
62 South African Family Law

out of community of property, the spouses are married out of community of property
unless they enter into an antenuptial contract in which they choose community of prop-
erty. For example, if the husband is domiciled in England at the time of the marriage
and the parties do not enter into an antenuptial contract, the marriage would, in terms of
English law, be out of community of property. Should the parties later emigrate to South
Africa, the marriage would remain out of community of property.7
(4) The spouses are African persons who entered into a civil marriage which is governed by
section 22(6) of the Black Administration Act 38 of 1927. In terms of this section, civil
marriages African persons entered into before the coming into operation of the Mar-
riage and Matrimonial Property Law Amendment Act 3 of 1988 (that is, before 2 De-
cember 1988) are out of community of property, unless the spouses made a joint written
declaration before a magistrate, commissioner or marriage officer, within one month prior
to the marriage, that they wished to marry in community of property, profit and loss.
This position is therefore the exact opposite of that which applies in marriages between
white, coloured and Asian persons. The Marriage and Matrimonial Property Law Amend-
ment Act repealed section 22(6) of the Black Administration Act and brought the patri-
monial consequences of civil marriages of African persons into line with those of white,
coloured and Asian persons. The patrimonial consequences of a civil marriage an Afri-
can couple entered into on or after 2 December 1988 are therefore exactly the same as
those that apply in the civil marriages of white, coloured and Asian persons.
African persons who married before the coming into operation of the Marriage and
Matrimonial Property Law Amendment Act could cause the provisions of the Matrimo-
nial Property Act to apply to their civil marriage by executing and registering a notarial
contract to that effect within two years of the commencement of the Marriage and Mat-
rimonial Property Law Amendment Act.8 In such cases the provisions of the Matrimonial
Property Act applied from the date on which the contract was registered. The possibility
of changing the matrimonial property system in this manner ceased to exist on 2 Decem-
ber 1990, but parties can still alter their matrimonial property system in terms of section
21(1) of the Matrimonial Property Act.9

6.3 The nature of universal community of property

The generally accepted view is that universal community of property entails that the spouses
become tied co-owners in undivided and indivisible half-shares of all the assets and liabilities
they have at the time of their marriage as well as all the assets and liabilities they acquire
during the marriage. Upon marriage, the spouses’ separate estates are automatically merged
into one joint estate for the duration of the marriage. Upon dissolution of the marriage, all
liabilities are settled from the joint estate and the balance of the joint estate is distributed
10
equally between the spouses. This view of the nature of universal community of property was
confirmed and applied by the Appellate Division (now the Supreme Court of Appeal) in
Estate Sayle v Commissioner for Inland Revenue,11 De Wet v Jurgens 12 and Mazibuko v National Director

________________________

2008 TSAR 587–588. Unfortunately, South African private international law does not currently have a ready
replacement for the rule. Therefore, the legislator should step in to enact a suitable and constitutionally
acceptable rule: Heaton Persons 41; Schoeman 2004 TSAR 140.
7 Frankel’s Estate v The Master 1950 (1) SA 220 (A); see also Sperling v Sperling 1975 (3) SA 707 (A); Bell v Bell
1991 (4) SA 195 (W); Brummund v Brummund’s Estate 1993 (2) SA 494 (NmHC).
8 Ss 21(2)(a), 25(2) and 25(3) of the Matrimonial Property Act.
9 On s 21(1) of the Matrimonial Property Act, see ch 8 below.
10 If the marriage is terminated by divorce, the spouses’ tied co-ownership of undivided and indivisible shares
of the joint estate automatically changes to free co-ownership of determinate and divisible shares: Ex parte
Menzies 1993 (3) SA 799 (C); Gugu v Zongwana [2014] 1 All SA 203 (ECM). See further Heaton in Heaton
(ed) Law of Divorce and Dissolution of Life Partnerships 96.
11 1945 AD 388, Heaton and Kruger Casebook on Family Law case [23].
12 1970 (3) SA 38 (A), Heaton and Kruger Casebook on Family Law case [24].
 Chapter 6: Variable consequences of a civil marriage - Marriage in community of property 63

of Public Prosecutions.13 It is important to note that this view implies that the spouses cannot
divide the joint estate during the subsistence of the marriage, for their half-shares are not
only undivided, but also indivisible for as long as the marriage lasts.14

6.4 The content of universal community of property

6.4.1 Assets
(a) General
The moment spouses enter into a marriage in community of property, they become co-
owners of all the assets either of them owns. Generally, all assets acquired by either spouse
after marriage also become part of the joint estate.15 An asset is anything that has monetary
value for the person who holds a right, title or interest in it. Examples of assets are immovable
property; share-block interests; motor vehicles; boats; aeroplanes; money; jewellery; clothing;
loan accounts in companies or partnerships; membership interests in close corporations;
goodwill in firms or businesses; shares; furniture; domestic appliances; works of art; debts one
of the spouses can claim; policies that have a cash or surrender value;16 and pension benefits
that have already accrued to one of the spouses.17
The transfer of ownership which occurs when spouses enter into a marriage in community
of property takes place automatically by operation of law so that no delivery of movable prop-
erty, registration of immovable property, cession of rights, and so on, is necessary.18
The general rule that all assets of both spouses become part of the joint estate is subject to
exceptions which are discussed immediately below.

________________________

13 2009 (6) SA 479 (SCA); see also Ex parte Menzies 1993 (3) SA 799 (C); Du Plessis v Pienaar [2002] 4 All SA
311 (SCA), 2003 (1) SA 671 (SCA); Corporate Liquidators (Pty) Ltd v Wiggill [2006] 4 All SA 439 (T), 2007 (2)
SA 520 (T); Zulu v Zulu 2008 (4) SA 12 (D).
14 See also ch 8 below. In certain circumstances, the court may divide the joint estate: see the discussion of
s 20 of the Matrimonial Property Act below in this chapter. If the spouses agree on an extra-judicial separa-
tion, they may also deviate from the consequences of community of property for the duration of their sepa-
ration: see ch 9 below.
15 This includes the right to occupy premises in terms of a tenancy, residential permit or statutory lease: Persad
v Persad 1989 (4) SA 685 (D); Toho v Diepmeadow City Council 1993 (2) SA 679 (W); Moremi v Moremi 2000 (1)
SA 936 (W).
16 Prior to the maturity date of the policy or the insured’s death or disability, it is only the policy holder’s
rights to surrender the policy, obtain a loan against the policy, etc that fall into the joint estate: Hees v South-
ern Life Association Ltd [2000] 1 All SA 327 (W), 2000 (1) SA 943 (W); Danielz v De Wet 2009 (6) SA 42 (C).
Likewise, a person who has been nominated as the beneficiary of a life insurance policy only acquires a
right to the proceeds of the policy when the policy matures or the insured dies or becomes disabled and
the beneficiary accepts the proceeds: Pieterse v Shrosbee; Shrosbee v Love [2006] 3 All SA 343 (SCA), 2005 (1)
SA 309 (SCA); Oshry v Feldman [2011] 1 All SA 124 (SCA), 2010 (6) SA 19 (SCA), Heaton and Kruger Case-
book on Family Law case [40]; PPS Insurance Company Ltd v Mkhabela 2012 (3) SA 292 (SCA). On the issue of
whether the proceeds of a life insurance policy fall into the joint estate or into the estate of the deceased
after his or her death, see ch 10 fn 5 below.
17 If the benefits have not yet accrued to the spouse, s 7(7) and (8) of the Divorce Act applies if the marriage
is terminated by divorce: see ch 12 below. On assets, see further Heaton in Heaton (ed) Law of Divorce and
Dissolution of Life Partnerships 70–80.
18 Ex parte Menzies 1993 (3) SA 799 (C); Corporate Liquidators (Pty) Ltd v Wiggill [2006] 4 All SA 439 (T), 2007
(2) SA 520 (T). Immovable property and real rights in immovable property which are obtained during the
subsistence of the marriage are registered in the names of both spouses unless such registration takes place
in the name of a partnership and the spouse is only involved in the capacity of partner: s 17(1) of the Deeds
Registries Act 47 of 1937. If immovable property which is registered in the name of either spouse is brought
into the joint estate, a note reflecting the other spouse’s interest in the property must be made on the title
deed if this is requested: s 17(4) of the Deeds Registries Act.
64 South African Family Law

(b) Separate assets19

(i) Assets excluded in an antenuptial contract
The spouses can exclude assets from the joint estate in an antenuptial contract. The fruits of
such assets form part of the joint estate unless they are also excluded in the antenuptial
contract.20 By virtue of the maxim pretium succedit in locum rei, res succedit in locum pretii (that is,
literally, the price takes the place of the asset, the asset takes the place of the price) any asset
which replaces an asset that is excluded in an antenuptial contract also falls outside the joint
estate.21 Thus, for example, if the spouses excluded an amount of money from the joint estate
and the money is used to buy a house, the house is also excluded from the joint estate.22
(ii) Assets excluded by will or deed of donation
A third party may make a donation or bequest to a spouse, subject to the condition that the
23
asset must not become part of the joint estate. The maxim pretium succedit in locum rei, res
succedit in locum pretii operates in respect of this category of excluded assets too.24 Thus, for
example, if a spouse inherits an amount of money that is excluded from the joint estate and
uses it to buy a motor vehicle, the motor vehicle is his or her separate property.25 However,
the fruits (for example, interest) of the donated or bequeathed asset fall into the joint estate
unless the donor or testator specifically excluded them too.26
(iii) Assets subject to a fideicommissum or usufruct
Property which is subject to a fideicommissum or usufruct is not part of the joint estate, but the
fruits or proceeds derived from such property are.27 Various reasons have been put forward
for this rule.28 The most acceptable explanation is that assets which are subject to a fideicom-
missum or usufruct do not fall into the joint estate because they are the beneficiary’s personal
rights which he or she cannot alienate.29 As a usufruct is inalienable, it cannot be replaced,
but fideicommissary property can. Some authors suggest that an asset which replaces property
that is subject to a fideicommissum falls into the joint estate, because the rationale for excluding
the fideicommissary property does not apply to the replacement asset.30

________________________

19 As is clear from the list of exceptions, separate assets were recognised at common law. Moseneke DCJ’s
statement in Van der Merwe v Road Accident Fund 2006 (6) BCLR 682 (CC), 2006 (4) SA 230 (CC) par 31 that
the Matrimonial Property Act introduced the notion of separate property is therefore incorrect. On this
point, see further Klopper 2007 THRHR 677–679.
20 Blatchford v Blatchford’s Executors (1861) 1 EDC 365.
21 Ex parte Lelie 1945 WLD 167.
22 If the proceeds are used to buy another asset of the same or a lesser value, the replacement is the spouse’s
separate property. The same applies if the separate asset is merely exchanged for another. However, it is
not clear what the position is if the value of the replacement or substitute exceeds that of the asset which
was originally excluded from the joint estate. Presumably the replacement or substitute is excluded only up
to an amount which is equal to the value of the original asset: Heaton in Heaton (ed) Law of Divorce and
Dissolution of Life Partnerships 80.
23 De Jong and Pintens 2015 TSAR 560 suggest that the default position ought to be that bequests and
donations become separate property.
24 Ex parte Lelie 1945 WLD 167.
25 But see fn 22 above on the difficulty that arises if the value of the replacement or substitute exceeds that of
the inheritance.
26 Yeats 1944 THRHR 159 et seq.
27 Van der Merwe v Van Wyk 1921 EDL 298; Barnett v Rudman 1934 AD 203; Van Wyk v Groch 1968 (3) SA 240
(E); see also Roux v Santam Versekeringsmaatskappy Bpk 1977 (3) SA 261 (T).
28 Coren Consilia 25 finds the reason in the prohibition on alienation which is placed on the property. Voet
23.2.77 states that the reason is that the property is res aliena (ie, the asset of another). In Barnett v Rudman
1934 AD 203 213 Beyers JA was of the opinion that the reason is to be found in the wishes of the testator.
29 Hahlo, 5th edn, 167; see also Church and Church in Church (ed) LAWSA Marriage par 70; Van der Vyver
and Joubert 540.
30 Lee and Honoré par 81(x); Wille’s Principles 270 fn 370; Yeats 1944 THRHR 159 et seq.
 Chapter 6: Variable consequences of a civil marriage - Marriage in community of property 65

(iv) Jocalia (that is, engagement gifts)

Arrhae sponsalitiae and sponsalitia largitas do not become part of the joint estate.31 In respect of
this category too, some authors suggest that replacement assets fall into the joint estate.32
(v) Benefits under the Friendly Societies Act 25 of 1956
In terms of section 17 of the Friendly Societies Act 25 of 1956, benefits due to a married
woman in terms of the Act do not fall into the joint estate.33 Restricting the exclusion to bene-
fits that are due to a wife constitutes unfair discrimination that is just as unjustifiable as the
discrimination that was occasioned by section 44(1) and (2) of the Insurance Act 27 of 1943,
except that, here, men are the victims of the discrimination. Section 44(1) and (2) of the
Insurance Act deprived wives of all or some of the benefits of life insurance policies ceded to
them or made in their favour by their husbands. In Brink v Kitshoff 34 the Constitutional Court
set section 44(1) and (2) aside on the ground that it constituted an unjustifiable violation of
women’s right not to be subject to unfair discrimination on the grounds of sex and marital
status.35 It is submitted that the same fate would befall section 17 of the Friendly Societies Act
if it was ever to be challenged under the Constitution.36
(vi) Non-patrimonial damages
Section 18(a) of the Matrimonial Property Act provides that any amount a spouse recovers by
way of non-patrimonial damages for a delict committed against him or her is his or her sep-
arate property. In terms of the decision in Van den Berg v Van den Berg,37 this provision includes
disability payments the injured spouse receives in terms of an insurance policy. The court
held that even though such payments are made in terms of the insurance contract between
the spouse and the insurance company, the payment is a direct result of a delict committed
against the spouse. The court therefore concluded that the causa (that is, the ground) for the
payment is delictual and not contractual, and that the amount is covered by section 18(a)
because it relates to non-patrimonial loss.
Section 18(a) is silent on the exclusion of proceeds and replacement assets of non-
patrimonial damages from the joint estate. In the case of marriages which are subject to the
accrual system, the Matrimonial Property Act expressly provides that the proceeds and re-
placements of some assets excluded from the accrual are similarly excluded from the accru-
al.38 In accordance with the maxim inclusio unius est exclusio alterius (that is, specific inclusion
of one implies exclusion of the other), the fact that the legislator expressly dealt with pro-
ceeds and replacements of excluded assets in some sections of the Act suggests that it did not
intend the proceeds and replacements of other excluded assets to be excluded from either
the joint estate or the accrual.39 Thus, the proceeds and replacement assets of non-
40
patrimonial damages are probably not excluded from the joint estate.
________________________

31 On the meaning of these terms, see ch 2 above. At common law, all jocalia became the sole property of the
recipient: see Yeats 1944 THRHR 159 et seq who refers to Rodenburg, Matthaeus, Van Wesel, Groenewegen
and Cos. In Reddy v Chinasamy 1932 NPD 461 the matter of sponsalitia largitas was raised. The husband had
given his wife a pair of gold bracelets during their engagement. During the marriage a creditor attached
them. The court decided, mistakenly in view of the common law, that the bracelets fell into the joint estate.
In Barkhan v Barkhan 1960 (4) SA 288 (W), followed in Levin v Levin 1960 (4) SA 469 (W), the court held
that arrhae sponsalitiae (in this case, an engagement ring) fall outside the joint estate and cannot be recov-
ered by the husband upon divorce.
32 Lee and Honoré par 81(x) fn; Wille’s Principles 271 fn 373; Yeats 1944 THRHR 159 et seq.
33 As the Act is silent on the exclusion of proceeds or replacement assets, it is presumably only the amount of the
benefits that is excluded from the joint estate. But see Lee and Honoré par 81 fn; Wille’s Principles 272 fn 375.
34 1996 (6) BCLR 752 (CC), 1996 (4) SA 197 (CC).
35 Ss 9(3) and 36 of the Constitution.
36 See also Heaton Bill of Rights Compendium par 3C23.
37 2003 (6) SA 229 (T). For criticism of the view that such damages are non-patrimonial, see Mailula 2005
THRHR 310–315.
38 Ss 4(1)(b)(ii) and 5(1) of the Matrimonial Property Act. See further ch 7 below.
39 But see Wille’s Principles 271 fn 371.
40 See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 81.
66 South African Family Law

(vii) Damages as a result of personal injury inflicted by the other spouse

In terms of section 18(b) of the Matrimonial Property Act, patrimonial and non-patrimonial
damages which are awarded to a spouse as a result of bodily injuries caused either wholly or
partly by his or her spouse become the injured spouse’s separate property.41 As the section is
silent on the exclusion of proceeds or replacement assets, it is presumably only the amount of
the damages that is excluded.42
(viii) Costs in a matrimonial action
If spouses who are married in community of property become involved in a matrimonial
action with each other without the marriage being dissolved, any costs awarded to either of
them do not fall into the joint estate.43
(ix) Proceeds excluded by the court in terms of the Prevention of Organised Crime Act 121 of 1998
In terms of section 50(1) read with section 48(1) of the Prevention of Organised Crime Act
121 of 1998, a property that is, on a balance of probabilities, “an instrumentality” of an offence
in schedule 1 of the Act, the proceeds of unlawful activities, or property associated with terror-
ist and related activities may be forfeited to the state. If the owner of the property is married
in community of property, both spouses’ rights in the property are forfeited to the state
because the spouses own the property in undivided and indivisible shares.44 The forfeited
property vests in a curator bonis on behalf of the state as of the date that the forfeiture order
takes effect.45 The curator disposes of the property and deposits the proceeds into the Crim-
inal Assets Recovery Account.46 In terms of the decision of the Supreme Court of Appeal in
Mazibuko v National Director of Public Prosecutions,47 the court that makes the forfeiture order
may order the curator not to deposit the full proceeds into the Criminal Assets Recovery
Account if one of the spouses is an “innocent owner” in the sense of having acquired his or
her interest in the property legally and not having known or had reasonable grounds to sus-
pect that the property was an instrumentality of an offence referred to in schedule 1, the pro-
ceeds of unlawful activities, or property associated with terrorist and related activities.48 The
Supreme Court of Appeal further held that the Act empowers the court to order that the
innocent owner’s excluded interest in the proceeds of the forfeited asset falls outside the joint
estate.
(c) Attachment of separate assets
In Du Plessis v Pienaar 49 the Supreme Court of Appeal made it clear that creditors of spouses
who are married in community of property can look to the joint estate and the estates of both
spouses for recovery of a joint debt. The court also held that exclusion of an asset from the
joint estate does not protect the asset in the case of insolvency, because all property of both
spouses fall into the insolvent estate if the spouses are sequestrated.50 The court stated that
the fact that a spouse owns separate assets
________________________

41 S 18(b) of the Matrimonial Property Act. Originally, the section excluded only damages for non-
patrimonial loss. The Constitutional Court found this restriction unconstitutional: Van der Merwe v Road
Accident Fund 2006 (6) BCLR 682 (CC), 2006 (4) SA 230 (CC). S 21 of the Judicial Matters Amendment Act
66 of 2008 amended s 18(b) in keeping with the Constitutional Court’s decision.
42 See fn 22 above.
43 Comerma v Comerma 1938 TPD 220; Wulfsohn v Van der Gryp 1961 (1) SA 596 (W).
44 See above in this chapter.
45 S 56(2) of the Prevention of Organised Crime Act.
46 S 57(1) read with the definition of “account” in s 1(1).
47 2009 (6) SA 479 (SCA).
48 See s 52(2) and (2A).
49 [2002] 4 All SA 311 (SCA), 2003 (1) SA 671 (SCA); see also De Wet v Jurgens 1970 (3) SA 38 (A); Badenhorst
v Bekker 1994 (2) SA 155 (N).
50 On the testator or donor’s inability to exclude an asset from an insolvent joint estate, see further Evans
2003 SA Merc LJ 228; Roux Sept 2012 De Rebus 30. Robinson in Atkin (ed) 2007 International Survey of Family
Law 281 suggests that the principles laid down in Van der Merwe v Road Accident Fund 2006 (6) BCLR 682
(CC), 2006 (4) SA 230 (CC) regarding the unconstitutionality of distinguishing between spouses married
continued
 Chapter 6: Variable consequences of a civil marriage - Marriage in community of property 67

is relevant to the manner in which the property may be dealt with by the spouses inter se [that is,
as between themselves] and to their rights upon dissolution of the marriage but does not affect
the ordinary right of a creditor to look to all the property of the debtor in satisfaction of a debt.51
In other words, if, for example, a testator excludes property from an heir’s joint estate, the
exclusion operates only as between the spouses and not as against third parties. Consequently,
even the excluded asset can be attached for joint debts, and the excluded asset falls into the
insolvent estate if the spouses are sequestrated.
The judgment does not deal with attachment of separate assets if the spouses are still sol-
vent. It seems that in such event, one spouse’s separate assets may not be attached for the
other spouse’s separate debts.52

6.4.2 Liabilities
(a) General
As a general rule, marriage in community of property not only results in community of assets
but also in community of liabilities. The merger of liabilities, like the merger of assets, applies
to antenuptial debts as well as debts incurred during the subsistence of the marriage.
In the past, the exact nature of the spouses’ liability for joint debts was unclear as the then
Appellate Division delivered conflicting judgments in this regard. On the one hand there was
authority that the spouses are quite simply joint debtors,53 while on the other hand the same
court also held that the spouses remain separate debtors even though the debt has to be paid
from the joint estate.54 More recently, the Supreme Court of Appeal has favoured the view
that the spouses are joint debtors.55 One consequence of this view is that one spouse who is
married in community of property cannot stand surety for the other spouse’s debts because
those debts are joint debts and in our law a person cannot stand surety for his or her own
debt.56 This is the position even if the spouse who stands surety has separate property.57
(b) Antenuptial debts
The Roman-Dutch authors state that all antenuptial debts of both spouses become joint debts
as soon as a marriage is concluded in community of property. They further state that there
are no exceptions to this rule.58 In principle, the rule that marriage in community of property
causes all antenuptial debts to become joint debts still applies in our law. This rule extends
not only to contractual debts of both spouses but also to maintenance obligations towards
parents, siblings, children from a previous marriage, and children born of unmarried par-
ents.59 However, it is not entirely clear whether the rule still applies to antenuptial delictual
debts. Since section 19 of the Matrimonial Property Act applies whenever “a spouse” is liable
________________________

in community of property and those married out of community as far as non-patrimonial damages are con-
cerned might require reconsideration of the law’s refusal to exclude the separate assets of a spouse who is
married in community of property from the insolvent estate.
51 Par 5. See further Nagel and Boraine 1993 De Jure 457; Sonnekus 1994 TSAR 143, 2003 TSAR 575.
52 Lee and Honoré par 84; Wille’s Principles 274; see also s 19 of the Matrimonial Property Act which indicates
that one spouse’s delictual debts cannot be recovered from the other spouse’s separate property; they can
only be recovered from the separate property of the spouse who committed the delict, or from the joint
estate if that spouse has no (or insufficient) separate assets.
53 See eg De Wet v Jurgens 1970 (3) SA 38 (A).
54 See eg Santam Versekeringsmaatskappy Bpk v Roux 1978 (2) SA 856 (A).
55 Nedbank Ltd v Van Zyl 1990 (2) SA 469 (A), Heaton and Kruger Casebook on Family Law case [25]; Du Plessis v
Pienaar [2002] 4 All SA 311 (SCA), 2003 (1) SA 671 (SCA).
56 Nedbank Ltd v Van Zyl 1990 (2) SA 469 (A).
57 Ibid (obiter); Du Plessis v Pienaar [2002] 4 All SA 311 (SCA), 2003 (1) SA 671 (SCA).
58 See eg Voet 23.2.80; Matthaeus Paroemia vol II 22.
59 On liability for maintenance in respect of a child born of unmarried parents, see Estate De Klerk v Rowan
1922 EDL 334 as opposed to Fitzgerald v Rex 1926 NPD 445. Voet 23.2.82 makes such a duty of support an
obligation of the joint estate, without exception.
68 South African Family Law

for delictual damages, it may be that the section relates not only to a delict committed during
the subsistence of the marriage but also to one committed prior to marriage but in respect of
which damages have not yet been paid.60 If section 19 indeed extends to an antenuptial
delictual debt, the delictual debt must be recovered first from the separate property of the
spouse who committed the delict, and then from the joint estate to the extent that the
spouse’s separate assets are insufficient to meet the debt. In so far as the damages are recov-
ered from the joint estate, an adjustment must be made in favour of the other spouse upon
division of the joint estate.61
(c) Debts incurred during the subsistence of the marriage
(i) Contractual debts
The answer to the question of whether a contractual debt incurred during the marriage must
be recovered from the joint estate or from the separate assets of the spouse who incurred the
debt depends on whether or not the spouse had the capacity to bind the joint estate. This, in
turn, depends on whether, if required, the other spouse’s consent to the transaction was
obtained.62 If the spouse who incurred the contractual debt indeed had the capacity to bind
the joint estate, the debt becomes a joint debt which can be recovered from the joint estate.
(ii) Delictual debts
Section 19 of the Matrimonial Property Act regulates the liability for delictual damages of
spouses who are married in community of property. It provides that when a spouse is liable
for damages or a contribution towards damages for a delict he or she committed, the creditor
must recover the amount as follows:
(1) Firstly, from the separate property of the spouse who committed the delict.63
(2) Secondly, if there is no or insufficient separate property, from the joint estate.64
In so far as the damages or contribution is recovered from the joint estate, an adjustment
65
must be made in favour of the other spouse upon division of the joint estate. The separate
assets of the spouse who committed the delict must first be exhausted before joint assets may
be seized. If joint assets are used and the joint estate is large enough for an adjustment to be
effected upon dissolution, the spouse who did not commit the delict is adequately protected.
However, if upon division the joint estate is too small for a total adjustment to be effected, the
spouse who did not commit the delict unfortunately has no remedy.
As a general rule, spouses who are married in community of property cannot sue each other
in delict, as each spouse owns half the joint estate and the amount recovered as damages will
come from the joint estate only to return to it.66 However, the Matrimonial Property Act
permits a spouse who is married in community of property to recover damages in respect of
bodily injuries caused either wholly or partly by the other spouse from that spouse. The
injured spouse can therefore hold his or her spouse, or that spouse’s insurer, liable for
damages resulting from, for example, a motor vehicle accident. The amount the injured
spouse receives is the spouse’s separate asset.67 If one spouse claims damages from the other,
the amount must, by virtue of section 19 of the Act, first be recovered from the separate assets
of the spouse who committed the delict. Should the separate assets be insufficient or should
________________________

60 See also Hahlo, 5th edn, 170, 184; Wille’s Principles 273.
61 For a detailed discussion of s 19, see below in this chapter.
62 The capacity of the spouses to administer the joint estate and incur debts is discussed below in this chapter.
63 Separate property is property which does not form part of the joint estate: see the definition in s 1 of the
Matrimonial Property Act and the discussion of separate assets above in this chapter.
64 This principle also applies to the costs, if any, that the spouse must meet in such action.
65 For the formula for and an example of calculating the adjustment, see Heaton in Heaton (ed) Law of
Divorce and Dissolution of Life Partnerships 95.
66 Tomlin v London and Lancashire Insurance Co Ltd 1962 (2) SA 30 (D).
67 S 18(b) of the Matrimonial Property Act.
 Chapter 6: Variable consequences of a civil marriage - Marriage in community of property 69

there be no separate assets at all, the damages must be paid out of the joint estate, with an
adjustment taking place when the joint estate is dissolved.
(iii) Other separate debts
At present, the legal position regarding other separate debts, such as criminal fines and a
spouse’s maintenance obligations towards his or her parents, siblings, children born of
unmarried parents, and children from a previous marriage, is unclear. Since the legislator has
seen fit to provide that a delictual debt a spouse who is married in community of property
incurs is that spouse’s separate debt,68 it seems only proper that the same rule should apply to
a criminal fine. In other words, subject to the innocent spouse’s right of recourse upon dis-
solution of the joint estate, a criminal fine should be recoverable from the joint estate if the
guilty spouse has no or insufficient separate assets. The same rule ought to apply to mainten-
ance debts in respect of a spouse’s parent, sibling, or child born of unmarried parents or a
previous marriage, for otherwise the other spouse would be compelled to contribute to the
support of someone in respect of whom he or she has no duty of support.69
In terms of section 17(1)(a) of the Matrimonial Property Act, a spouse may institute legal
proceedings in connection with his or her separate property without the other spouse’s con-
sent. Legal costs and debts in respect of such separate property ought also to be recovered
first from the separate property of the spouse concerned.
The legislator ought to intervene to achieve legal certainty about liability for all separate
debts by extending section 19 of the Matrimonial Property Act to criminal fines and other
70
separate debts of spouses married in community of property.
(d) Debts which are outstanding at the dissolution of the joint estate
(i) Contractual debts
Antenuptial contractual debts which have not yet been paid after the marriage has been dis-
solved can be recovered only from the original debtor.71 Whether the original debtor has a
right of recourse against the other spouse is unclear. Voet72 is of the opinion that the original
debtor has a right of recourse pro semisse (that is, for half the debt), while Van der Keessel73
holds the opposite view. In the only reported case on the issue, Reis v Executors of Gilloway,74
the court rejected a right of recourse, but this decision is difficult to reconcile with the idea
that, upon marriage, both antenuptial and postnuptial debts become joint debts. Further-
more, on the ground of fairness Voet’s view is preferred.75
After the dissolution of the marriage, contractual debts incurred during the subsistence of
the marriage can be claimed in full from the spouse who originally incurred the debt, or half
the debt can be claimed from the original debtor and the other half from the other spouse.76
________________________

68 See the discussion of s 19 of the Matrimonial Property Act above in this chapter.
69 The duty of support rests on blood relationship, adoption and marriage. Spouses are obliged to support
one another (see ch 5 above), as are blood relations. However, one spouse is not obliged to support the
other spouse’s blood relations: see ch 23 below.
70 See also De Jong and Pintens 2015 TSAR 561.
71 Grotius 2.11.15; Voet 23.2.80, 42.1.33; Van Leeuwen Rooms-Hollands-Regt 4.23.6, 5.3.13; Censura Forensis
1.4.23.21; Van der Keessel Theses Selectae 222, 224; Praelectiones 2.11.11, 2.11.12, 2.11.15; Blatchford v Blatch-
ford’s Executors (1861) 1 EDC 365; Thom v Worthmann 1962 (4) SA 83 (N).
72 23.2.80.
73 Theses Selectae 224; Praelectiones 2.11.15.
74 (1834) 1 Menz 186.
75 See also Church and Church in Church (ed) LAWSA Marriage par 87; Hahlo, 5th edn, 182; Lee and
Honoré par 97(i); Van der Vyver and Joubert 675–676; Visser and Potgieter 182; De Jong and Pintens 2015
TSAR 561.
76 Grotius 23.2.52, 23.2.80, 42.1.33; Thom v Worthmann 1962 (4) SA 83 (N); BP Southern Africa (Pty) Ltd v Viljoen
2002 (5) SA 630 (O); but see also Skelton and Carnelley (eds) Family Law 98 where it is stated – confusingly
and without reference to authority – that a debt that was incurred during the subsistence of the marriage
may be recovered “only from the original debtor” and also that “the creditor can recover 50% of the debt
from the original debtor and the other 50% from the spouse who did not incur the debt”.
continued
70 South African Family Law

If the original debtor pays the debt in full, he or she has a right of recourse for half, as the
debt was a joint liability.77 If one of the spouses possesses most of the assets of the former joint
estate after its dissolution (as a result of, for example, a forfeiture order made against the
other spouse upon divorce),78 the debt can be claimed in full from him or her without the
other spouse first being excussed.79
(ii) Delictual and other separate debts
Delictual and other separate debts which are outstanding after the dissolution of the marriage
can only be claimed from the original debtor. If the original debtor pays the debt, he or she
has no right of recourse against his or her former spouse.80

6.5 Administration of the joint estate

6.5.1 Abolition of the marital power
Before the commencement of the Matrimonial Property Act, the husband had the marital
power in all marriages in community of property. The marital power inter alia gave the hus-
band the power to incur debts, and to buy, sell, pledge and burden joint assets as well as his
wife’s separate assets over which his marital power had not been excluded.81 The common law
and the Matrimonial Affairs Act 37 of 1953 granted a degree of protection to the wife, but the
protection came nowhere near eliminating the objections to the marital power. For women,
the marital power was not only a restriction on their capacity to act, but also a serious vio-
lation of their dignity, because they were placed in a position of inferiority to their husbands.
Section 11 of the Matrimonial Property Act abolished the marital power and replaced it with a
system of equal administration of the joint estate.82 The effect of the abolition of the marital
power was to do away with the restrictions the marital power placed on the wife’s capacity to
act and litigate.83 However, the abolition did not affect the legal consequences of any act or
omission which took place before the abolition of the marital power.84
The abolition of the marital power was initially restricted to civil marriages white, coloured
and Asian persons concluded on or after 1 November 1984 (that is, after the coming into
operation of the Matrimonial Property Act). White, coloured, and Asian spouses who were
married before the coming into operation of the Act were, however, granted a four-year
period within which they could abolish the marital power by means of the execution and
registration of a notarial contract.85 They could also jointly apply to court for permission to
abolish the marital power and change their matrimonial property system.86

________________________

If the marriage has been dissolved by the death of one of the spouses, the creditor may not proceed directly
against the surviving spouse. The creditor has to lodge his or her claim with the executor of the deceased’s
estate. If an executor has not yet been appointed, the creditor must report the death and estate to the Mas-
ter of the High Court so that an executor can be appointed: Wright v Westelike Provinsie Kelders Bpk [2001] 4
All SA 581 (C). On the dissolution of a joint estate by death, see ch 10 below.
77 Voet 23.2.80; Van der Keessel Theses Selectae 225.
78 On forfeiture of patrimonial benefits upon divorce, see ch 12 below.
79 Maury (Edms) Bpk h/a Franelle Gordyn Boutique v Erasmus 1988 (2) SA 314 (O); BP Southern Africa (Pty) Ltd v
Viljoen 2002 (5) SA 630 (O).
80 Van der Keessel Theses Selectae 94, 225.
81 Estate Sayle v Commissioner for Inland Revenue 1945 AD 388 396.
82 On equal administration of the joint estate, see the discussion under the next heading below.
83 S 12 of the Matrimonial Property Act; Godfrey v Campbell 1997 (1) SA 570 (C).
84 S 11(4) of the Matrimonial Property Act; see also Senwes Bpk v Gouws [2003] 2 All SA 216 (O).
85 S 25(2) of the Matrimonial Property Act. Initially this concession applied only for two years, but it was later
extended by another two years: Matrimonial Property Amendment Act 91 of 1986; GN R2114 of 9 Oct
1986.
86 S 21(1) of the Matrimonial Property Act. S 21(1) is discussed in ch 8 below.
 Chapter 6: Variable consequences of a civil marriage - Marriage in community of property 71

When the Matrimonial Property Act was enacted, it did not apply to the civil marriages of
African persons.87 This restriction was removed by the Marriage and Matrimonial Property
Law Amendment Act, with the result that the Matrimonial Property Act governs all civil
marriages that have been concluded since 2 December 1988 (that is, the date of commence-
ment of the Marriage and Matrimonial Property Law Amendment Act). African persons who
entered into a civil marriage before the coming into operation of the Marriage and Matrimo-
nial Property Law Amendment Act could apply the provisions of the Matrimonial Property
Act (including the abolition of the marital power) to their marriage by executing and regis-
tering a notarial contract to that effect within two years of the date of commencement of the
Marriage and Matrimonial Property Law Amendment Act (that is, until 2 December 1990).88
It was only when section 29 of the General Law Fourth Amendment Act 132 of 1993 came
into operation on 1 December 1993 that the marital power was abolished completely in all
civil marriages. Section 29 of the General Law Fourth Amendment Act replaced section 11 of
the Matrimonial Property Act and further provided that the provisions of the Matrimonial
Property Act regarding equal administration of the joint estate would henceforth apply to all
marriages in community of property.

6.5.2 The principle of equal administration of the joint estate

The marital power was replaced by equal administration of the joint estate. Section 14 of the
Matrimonial Property Act provides that a wife who is married in community of property has
the same capacity to dispose of the assets of the joint estate, incur debts which lie against the
joint estate, and manage the joint estate, as a husband had immediately prior to the com-
mencement of the Act. The spouses thus have equal powers to administer the joint estate and
incur debts that bind the joint estate.
Were the legislator to require by way of a principle of joint management that both spouses
act together on all occasions, that is to say, were the consent of both spouses required for all
juristic acts concerning the joint estate, everyday commercial traffic would be hampered
immensely. However, the spouses’ interests in the joint estate and the interests of third parties
would be left unprotected if either spouse could deal freely with the estate. The Matrimonial
Property Act lays down that, in principle, either spouse can perform any juristic act with
regard to the joint estate without the consent of the other spouse,89 but that the other
spouse’s consent must be obtained for certain juristic acts.90 The practical effect of the con-
sent requirement is that both spouses’ capacity to act is restricted. The acts for which both
spouses’ consent is required are those which are considered to be of such importance that
unilateral action could lead to serious friction.91

6.5.3 Acts for which the consent of both spouses is required

(a) General
Sections 15(2), 15(3) and 17(1) of the Matrimonial Property Act list the acts for which both
spouses’ consent must be obtained.92 The legislator requires different types of consent
________________________

87 S 25(1) of the Matrimonial Property Act.

88 Ss 3 and 4 of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988.
89 S 15(1).
90 Ss 15(2), 15(3) and 17(1).
91 South African Law Commission Report Pertaining to Matrimonial Property Law with Special Reference to the Matri-
monial Affairs Act, 1953, the Status of the Married Woman, and the Law of Succession in so far as it Affects the Spouses
par 19.2.
92 The consent requirement ceases to apply when the marriage comes to an end. Therefore it does not apply
to a marriage that has been dissolved by divorce: Gugu v Zongwana [2014] 1 All SA 203 (ECM). Nor is the
consent of the executor of the deceased spouse’s estate required in place of the deceased spouse’s consent:
Kotzé v Oosthuizen 1988 (3) SA 578 (C). The consent requirement also does not apply if one of the spouses
has been appointed as the other’s curator: Vaal Reefs Exploration and Mining Company Limited v Burger [1999]
4 All SA 253 (SCA), 1999 (4) SA 1161 (SCA); but see Van Schalkwyk 2001 De Jure 149.
72 South African Family Law

depending on the type of juristic act the spouse intends performing. The Act provides for
four types of consent. The different types of consent and the acts for which they are required
are discussed below.
(b) Prior written consent, attested by two competent witnesses, in respect of each transaction
separately
This form of consent is necessary for the following transactions:
(1) Alienating or burdening immovable property which forms part of the joint estate, or con-
ferring any other real right in it.93 In other words, such consent is required for entering
into a transaction which requires registration in the deeds office, such as transferring im-
movable property, registering a mortgage or servitude over such property, or granting
any other real right over such property.
(2) Suretyship.94
Section 15(4) provides that ratification is not permitted in respect of these juristic acts.
Therefore, the written, attested consent must be obtained before the juristic act occurs. As
the consent must be granted separately for each of the acts, one spouse cannot grant a power
of attorney or mandate to the other to enter into such juristic acts in general.95
(c) Written consent, attested by two competent witnesses, in respect of each transaction
separately
This form of consent is necessary for the following transactions:
(1) Entering into a contract to alienate, burden with a mortgage or servitude, or confer any
other real right in immovable property which forms part of the joint estate.96 The differ-
ence between these juristic acts and those that are listed in category (1) under the previ-
ous heading is that the present category relates to the contract which creates the obligation
to alienate, burden with a mortgage or servitude, or confer the real right, while category
(1) under the previous heading relates to the juristic act that actually alienates, mortgages,
burdens with a servitude or confers a real right in immovable property.
(2) Receiving credit under a credit agreement as defined in the National Credit Act 34 of
2005.97

________________________

93 S 15(2)(a).
94 S 15(2)(h); see also Amalgamated Banks of South Africa Bpk v De Goede [1997] 2 All SA 427 (SCA), 1997 (4) SA
66 (SCA).
95 The spouses may not deviate from these provisions in their antenuptial contract: Van Wyk 1985 De Rebus 21.
96 S 15(2)(b). If a loan agreement provides that the loan is to be secured by way of a mortgage, this does not
turn the loan agreement into a transaction that falls within the ambit of s 15(2)(b): Gounder v Top Spec In-
vestments (Pty) Ltd [2008] 3 All SA 376 (SCA), 2008 (5) SA 151 (SCA). Sonnekus 2005 TSAR 377 submits
that a transaction in terms of which a bank lends more money to its client on the ground of an existing
mortgage bond falls within the ambit of s 15(2)(b) even though the transaction does not burden immova-
ble property which forms part of the joint estate with another mortgage bond.
In Pinnacle Point Casino (Pty) Ltd v Auret [1999] 2 All SA 491 (C) the court held that a contract for the alien-
ation of immovable property which is concluded without the spousal consent required by s 15(2)(b) is “not
invalid per se” as the other spouse can ratify it within a reasonable time. In Markram v Scholtz [2000] 4 All SA
452 (NC) it was common cause that such a contract is unenforceable until the other spouse has signed it.
The court did not question this assumption.
97 S 15(2)( f ). For a detailed analysis of whether a credit card transaction is a credit agreement as envisaged in
s 15(2)( f ), see Otto 1997 TSAR 216. On the issue of whether both spouses must be notified of termination
of debt review under the National Credit Act before the creditor may commence legal proceedings to en-
force a debt under the Act, see Subramanian v Standard Bank Ltd (7008/11) [2012] ZAKZPHC 12 (13 March
2012) (where the court held that both spouses must receive notice); Motor Finance Corporation v Herbert
(16098/2011) [2012] ZAWCHC 35 (24 April 2012) (where the court held that only the spouse who entered
into the contract must receive notice); Moosa July 2013 De Rebus 26.
 Chapter 6: Variable consequences of a civil marriage - Marriage in community of property 73

(3) Purchasing immovable property under a contract of sale as defined in the Alienation of
Land Act 68 of 1981.98
These juristic acts may be ratified.99 As is the case in respect of the juristic acts listed in the
previous paragraph, consent must be granted separately in respect of each act. Thus one
spouse cannot grant a power of attorney or mandate to the other to enter into such juristic
acts in general.
(d) Written consent without any further requirements
This form of consent is necessary for the following transactions:
(1) Alienating, ceding or pledging shares, stock, debentures, debenture bonds, insurance
policies, mortgage bonds, fixed deposits or any similar assets or any investment by or on
behalf of the other spouse in a financial institution.100
(2) Alienating or pledging assets held mainly as investments and which form part of the joint
estate. Examples of such assets are jewels; coins; stamps; and paintings.101
(3) Withdrawing money credited to the name of the other spouse in any account in a bank-
ing institution or post office savings bank.102
(4) Instituting or defending legal proceedings which do not relate to the spouse’s profes-
sion, trade or business, or his or her separate property, or the recovery of non-
patrimonial damages for a delict committed against him or her.103
Ratification is permitted in respect of the juristic acts listed under (1) to (3) above.104
(e) Oral or tacit consent
For certain juristic acts the Act simply requires consent, without stipulating the form of
consent that is required. In these cases, consent may be given in writing, but oral or even tacit
consent will suffice. This form of consent is required for the following transactions:
(1) Alienating or pledging furniture or “other effects of the common household” which
form part of the joint estate.105 Whether a specific item falls within this category is deter-
mined in view of the circumstances of each case. Examples of items which probably qual-
ify as household effects are furniture; curtains; crockery; cutlery; and household
appliances such as stoves, refrigerators, washing machines, microwave ovens, tumble
driers and dishwashers.
(2) Receiving money which is owed to the other spouse for any of the following:
(a) Remuneration in any form, including a bonus, pension, or gratuity for services ren-
dered, or in respect of his or her profession, trade or business, or damages for loss
106
of income from those sources.
(b) Income derived from his or her separate property.

________________________

98 S 15(2)(g).
99 S 15(4). The ratification must take the form the Matrimonial Property Act requires for consent to the
particular juristic act: Van der Vyver and Joubert 557; Visser and Potgieter 127; Van Schalkwyk 2001 De
Jure 155; see also Church and Church in Church (ed) LAWSA Marriage par 73; Sinclair in Van Heerden et
al (eds) Boberg’s Law of Persons and the Family 190 fn 103.
100 S 15(2)(c). Muller 2006 THRHR 269 submits that an insured who effected a life insurance policy before
entering into a marriage in community of property must obtain spousal consent for an alteration or revo-
cation of a nomination under the policy.
101 S 15(2)(d).
102 S 15(2)(e).
103 S 17(1). See further the discussion of the spouse’s capacity to litigate below in this chapter.
104 S 15(4).
105 S 15(3)(a).
106 One spouse does not require the consent of the other spouse to enter into a contract to earn remunera-
tion: Maharaj v Sanlam Life Insurance Ltd and Others [2011] 2 All SA 571 (KZD), 2011 (6) SA 17 (KZD).
74 South African Family Law

(c) Interest and dividends on, or the proceeds of, shares, investments, insurance poli-
cies or annuities.
(d) An inheritance, donation, bursary or prize.107
(3) Donating any asset from the joint estate to a third party108 if the donation will unreason-
ably prejudice the other spouse’s interest in the estate.109 Whether unreasonable preju-
dice will occur is determined in view of the value of the donation; the reasons for making
it; the parties’ standard of living; their social and financial position; and any other factor
the court considers relevant.110
Ratification is permitted for these juristic acts.111

6.5.4 Acts for which the other spouse’s consent is unnecessary

No consent is necessary for juristic acts which are not mentioned in the Matrimonial Property
Act.
In addition, so as not to impede commercial traffic unnecessarily, section 15(6) of the Act
provides that consent is not required for the transactions listed in sections 15(2)(b), (c), ( f ),
(g) and (h) if they are performed by a spouse in the ordinary course of his or her profession,
trade or business. A spouse may thus in the ordinary course of his or her profession, trade or
business conclude a contract to alienate immovable property,112 receive credit, alienate shares,
purchase land, bind himself or herself as surety, and institute or defend legal proceedings
without spousal consent.113
114
In Strydom v Engen Petroleum Ltd the Supreme Court of Appeal held that, in substance,
section 15(6) is a proviso to the consent requirement in section 15(2). Therefore, section
15(6) cannot be viewed in isolation of section 15(2). If it is alleged that a particular juristic act
occurred in the ordinary course of a person’s profession, trade or business and the person
disputes this allegation, he or she must prove not only that he or she was married in commu-
nity of property when the juristic act occurred and that his or her spouse did not consent to
115
it, but also that section 15(6) does not apply.
It seems that the courts are willing to interpret the requirement that the spouse must have
acted in the ordinary course of his or her profession, trade or business quite leniently. In
Amalgamated Banks of South Africa Bpk v De Goede 116 a man donated 12 per cent of the member’s
interests in a close corporation to his son and son-in-law. The son was a full-time teacher and
the son-in-law a full-time clerk in the Air Force. They bound themselves as sureties in their
capacity as members of the close corporation for the debts of the close corporation but did
________________________

107 S 15(3)(b). As the section refers only to receiving money due or accruing to a spouse by way of inheritance
or legacy, spousal consent is not required for the renunciation of an inheritance or legacy: Gounden v Mas-
ter of the High Court [2015] JOL 32896 (KZD).
108 A transaction in terms of which property is sold well below its value constitutes a donation in respect of
the difference between the selling price and the value of the property: Visser v Hull 2010 (1) SA 521
(WCC).
109 S 15(3)(c).
110 S 15(8). Van Niekerk A Practical Guide to Patrimonial Litigation in Divorce Actions par 4.2.1.1 submits that it
should be assumed that a donation will unreasonably prejudice the other spouse’s interest in the joint es-
tate, and that the respondent therefore bears the onus of proving that the donation does not and will
probably not unreasonably prejudice the other spouse’s interest. See also Church and Church in Church
(ed) LAWSA Marriage par 73; Sinclair 18 fn 82.
111 S 15(4).
112 Consent is still required in order to give transfer. On this anomaly, see Church and Church in Church
(ed) LAWSA Marriage par 73; Sinclair 17 fn 80; Van Aswegen 1984 Modern Businessman’s Law 143–144; Van
Wyk 1985 De Rebus 23.
113 See also s 17(1)(c).
114 [2013] 1 All SA 563 (SCA), 2013 (2) SA 187 (SCA); Heaton and Kruger Casebook on Family Law case [29].
115 For criticism of this finding, see Sonnekus 2013 TSAR 551.
116 [1997] 2 All SA 427 (SCA), 1997 (4) SA 66 (SCA).
 Chapter 6: Variable consequences of a civil marriage - Marriage in community of property 75

not take part in the day-to-day management of the business. Despite this, the majority judg-
ment of the Supreme Court of Appeal was that the men had signed the deeds of suretyship in
the ordinary course of their business. Whether the facts of the case justified this conclusion is
doubtful.117
In Tesouriero v Bhyjo Investments Share Block (Pty) Ltd 118 it was held that the decision in De
Goede means that a spouse acts in the ordinary course of his or her business if he or she signs a
deed of suretyship in respect of a lease of business premises by a close corporation of which he
or she owns half the member’s interests and in the business of which he or she is actively
engaged.119 It is submitted that even in the absence of the decision in De Goede the facts of this
particular case were such that the court would have had to conclude that the suretyship had
120
been signed in the ordinary course of the spouse’s business.
In Strydom v Engen Petroleum Ltd the majority of the Supreme Court of Appeal referred to its
earlier decision in De Goede and held that the key issue in determining whether a person had
executed a deed of suretyship in the ordinary course of his or her business is “whether the
surety’s involvement in that business is his or her business and whether the execution of the
suretyship was in the ordinary course of the surety’s business, not the business of the compa-
121
ny, close corporation, partnership or trust”. If the surety is “a mere salaried employee,
having no commercial interest in the business’ success or failure”, it may be that he or she did
122
not execute the suretyship in the ordinary course of his or her business. However, if the
person holds a number of non-executive directorships that are the principal source of his or
her income, he or she “may well when executing a deed of suretyship for one of those com-
123
panies be acting in the ordinary course of [his or her] business”. According to the majority,
these examples illustrate that the issue of whether a deed of suretyship was executed in the
124
ordinary course of a person’s business is a question of fact. In the present case, the court
held that a husband who fulfilled marketing functions that were integral to the operations of
the business, had a debit loan account with the business, signed directors’ resolutions, and
was present at business meetings had executed the contested suretyship agreement in the
ordinary course of his business.
Finally, section 15(7) of the Matrimonial Property Act exempts transactions on the stock
exchange concerning listed securities, and transactions concerning deposits at a banking
institution in the name of the spouse who wishes to deal with the deposit, from the consent
requirement.

6.5.5 Protective measures in respect of the administration of the joint estate

(a) Protection of third parties
Section 15(9)(a) of the Matrimonial Property Act protects a 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 person’s spouse had to consent to
the transaction or that the necessary consent was not obtained. In such a case the transaction
________________________

117 See also Barratt (ed) Persons and the Family 294; Sonnekus 1998 TSAR 161–163; but see McLennan 2000
SALJ 369.
118 2000 (1) SA 167 (W).
119 On the issue of when a spouse can be said to be acting in the ordinary course of his or her profession,
trade or business, see further Visser and Potgieter 122 fn 27; Sonnekus 1998 TSAR 155; McLennan 2000
SALJ 367; Van Schalkwyk 2001 De Jure 155–158; Sonnekus 2013 TSAR 549–550.
120 See also Dormell Properties 282 CC v Bamberger (20191/14) [2015] ZASCA 89 (29 May 2015), where the
surety was the sole director and shareholder of the business.
121 Par 10.
122 Ibid.
123 Ibid.
124 See also Investec Bank Ltd v Naidoo (unreported, DCLD Case no 9640/98, cited in Strydom), where it was
held that the question of whether somebody had executed a suretyship in the ordinary course of his or
her business must be judged objectively with reference to what is expected of a businessperson.
76 South African Family Law

is deemed to have been entered into with the required consent. In other words, in so far as a
bona fide third party is concerned, the transaction is valid and enforceable. The protection
that section 15(9)(a) affords can be invoked only by the third party. Spouses who did not
comply with the consent requirement may not rely on the section in order to hold the third
party to the transaction.125
The Act does not prescribe how it must be established whether the third party could reason-
ably have known that consent was required or not given. In Distillers Corporation Ltd v Modise 126
the court held that the use of the word “reasonably” implies that an objective test must be
used. Thus the matter must be considered from the point of view of the reasonable person in
the third party’s position. The court further held that if a deed of suretyship contains a clause
stating that the surety is legally competent to execute the deed, and a spouse who is married
in community of property signs the deed after having read it and without being misled by the
creditor about the import of the deed, the reasonable person in the creditor’s position would
accept that the surety has the necessary spousal consent.127 In Visser v Hull 128 the court adopted
a different approach in respect of third parties who were the blood relations of the spouse
who sold immovable property belonging to the joint estate to them without the required
spousal consent. At the time of the sale and transfer of the property, the spouses were living
apart. In the documentation relating to the sale and transfer, the husband indicated that he
was unmarried. While the spouses were still living together, the third parties had visited the
couple at the immovable property, which was the spouses’ matrimonial home. The third par-
ties knew that the couple had children together and that the children and their mother con-
tinued to live in the house after the seller had left. The court held that a third party must “do
more than rely upon a bold assurance by another party regarding his or her marital status”.129
What is required is that the third party must undertake “an adequate inquiry”.130 As the third
parties in the present case were the seller’s blood relations and knew that the seller’s children
and their mother had lived in the house for many years, the third parties should have made
enquiries regarding whether the seller was married and, if so, whether the marriage was in
community of property. In the circumstances of this case, the third parties could reasonably
________________________

125 Govender v Maitin 2008 (6) SA 64 (D). In this case, the court held that it could never have been the legis-
lator’s intention to “provide a weapon to enable partners in a marriage in community of property to
enforce transactions against third parties where any of such spouses contract contrary to the peremptory
provisions of s 15(2) with third parties who act in good faith and do not know and cannot reasonably
know that the transaction is being entered into contrary to those provisions”: par 11.
126 2001 (4) SA 1071 (O), Heaton and Kruger Casebook on Family Law case [26].
127 Sinclair 17 fn 80, 20 fn 88 and Van Wyk 1985 De Rebus 22 submit that an approach which least restricts
commercial traffic should be adopted, and that the ordinary businessperson who has made enquiries
ought to be able to rely on the information supplied by the spouse. The decision in Distillers Corporation
Ltd v Modise seems too lenient even for this approach as the court did not require the creditor to make
any enquiries whatsoever about the surety’s marital status or the presence of spousal consent. The mere
fact that the surety signed a document in which it was stated that he was legally competent to sign the
deed of suretyship was considered sufficient. For criticism of the decision, see Christie and Bradfield Con-
tract 237; Sonnekus 2002 Journal for Juridical Science 153; Steyn 2002 SALJ 253; Jacobs and Steynberg 2003
THRHR 510. Sonnekus 2005 TSAR 379–381 is of the view that a bank which fails to ensure that the con-
sent requirement is met when it grants a bank loan which is secured by means of a mortgage bond or
when it lends more money to a spouse on the basis of an existing mortgage bond will rarely be able suc-
cessfully to invoke s 15(9)(a). He suggests that banks should protect themselves by requiring both spouses
to sign the loan and mortgage documents and by investigating applicants’ marital status and matrimonial
property system: 378–383. He also recommends that banks should, on an annual basis, require their cli-
ents to provide written confirmation of their marital status (and, presumably, also of the matrimonial
property system that operates in the marriage): 381. See further Barratt (ed) Persons and the Family 298;
Hahlo, 5th edn, 253; Sinclair in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 191; Skelton
and Carnelley (eds) Family Law 93–94; Visser and Potgieter 128; McLennan 2000 SALJ 367; Sonnekus
2013 TSAR 547–548, 554.
128 2010 (1) SA 521 (WCC).
129 Par 8.
130 Ibid.
 Chapter 6: Variable consequences of a civil marriage - Marriage in community of property 77

have been required to make enquiries from the children and their mother and/or members
of the close-knit local community in which the children and their mother lived.
The Act is silent on the consequences if the third party was mala fide, that is if he or she
indeed knew that spousal consent was necessary and was not obtained. From the case law it
appears that the transaction is void. In Amalgamated Bank of South Africa Bpk v Lydenburg Passa-
siersdienste 131 the court held that a deed of suretyship which had been signed without the re-
quired spousal consent was void. In Amalgamated Banks of South Africa Bpk v De Goede 132 the
Supreme Court of Appeal reversed the decision in Lydenburg Passasiersdienste on the facts, as it
concluded that the particular deed of suretyship had indeed been signed in the ordinary
course of the spouses’ business and was therefore valid.133 The Supreme Court of Appeal, how-
ever, did not deal with that part of the decision of the court a quo in which it had been held
that a deed of suretyship signed without the required spousal consent is void. Lydenburg Passa-
siersdienste therefore still is authority for the view that a juristic act which contravenes the con-
sent requirement is invalid.
In Bopape v Moloto 134 the court applied the judgment in Lydenburg Passasiersdienste and
ordered a woman who had received donations totalling approximately R200 000 from her
lover, whom she knew to be married in community of property, to repay the money. The
court further held that the prejudiced spouse may recover the transferred asset from the mala
fide third party even though he or she may also have a remedy against his or her spouse. In
this case, the defendant argued that the donations were valid in so far as she, as a third party,
was concerned and that her lover’s wife had to invoke the remedies afforded her by sections
15(9)(b) and 20 of the Matrimonial Property Act.135 The court rejected this argument and
held that there was no reason to limit the remedies of an aggrieved spouse to sections
15(9)(b) and 20. In Visser v Hull 136 the court approved of the reasoning in Bopape and set aside
a transaction between mala fide third parties and a spouse who had failed to obtain the requis-
137
ite spousal consent.
(b) Protection of the spouses as between themselves
(i) Statutory remedies
Statutory right to adjustment upon dissolution of the joint estate
Section 15(9)(b) of the Matrimonial Property Act governs the position if a spouse enters into
a transaction with a third party while he or she knows or ought reasonably to know that his or
her spouse will probably not consent to the transaction. If the joint estate suffers a loss as
a result of the transaction, an adjustment must be effected upon division of the joint estate
in favour of the spouse whose consent was not obtained.138 The same applies if the spouse
________________________

131 1995 (3) SA 314 (T), Heaton and Kruger Casebook on Family Law case [27].
132 [1997] 2 All SA 427 (SCA), 1997 (4) SA 66 (SCA).
133 S 15(6) of the Matrimonial Property Act allows the spouse independently to enter into certain transac-
tions for which spousal consent is normally required if those transactions take place in the ordinary
course of the spouse’s profession, trade or business: see above in this chapter.
134 [1999] 4 All SA 277 (T), 2000 (1) SA 383 (T), Heaton and Kruger Casebook on Family Law case [28]; see
also Markram v Scholtz [2000] 4 All SA 452 (NC). See further Vaal Reefs Exploration and Mining Company
Limited v Burger [1999] 4 All SA 253 (SCA), 1999 (4) SA 1161 (SCA) in which the court did not rely on
Amalgamated Bank of South Africa Bpk v Lydenburg Passasiersdienste but simply stated that a transaction which
occurs without the required spousal consent is void unless s 15(9)(a) applies.
135 On these and the other remedies of the spouses as between each other, see the discussion below in this
chapter.
136 2010 (1) SA 521 (WCC).
137 On possible mechanisms for recovering the assets that were alienated in Bopape and Visser, see Barratt (ed)
Persons and the Family 295–297; Sonnekus 2000 TSAR 577; Van Schalkwyk 2001 De Jure 147; Barratt 2011
Stell LR 277–279, 281–283.
138 For the formula for and an example of calculating the adjustment, see Heaton in Heaton (ed) Law of
Divorce and Dissolution of Life Partnerships 95. If the marriage ends in divorce, the adjustment will be
continued
78 South African Family Law

enters into the transaction while his or her power to deal with the joint estate has been
suspended.139
Dispensing with the other spouse’s consent
If the required spousal consent cannot be obtained for some reason or another and the court
is satisfied that a good reason exists for dispensing with the other spouse’s consent, it may
authorise the transaction in terms of section 16(1) of the Matrimonial Property Act.140 The
section also empowers the court to dispense with the consent of a spouse who unreasonably
withholds consent.
In Cloete v Cloete 141 the husband alleged that his wife’s refusal to consent to the exercising of
an option to purchase immovable property from her mother with a view to developing the
property was unreasonable. He sought an order in terms of section 16(1) dispensing with his
wife’s consent and authorising him to exercise the option on his own. On the facts, the court
found that section 16(1) was inapplicable, as the option had been granted to the spouses
jointly. Therefore, neither of them could exercise it individually with the consent of the
other; they had to exercise it jointly. In an obiter dictum the court dealt with the reasons for the
wife’s refusal to exercise the option, namely the breakdown of the marriage and the institu-
tion of divorce proceedings which resulted in the wife not wanting to be involved in a busi-
ness relationship with her husband; the husband’s seeking an order for forfeiture of benefits
against his wife in the divorce proceedings; the bad relationship between the husband and his
mother-in-law, which resulted in his mother-in-law’s not wanting to be involved in a contrac-
tual relationship with him; the fact that the transaction would impose obligations on the wife
without any guarantee that the venture would succeed; and the fact that the purpose which
the wife’s mother had sought to achieve by granting the option to the spouses (namely, con-
ferring benefits on her daughter as her son-in-law’s spouse) could no longer be achieved as a
result of the impending divorce. The court found that these reasons rendered the wife’s
refusal reasonable. An order in terms of section 16(1) would accordingly not have been
justified even if the section was applicable.
Suspension of a spouse’s powers in respect of the joint estate
In terms of section 16(2) of the Matrimonial Property Act, the High Court may suspend any
power a spouse has in respect of the joint estate for a definite or an indefinite period. The
court will order such suspension only if the prejudiced spouse applies for it and satisfies the
court that the order is necessary for the protection of his or her interests in the joint estate. If
a spouse contravenes the suspension, the consequences are the same as in the case of juristic
acts performed without the required consent.142
Immediate division of the joint estate
If one spouse’s conduct seriously prejudices or will probably seriously prejudice the other
spouse’s interests in the joint estate, the prejudiced spouse may apply to court in terms of sec-
tion 20 of the Matrimonial Property Act for the immediate division of the joint estate. The
applicant must convince the court of the following:
(1) His or her interests in the joint estate are being seriously prejudiced or will probably be
seriously prejudiced by the other spouse’s conduct or proposed conduct.
(2) No other person will be prejudiced by the order.143

________________________

claimed together with the divorce, unless the remedy in s 20 of the Matrimonial Property Act has already
been applied. S 20 is discussed below in this chapter.
139 On suspension of a spouse’s power to deal with the joint estate, see below in this chapter.
140 For purposes of s 16(1) “court” includes a judge in chambers and a Magistrate’s Court: s 1.
141 Case CA 52/2009, 10 Dec 2009 (ECGD) (unreported).
142 Those consequences are discussed above in this chapter.
143 S 20(1).
 Chapter 6: Variable consequences of a civil marriage - Marriage in community of property 79

The court may order that the joint estate be divided in equal shares or on such other basis as
it deems just. The court may further replace community of property with another matrimonial
property system subject to such conditions as it deems fit.144 In terms of an obiter dictum in Leeb
v Leeb 145 the court will determine the basis on which the joint estate is to be divided by taking
into account factors such as the duration of the marriage; the assets each spouse brought into
the marriage; each spouse’s debts at the commencement of the marriage; each spouse’s
contribution to the joint estate during the marriage; the prejudice one spouse suffered in
respect of assets of the joint estate as a result of the other spouse’s conduct; and antenuptial
debts that were settled from the joint estate during the subsistence of the marriage.
(ii) Common-law remedies
General
It was indicated above that the marital power afforded a husband wide powers to deal with
assets of the joint estate. This meant, inter alia, that he could alienate joint assets to the detri-
ment of his wife without consulting her.146 The common law, however, did afford the wife
some protection against her husband’s malice. Now that the marital power has been abol-
ished, the common-law remedies are available to both spouses.147 It is important to note that
the common-law remedies are based on fraud, that is, the intention to prejudice the other
spouse.148 Consequently, they are not available if one of the spouses merely enters into an
unwise transaction which prejudices the other spouse. The burden of proof on the prejudiced
spouse is therefore a very heavy one. Furthermore, if the prejudiced spouse consented to the
alienation, he or she cannot invoke the common-law remedies even if the other spouse’s
intention was to defraud him or her by way of the transaction.149
Interdict
The first of the common-law remedies which is based on the other spouse’s fraud is the inter-
dict. This remedy is available if one of the spouses intends to alienate an asset of the joint
estate with the intention of prejudicing the other spouse. In such event, the spouse who
stands to be prejudiced may apply for an interdict to prevent his or her spouse from proceed-
ing with the transaction.150 It must be borne in mind, however, that one of the requirements
for an interdict is that the party must not have a suitable alternative remedy. If the threatened
juristic act is one for which the Matrimonial Property Act requires spousal consent, the spouse
who approaches the court for an interdict would have to prove that his or her right to ad-
justment in terms of section 15(9)(b) of the Matrimonial Property Act does not offer a

________________________

144 S 20(2). Although the court is not obliged to change the matrimonial property system, a change will
almost always be necessary to ensure effective protection of the prejudiced spouse. If the court does not
change the matrimonial property system, it will have to separate the portion that is awarded to each
spouse from the joint estate otherwise the division of the joint estate will have no effect whatsoever.
145 [1999] 2 All SA 588 (N).
146 See eg Voet 23.2.54; Van der Keessel Praelectiones 1.5.22; Davis v Trustee of Minors Brisley (1901) 18 SC 407
417; Cullammah v Munean 1941 NPD 163; Estate Sayle v Commissioner for Inland Revenue 1945 AD 388; Ex
parte Van Kraayenburg; Ex parte Ahlers 1946 TPD 686; Mundy v Mundy 1946 WLD 280; Pickles v Pickles 1947
(3) SA 175 (W); Pretorius v Smith 1971 (4) SA 459 (T); Laws v Laws 1972 (1) SA 321 (W); Nel v Cockcroft
1972 (3) SA 592 (T); Govender v Chetty 1982 (3) SA 1078 (C).
147 Church and Church in Church (ed) LAWSA Marriage par 77; Hahlo, 5th edn, 251, 256; Skelton and
Carnelley (eds) Family Law 96; Visser and Potgieter 130. See also Bopape v Moloto [1999] 4 All SA 277 (T),
2000 (1) SA 383 (T) where the court held that the prejudiced spouse’s remedies are not limited to ss
15(9)(b) and 20 of the Matrimonial Property Act.
148 Pickles v Pickles 1947 (3) SA 175 (W); Pretorius v Pretorius 1948 (1) SA 250 (A); Pretorius v Smith 1971 (4) SA
459 (T); Govender v Chetty 1982 (3) SA 1078 (C).
149 Pretorius v Smith 1971 (4) SA 459 (T); Govender v Chetty 1982 (3) SA 1078 (C).
150 Mundy v Mundy 1946 WLD 280; Pickles v Pickles 1947 (3) SA 175 (W); Laws v Laws 1972 (1) SA 321 (W); Tel
Peda Investigation Bureau (Pty) Ltd v Laws 1972 (2) SA 1 (T).
80 South African Family Law

suitable alternative remedy,151 for example, because the joint estate would be completely
152
depleted if the threatened juristic act took place.
Actio Pauliana utilis
If one of the spouses has already alienated an asset of the joint estate in fraud of the other
spouse, the prejudiced spouse may recover the asset from the third party with the actio Pauli-
ana utilis.153 In Laws v Laws 154 Margo J required proof that the third party knew that the alien-
ation was in fraud of the other spouse’s rights when he or she entered into the transaction; in
other words, the third party must have been complicit in defrauding the other spouse. It is
submitted that this view is incorrect.155
It is unclear whether the actio Pauliana utilis may be invoked during the subsistence of the
marriage or, at any rate, while the joint estate remains undivided. The matter was left open in
Ex parte Van Kraayenburg; Ex parte Ahlers,156 but in Nel v Cockcroft 157 it was held, on authority of
Voet and Van der Keessel, that the action may only be instituted after dissolution of the
marriage. This is most unsatisfactory and the decision in Nel has been justly criticised.158 In an
obiter dictum in Reyneke v Reyneke 159 Jones J correctly pointed out that it is illogical to grant a
spouse the right to recover assets of the joint estate from a third party, but to delay the ability
to enforce that right until dissolution of the joint estate, because by that time the right may be
useless. In view of modern legal and social thinking on a spouse’s rights in the joint estate and
the criticism in Reyneke, it is hoped that the courts will in future depart from the decision in
Nel.160
Common-law right of recourse upon dissolution of the joint estate
Another common-law remedy which is based on fraudulent prejudice to a spouse is the right
of recourse upon dissolution of the joint estate. If one spouse has already alienated assets of
the joint estate in fraud of the other spouse and the asset cannot be recovered under the actio
Pauliana utilis, the prejudiced spouse has a right of recourse against the other spouse or his or
her estate upon dissolution of the marriage.161
Having the other spouse declared a prodigal
Finally, a spouse can be declared a prodigal with the result that all the powers he or she
enjoys in respect of the joint estate and any separate property he or she may have are taken
out of his or her hands.162 However, it is doubted whether our courts will in future resort to

________________________

151 Van Niekerk A Practical Guide to Patrimonial Litigation in Divorce Actions par 4.2.1.1.
152 On interdict applications in family law proceedings, see further Catto in Heaton (ed) Law of Divorce and
Dissolution of Life Partnerships 530–533.
153 Pickles v Pickles 1947 (3) SA 175 (W); Laws v Laws 1972 (1) SA 321 (W).
154 1972 (1) SA 321 (W).
155 See also Hahlo, 5th edn, 196; Van Niekerk (ed) A Practical Guide to Patrimonial Litigation in Divorce Actions
par 3.5.7; Van Wyk 1972 THRHR 262–263; but see Van der Vyver and Joubert 246. See also JA v DA 2014
(6) SA 233 (GJ) where Sutherland J stated obiter that an asset that has been fraudulently alienated to a bo-
na fide third party cannot be recovered. This view seems to have been based on Laws v Laws 1972 (1) SA
321 (W).
156 1946 TPD 686.
157 1972 (3) SA 592 (T), Heaton and Kruger Casebook on Family Law case [30].
158 Reyneke v Reyneke 1990 (3) SA 927 (E); Hahlo, 5th edn, 195 fn 45; Sonnekus 2000 TSAR 589.
159 1990 (3) SA 927 (E).
160 The fact that whatever is recovered from the third party will fall back into the joint estate is no obstacle to
the actio Pauliana utilis. On the contrary, this is precisely what the remedy should achieve because the
wrong done to the prejudiced spouse would thus be effectively “cancelled”. On the actio Pauliana utilis,
see further Barratt 2011 Stell LR 281–283.
161 Cullammah v Munean 1941 NPD 163; Ex parte Van Kraayenburg; Ex parte Ahlers 1946 TPD 686; Laws v Laws
1972 (1) SA 321 (W).
162 Yared v Yared 1952 (4) SA 182 (T).
 Chapter 6: Variable consequences of a civil marriage - Marriage in community of property 81

interdicting someone as a prodigal, for the limitations placed on interdicted prodigals most
probably unjustifiably infringe their constitutional rights to dignity and privacy.163

6.5.6 Capacity to litigate

(a) General
Section 17 of the Matrimonial Property Act regulates the capacity to litigate of spouses who
are married in community of property. As a point of departure, section 17(1) lays down that
one spouse may not institute or defend legal proceedings without the other spouse’s written
consent, unless the proceedings relate to any of the following:
(1) The spouse’s separate property.164
(2) The recovery of non-patrimonial damages for a delict committed against the spouse.165 It
should be noted that the exception is limited to a delict which was committed against the
spouse. If the spouse committed the delict, the ordinary rule regarding the need for
spousal consent to litigate applies.
(3) The spouse’s profession, trade or business.166
Non-fulfilment of the consent requirement in respect of litigation does not affect the validity
of the proceedings.167 Third parties are therefore protected fully. The sanction for not obtain-
ing spousal consent is that the court may make a costs order against the litigating spouse. If
such an order is made, the court may order that the costs be recovered from the separate
property of the litigating spouse. In so far as his or her separate property is insufficient, the
costs can be recovered from the joint estate. In the latter event, the court may order that an
adjustment must be effected in favour of the non-consenting spouse upon division of the joint
168
estate. The court exercises its discretion with due regard to the non-consenting spouse’s in-
terests in the joint estate and the reasons for the lack of consent.169
If a spouse unreasonably withholds consent to litigation, or if a spouse’s consent cannot be
obtained for another reason, the court may grant consent.170 If the protection of a spouse’s
interests in the joint estate demands this, the court may suspend the other spouse’s power to
consent to legal proceedings for a definite or an indefinite period.171
(b) Insolvency
Section 17(4) of the Matrimonial Property Act provides that an application for the sequestra-
tion of a joint estate must be made against both spouses and an application for the surrender
of a joint estate must be made by both spouses. However, an application for the sequestration
of a debtor’s estate will not be dismissed solely because the estate is a joint estate if the appli-
cant satisfies the court that, despite taking reasonable steps, he or she could not establish
whether the debtor is married in community of property or establish the name and address of

________________________

163 The right to dignity is enshrined in s 10 of the Constitution and the right to privacy in s 14. On prodig-
ality, and the unconstitutionality of the limitations placed on prodigals, see further Heaton Persons ch 10.
See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 111–112.
164 S 17(1)(a).
165 S 17(1)(b).
166 S 17(1)(c). Van Wyk 1985 De Rebus 24 submits that there is a need for additional exceptions such as litiga-
tion in respect of children from a previous marriage. Visser and Potgieter 131 submit that the common
law renders the other spouse’s consent unnecessary in such litigation and in matrimonial disputes.
167 S 17(2).
168 For the formula for and an example of calculating the adjustment, see Heaton in Heaton (ed) Law of
Divorce and Dissolution of Life Partnerships 95.
169 S 17(3).
170 S 16(1).
171 S 16(2).
82 South African Family Law

the debtor’s spouse. If a sequestration order is granted against only one of the spouses, the
order is valid and automatically relates to both spouses.172
(c) Suing for joint debts
Section 17(5) of the Matrimonial Property Act stipulates which spouse should be sued when a
debt is recoverable from the joint estate. The section expressly provides that it applies
“[w]here a debt is recoverable from a joint estate”. As the joint estate comes to an end when
the marriage is dissolved by death or divorce, section 17(5) cannot be invoked after the
dissolution of the marriage. After the dissolution of the marriage, the common law regulates
173
recovery of unpaid debts.
The general rule in respect of joint debts is that the suit can be brought either against
both spouses jointly, or against the spouse who incurred the debt. The spouse who did not
incur the debt cannot be held liable on his or her own unless the debt was incurred for
household necessaries, in which event the spouses are jointly and severally liable.174 Thus,
175
either of them can be sued for the full debt relating to household necessaries. If the debt
176
relates to the separate property of a spouse, this spouse must be sued.

________________________

172 ABSA Bank Ltd t/a Trust Bank v Goosen 1998 (2) SA 550 (W). However, the other spouse may approach the
court for an order setting aside the sequestration order if he or she believes that the court should not
have made the order on the facts before it.
173 But see Maharaj v Sanlam Life Insurance Ltd and Others [2011] 2 All SA 571 (KZD), 2011 (6) SA 17 (KZD)
where the court incorrectly applied s 17(5) after the spouses’ marriage had ended in divorce. For criti-
cism of the judgment in Maharaj, see further Heaton 2011 Annual Survey of South African Law 451–453.
174 On liability for household necessaries, see further ch 5 above.
175 In Maharaj v Sanlam Life Insurance Ltd and Others [2011] 2 All SA 571 (KZD), 2011 (6) SA 17 (KZD) the
court incorrectly held that a debt which is incurred in the course of a spouse’s earning an income for the
joint estate relates to “necessaries for the joint household” with the result that the spouses are jointly and
severally liable for the debt. The expression “necessaries for the joint household” refers to household ne-
cessaries, not income that is necessary to maintain the joint household, as the court held. See further
Heaton 2011 Annual Survey of South African Law 450–451.
176 See above in this chapter.
 7
THE VARIABLE CONSEQUENCES
OF A CIVIL MARRIAGE –
MARRIAGE OUT OF COMMUNITY OF PROPERTY

7.1 The antenuptial contract

7.1.1 The purpose of an antenuptial contract
Before they marry, the prospective spouses must decide whether they want their marriage to
be in or out of community of property, for they cannot freely change their matrimonial prop-
erty system postnuptially.1 As is explained in chapter 6 above, the primary matrimonial prop-
erty system is universal community of property. If the spouses do not wish to be married in
community of property, or if they want to deviate from the normal consequences of universal
community of property, for example, by excluding particular assets from the joint estate or
excluding one spouse’s liability for the other’s antenuptial debts, they have to enter into an
antenuptial contract.2 The primary purpose of an antenuptial contract thus is to deviate from
(some of) the common-law or statutory rules regarding the matrimonial property conse-
quences of marriage. Apart from dealing with the matrimonial property system, antenuptial
contracts often include marriage settlements (that is, donations between spouses). Sometimes
the spouses create a trust, enter into an agreement about succession, or govern their right of
recourse in respect of expenses for household necessaries in their antenuptial contract. The
contents of antenuptial contracts are discussed in more detail below in this chapter.
The term “antenuptial contract” can be used in a narrow and a wide sense. In the narrow
sense it refers to the formal contract that is executed before a notary and registered in the deeds
office in terms of the Deeds Registries Act 47 of 1937.3 In the wide sense it is an informal agree-
ment between the parties which binds only them. In Mathabathe v Mathabathe 4 Stegmann J stated
that in the wide sense an antenuptial contract is “[e]very seriously intended promise of mar-
riage, or contract of betrothal, or engagement to be married”. In other words, it includes every
kind of agreement intending spouses conclude before marriage with a view to bringing about
the marriage itself or regulating any aspect of it. Stegmann J could see no reason
why the expression “antenuptial contract” should not in an appropriate context be used in a still
broader sense to refer to a pre-marital agreement which does not deal with proprietary rights
expressly or tacitly and which leaves them to be dealt with by implication of law.5
This point of view was correctly rejected in Milbourn v Milbourn.6 In the latter case, Coetzee
DJP pointed out that even if a contract of engagement was an antenuptial contract, a view he
________________________

1 See ch 8 below on the ways in which the matrimonial property system can be changed postnuptially.
2 See ch 6 above on assets that are excluded from the joint estate in an antenuptial contract, and liability for
antenuptial debts.
3 See below in this chapter on the formal requirements for an antenuptial contract.
4 1987 (3) SA 45 (W) 51J.
5 52I.
6 1987 (3) SA 62 (W); see also Lagesse v Lagesse 1992 (1) SA 173 (D); Kruger 1992 THRHR 492; Neels 1992
TSAR 336; Vrancken 1993 TSAR 180.

83
84 South African Family Law

did not share, such a contract would have to contain more than the mere stipulation that the
parties would marry each other. It would also have to contain provisions regarding the spouses’
proprietary rights.7

7.1.2 The formalities for the creation of a valid antenuptial contract

(a) General
Our law has long held that an informal antenuptial contract is valid only inter partes (that is, as
between the parties).8 It is not valid as against third parties. Thus the marriage is considered
to be in community of property in so far as the spouses’ debtors and creditors are concerned.
This is still the position in our law, for section 86 of the Deeds Registries Act provides that
unless an antenuptial contract is registered in terms of section 87 of the Act, it is of no force
or effect as against anyone who is not a party to it.9 In terms of section 87, an antenuptial con-
tract which is executed in South Africa must be attested by a notary and registered in a deeds
registry within three months of its execution or within such extended period as the court may
on application allow.10 An antenuptial contract which is executed outside South Africa must
be attested by a notary or entered into in accordance with the law of the place of its execu-
tion. A foreign antenuptial contract has to be registered in a deeds registry in South Africa
within six months of its execution or within such extended period as the court may on appli-
cation allow.
(b) Postnuptial execution and registration of an antenuptial contract
If the spouses entered into an antenuptial contract prior to marriage, but failed to comply with
the formalities of notarial execution and registration, the High Court may be approached in
terms of section 88 of the Deeds Registries Act for permission to have the contract formally
executed and registered after the marriage. The application may be made by either of the
spouses or both of them, or even by a beneficiary under a will.11 Three requirements must be
met before the court will permit postnuptial execution and registration of the antenuptial
contract:12
(1) The parties must definitely have agreed on the terms of the contract before entering into
marriage.13
(2) The parties must give good reasons for their failure properly to execute and/or register
the contract before the marriage.14

________________________

7 65B. Both cases dealt with redistribution of assets in terms of s 7(3) of the Divorce Act 70 of 1979: see ch 12
below.
8 See eg Steytler v Dekkers (1872) 2 Roscoe 102; Aschen’s Executrix v Blythe (1886) 4 SC 136; Ex parte Spinazze
1983 (4) SA 751 (T), Heaton and Kruger Casebook on Family Law case [32]; Odendaal v Odendaal [2002] 2 All
SA 94 (W); Schmitz v Schmitz [2015] All SA 85 (KZD), Heaton and Kruger Casebook on Family Law case [34].
9 Ex parte Spinazze 1983 (4) SA 751 (T), confirmed on appeal: 1985 (3) SA 650 (A); Lagesse v Lagesse 1992 (1)
SA 173 (D); Honey v Honey 1992 (3) SA 609 (W). If an antenuptial contract could be concluded without any
formalities, third parties (eg creditors) could clearly be disadvantaged. Consequently it is only fair to require
that the existence of the agreement should be publicised if the spouses wish it to be valid against third par-
ties: Ex parte Kloosman 1947 (1) SA 342 (T). In South Africa such publicity is achieved through registration
in the deeds office.
10 See further Ex parte Moodley; Ex parte Iroabuchi 2004 (1) SA 109 (W); Ex parte Cheng; Ex parte Cheng; Ex parte
Yang 2004 (1) SA 118 (W).
11 In re Langston’s Estate 1932 NPD 191. See further Ex parte Moodley; Ex parte Iroabuchi 2004 (1) SA 109 (W); Ex
parte Cheng; Ex parte Cheng; Ex parte Yang 2004 (1) SA 118 (W).
12 See Hahlo, 5th edn, 266–272 for a comprehensive discussion of these requirements.
13 This requirement is expressly stated in s 88; see also Ex parte Chater 1942 OPD 106; Ex parte Winwood 1946
NPD 279; Ex parte Martin 1943 CPD 545; Ex parte Hersch 1946 TPD 548.
14 Ex parte Coovadia 1960 (2) SA 773 (W); Ex parte Motala 1961 (3) SA 459 (D).
 Chapter 7: Variable consequences of a civil marriage – Marriage out of community of property 85

(3) The application must be made within a reasonable time after it was discovered that the
agreement was not properly executed and/or registered.15
If the court authorises postnuptial execution and registration, the contract has the same
effect as a duly executed and registered antenuptial contract. The court may impose whatever
conditions it deems suitable in respect of the execution of the contract, and may specify the
period within which the executed contract must be registered in the deeds registry.16

7.1.3 Additional requirements which apply to the antenuptial contract of a

minor
A minor who enters into an antenuptial contract must personally sign the contract.17 As with
any contract in terms of which a minor incurs obligations, the minor must have the consent
of his or her guardian to enter into an antenuptial contract. Although section 18(3)(c)(i)
read with section 18(5) of the Children’s Act 38 of 2005 requires the consent of all the guard-
ians of a minor for the minor’s marriage, the Act is silent on the minor’s antenuptial contract.
Therefore, the general rule as set out in section 18(4) of the Children’s Act applies, namely
that any of the child’s guardians may independently exercise guardianship over the minor.
Thus, for example, the consent of either parent of a child born of married parents is suffi-
cient for the minor’s entering into an antenuptial contract. The same applies if both parents
of a child born of unmarried parents have guardianship in respect of the child.18 If sole guard-
ianship has been awarded to one of the parents, only the sole guardian needs to give con-
sent.19 If both parents are deceased, the minor’s legal guardian must consent. If consent to
the minor’s marriage must be obtained from the presiding officer of the Children’s Court,
the presiding officer must assist the minor in the execution of the antenuptial contract.20 If
the High Court grants consent to the marriage, it may order that the minor sign the antenup-
tial contract with the assistance of a court-appointed curator.21
It is submitted that it is not legally required that the person who assists the minor in enter-
ing into the antenuptial contract must indicate his or her consent by signing the contract.22
However, as a matter of practice, notaries refuse to execute, and registrars of deeds refuse to
register an antenuptial contract that has not been signed by the person who assists the minor.
Several authors also state that the person must sign the antenuptial contract. Some cite

________________________

15 Ex parte Shand 1925 CPD 217; Ex parte Karbe 1939 WLD 351; Ex parte Said 1943 WLD 223; Ex parte Kloosman
1947 (1) SA 342 (T); Ex parte Roche 1947 (3) SA 678 (D). The facts in Ex parte Sanders 2002 (5) SA 387 (C)
fell squarely within the ambit of s 88. However, the parties approached the court for permission to change
their matrimonial property system in terms of s 21(1) of the Matrimonial Property Act, and the court incor-
rectly granted the application. On s 21(1) and Ex parte Sanders, see further ch 8 below. On the differences
between applications in terms of s 21(1) of the Matrimonial Property Act and s 88 of the Deeds Registries
Act, see Ferreira and Jacobs 2003 THRHR 339.
16 The court usually provides that the existing rights of creditors are not prejudiced (Ex parte Van Rensburg
1947 (4) SA 435 (C)) and that the order must be published in the Government Gazette and a local newspaper
(Ex parte Kloosman 1947 (1) SA 342 (T)).
17 Ex parte Potgieter 1943 OPD 4.
18 See also Church and Church in Church (ed) LAWSA Marriage par 115; Heaton in Van Heerden et al (eds)
Boberg’s Law of Persons and the Family 752 fn 30; Visser and Potgieter 137 (but see 137 fn 42 where the au-
thors state that it is not clear whether the consent of one parent suffices). Visser 1996 De Jure 155 argues
that the requirement that both parents must consent to the minor’s marriage should be interpreted to in-
clude giving consent to the matrimonial property system resulting from the marriage. Kruger in Clark (ed)
Family Law Service par F24 and Williams Aug 2002 De Rebus 35 seem to share Visser’s view.
19 S 18(4) of the Children’s Act 38 of 2005.
20 S 25(2) of the Marriage Act 25 of 1961.
21 C v T 1965 (2) SA 239 (O).
22 See also Kruger in Clark (ed) Family Law Service par F24. The author adds, however, that “practically” the
minor and his or her parent or legal guardian will have to sign the antenuptial contract before a notary.
86 South African Family Law

section 87(1) of the Deeds Registries Act as authority,23 but section 87(1) does not deal with
this matter at all. Nor does our case law require the person’s signature.24
If a minor has the requisite consent to marry but does not have consent to enter into an
antenuptial contract, the antenuptial contract is void and cannot be ratified or registered
after the marriage has taken place.25
26
7.1.4 The contents of an antenuptial contract
(a) General
The parties may include any provision in their antenuptial contract which is not impossible,
contrary to good morals (contra bonos mores) or contrary to the law or the nature of marriage.27
Thus a provision to the effect that the parties need not be faithful to each other or live
together is void.28 So too is an agreement which is likely to encourage separation or divorce.
However, the mere fact that an agreement is made in contemplation of a possible future
separation or divorce does not mean that it is void, for “[i]t is the effect and not merely the
fact of the agreement which must be assessed”.29
(b) The matrimonial property system
As is indicated above, the primary purpose of an antenuptial contract is to regulate the
spouses’ matrimonial property system. Most antenuptial contracts exclude community of
property and replace it with some form of separation of property. Various possibilities exist in
this regard. Each of the three most common forms of marriage out of community of property
is discussed under a separate heading below in this chapter.
(c) A right of recourse in respect of household necessaries
Section 23 of the Matrimonial Property Act 88 of 1984 governs liability for household neces-
saries in marriages out of community of property. It provides that, as against third parties, the
spouses are jointly and severally liable for debts for household necessaries, irrespective of
which spouse originally incurred the debt.30 As between themselves, the spouses are obliged to
contribute to expenses for household necessaries on a pro rata basis (that is, proportionately)

________________________

23 Church and Church in Church (ed) LAWSA Marriage par 115; Hahlo, 5th edn, 264; Lee and Honoré
par 99. Williams Aug 2002 De Rebus 35 also states that signature is required but does not cite authority in
support of his view.
24 See Ex parte Bullard 1937 TPD 297; Ex parte Potgieter 1943 OPD 4; Ex parte Roos 1945 GWL 1; Ex parte Shein
1947 (1) SA 471 (W); Ex parte Dineen 1955 (4) SA 49 (O); Ex parte Makkink and Makkink 1957 (3) SA 161 (N);
Ex parte Blignaut 1963 (4) SA 36 (O). In Wille’s Principles 283, Ex parte Van Niekerk 1917 CPD 133 and Ex parte
Bullard are cited as authority for requiring the parent or guardian’s signature. In Bullard the court actually
held that there are no legal requirements as to the precise formalities for a father’s consent to his minor
child’s antenuptial contract (302), while Van Niekerk dealt with the propriety of an attorney’s acting for
both parties to an antenuptial contract, and not the issue of the guardian’s signature. For an analysis of the
relevant case law, see Heaton in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 752–753 fn 30.
25 Edelstein v Edelstein 1952 (3) SA 1 (A), Heaton and Kruger Casebook on Family Law case [31]; Ex parte Du Toit
1953 (4) SA 130 (O); Ex parte Davis 1957 (4) SA 594 (T). The rules set out above apply only if the minor has
obtained consent to marry but failed to obtain consent to enter into an antenuptial contract. If the minor
marries without the necessary consent, s 24 of the Matrimonial Property Act regulates the patrimonial con-
sequences of the marriage. On s 24 of the Matrimonial Property Act, see ch 3 above.
26 Prospective spouses often do not bargain as equals and antenuptial contracts often insulate the wealthier
spouse’s financial position. On the unequal bargaining positions of prospective spouses and the conse-
quences of the rigid enforcement of antenuptial contracts despite the parties’ unequal bargaining position,
see eg Glendon Transformation of Family Law 139–140; Boshoff 2001 SALJ 317; Bonthuys 2004 SALJ 879, esp
894–897; Heaton 2005 SAJHR 553–556; Barratt 2013 SALJ 695–698.
27 Voet 23.4.15, 23.4.16, 23.4.19, 23.4.20; Ex parte Wismer 1950 (2) SA 195 (C).
28 Van Oosten v Van Oosten 1923 CPD 409.
29 Stembridge v Stembridge [1998] 2 All SA 4 (D).
30 S 23(5).
 Chapter 7: Variable consequences of a civil marriage – Marriage out of community of property 87

according to their individual means.31 If one spouse contributes more, or has contributed
more than his or her pro rata share, he or she has a right of recourse against the other spouse
if the marriage was concluded before the coming into operation of the Matrimonial Property
Act.32 In marriages concluded after the coming into operation of the Act there is no automat-
ic right of recourse, but the spouses may agree that they will nevertheless have a right of
recourse against one another.33 Couples who want to marry out of community of property may
therefore want to include a right of recourse in respect of excess payments for household
necessaries in their antenuptial contract.34
(d) Succession
In their antenuptial contract the spouses may agree on the devolution of their estates after
their respective deaths. They may, for example, stipulate that the surviving spouse will be the
first-dying spouse’s sole heir or that upon the death of the first-dying spouse the estates of
both spouses will devolve on their children, with the surviving spouse acquiring a usufruct
over certain property. An agreement between living persons containing stipulations concern-
ing the devolution of their estates is called a pactum successorium. As a rule, pacta successoria are
not recognised. However, a pactum successorium in an antenuptial contract is recognised in our
law.
Although a pactum successorium in an antenuptial contract has the same scope and purpose
as a will, it is contractual in nature and therefore it can only be amended by a will which is
made jointly by the spouses. If the spouses do make a joint will, the surviving spouse still has
the choice of inheriting either in terms of the pactum successorium or the will.35
(e) Marriage settlements
A marriage settlement is a donation which one spouse makes to the other in terms of an ante-
nuptial contract. A marriage settlement may be subject to a time clause or condition. Thus a
husband may, for example, undertake to transfer a sum of money or an insurance policy to
his wife when their first child is born.36
A reversion clause is frequently included in respect of a marriage settlement. In a reversion
clause the donor stipulates an event upon which the donation will revert to him or her, for
example, if the beneficiary predeceases the donor.37 The clause is enforceable, provided that
it does not violate the institution of marriage or its sanctity. In Cumming v Cumming 38 the spous-
es’ antenuptial contract provided that the marriage settlements the husband made in favour
of his wife would revert to him should the spouses divorce. The marriage indeed ended in
divorce. The wife challenged the reversion clause, but the court upheld it. Le Roux J pointed
out that since a spouse is not obliged to make a marriage settlement one who does so may
limit the donation as he or she sees fit. The other spouse becomes bound by that limitation
upon accepting the marriage settlement. He held that the mere fact that a husband makes a
________________________

31 S 23(2). In marriages celebrated before the commencement of the Matrimonial Property Act, this duty is
deemed to have been in existence from the inception of the marriage.
32 S 23(3).
33 S 23(1) and (4).
34 The arrangement need not be contained in the antenuptial contract. Accordingly, the spouses may also
agree on a right of recourse during the subsistence of the marriage. If they do not reach such an agree-
ment, the spouse who contributes more than his or her compulsory pro rata share has no claim against the
other spouse. He or she would therefore have to ensure, by means of a maintenance order if need be, that
the other spouse makes his or her full contribution.
35 On the amendment of an antenuptial contract, see further below in this chapter.
36 By virtue of the normal rules of the law of contract, the clause must not be void for vagueness, as is the case
when eg the husband undertakes to give certain property to his wife at such time and in such quantities as
may seem expedient to him: Towert v Towert 1956 (1) SA 429 (W); Murray v Murray 1959 (3) SA 84 (W);
Kantor v Kantor 1962 (3) SA 207 (T).
37 Wilson v Wilson 1946 EDL 33.
38 1984 (4) SA 585 (T), Heaton and Kruger Casebook on Family Law case [33].
88 South African Family Law

marriage settlement in favour of his wife only for the duration of their marriage and stipulates
that it will revert to him upon divorce does not indicate an intention to interfere with the
marital relationship. He did add, however, that had the husband acted in a manner which was
calculated to break up the marriage so that he could recover his donation the wife “would
have her remedies at law”.39 This presumably means that in such an event the reversion clause
would not be enforced.
In principle, a marriage settlement becomes irrevocable when the marriage takes place.
However, because the prohibition on donations between spouses has been abolished,40 spouses
may freely agree to cancel or amend a marriage settlement. If they cannot reach agreement in
this regard, the donation specified in the antenuptial contract must be carried out unless the
court orders amendment of the marriage settlement.41
Before the coming into operation of the Matrimonial Property Act, marriage settlements
were common, as they were exempt from the prohibition on donations between spouses.
Because of the abolition of the prohibition, spousal donations need no longer be included in
an antenuptial contract. At present, the main advantage of including a donation in the ante-
nuptial contract is that such inclusion confers some protection on the donation in the case of
insolvency.42

7.1.5 Interpretation of an antenuptial contract

An antenuptial contract is interpreted in exactly the same way as any other contract.43 Spouses
do not have to use specific terms or phrases in the drafting of an antenuptial contract, as long
as their intention is clear from the wording which is used.44 In case of doubt it is accepted that
every legal consequence which is neither explicitly nor tacitly excluded is retained.45 In other
words, if there is any doubt, it is assumed that the parties intended the minimum departure
from the common law or statute.

7.1.6 Cancellation and amendment of an antenuptial contract

The parties may cancel or amend their antenuptial contract right up until the wedding. How-
ever, once the wedding has taken place the parties cannot, as a general rule, cancel or amend
the antenuptial contract.46 To determine whether a subsequent agreement between the
spouses has the effect of cancelling or amending the antenuptial contract the terms of the
antenuptial contract must be compared to the terms of the subsequent agreement. For
example, a subsequent agreement to create a societas universorum bonorum (that is, a universal
partnership relating to present and future assets, liabilities, profits and losses) is irreconcil-
able with an antenuptial contract that provides for complete separation of property, because
47
such a universal partnership in effect amounts to a marriage in community of property.
However, depending on the terms of the specific antenuptial contract, spouses who married
subject to complete separation of property may be able to enter into a societas universorum quae

________________________

39 591.
40 S 22 of the Matrimonial Property Act. See further ch 5 above.
41 On the amendment of antenuptial contracts, see further below in this chapter.
42 S 27 of the Insolvency Act 24 of 1936.
43 Voet 23.4.28, 23.4.71, 23.4.73; Cradock v Estate Cradock 1949 (3) SA 1120 (N); Towert v Towert 1956 (1) SA
429 (W). See also JG v MG 2012 (3) SA 12 (FB) where a clause that the parties could not give effect to with-
out the cooperation of a body that was not a party to the contract was interpreted as being analogous to a
clause in a contract of sale in terms of which the seller sold property of which he or she was not the owner.
See Williams Aug 2002 De Rebus 35 for a step-by-step guide on drafting antenuptial contracts.
44 Grobbelaar v Van der Vyver 1954 (1) SA 248 (A).
45 Edelstein v Edelstein 1952 (3) SA 1 (A).
46 Union Government (Minister of Finance) v Larkan 1916 AD 212; Honey v Honey 1992 (3) SA 609 (W).
47 JW v CW 2012 (2) SA 529 (NCK); EA v EC (09/25924) [2012] ZAGPJHC 219 (25 October 2012); RD v TD
2014 (4) SA 200 (GP), Heaton and Kruger Casebook on Family Law case [39]. On postnuptial changes to the
matrimonial property system, see further ch 8 below.
 Chapter 7: Variable consequences of a civil marriage – Marriage out of community of property 89

ex quaestu veniunt (that is, a universal partnership that is limited to the sharing of present and
48
future assets, liabilities, profits and losses acquired from commercial undertakings).
For a limited period after the coming into operation of the Matrimonial Property Act sec-
tion 21(2) of the Act permitted amendment of certain antenuptial contracts by way of a
registered notarial contract. Section 21(2) provided for a transitional period during which
spouses who married before the coming into operation of the Act with an antenuptial con-
tract excluding community of property and community of profit and loss could apply the
accrual system to their marriage without the intervention of the court, by merely executing
and registering a notarial contract to that effect. Initially this concession operated for a
period of two years from the commencement of the Act, but it was later extended by another
two years (that is, until 1 November 1988).49
Furthermore, the repeal of the prohibition on donations between spouses50 has resulted in
spouses being able to agree to replace a marriage settlement with another donation or to
revoke it completely.
The spouses can also, by means of a joint will, amend certain succession clauses contained
in their antenuptial contract. If they appoint each other mutually as heirs or legatees, or if
one appoints the other as heir or legatee, they may amend this pactum successorium by means
of a joint will,51 but then the surviving spouse has a choice between inheriting in terms of the
joint will or the antenuptial contract.52 If the spouses appoint a third party as heir or legatee
in their antenuptial contract and the third party is a party to the antenuptial contract, they
cannot revoke the third party’s benefit without his or her consent.53 If the third party is not a
party to the antenuptial contract but has already accepted the benefit, the spouses likewise
cannot revoke the succession clause without the third party’s consent.54 In all other cases, they
can revoke or amend the third party’s benefit by means of a joint will.55
An antenuptial contract can also be amended by the High Court if it does not properly
convey the terms of the parties’ actual agreement or true intention.56 In such event, the court
orders rectification of the antenuptial contract.

________________________

48 Fink v Fink 1945 WLD 226; Mühlmann v Mühlmann 1984 (3) SA 102 (A); RD v TD 2014 (4) SA 200 (GP). But
see Van Schalkwyk (2013) 10 LitNet Akademies (Regte) 11 November 2013, http://www.litnet.co.za/Article/
nahuwelikse-onderhandsebuitegeregtelike-verandering-van-die-huweliksgoederebedeling-stante (accessed
22 June 2015), who is of the view that if the antenuptial contract excludes not only community of property
but also community of profit and loss, the spouses may not enter into a societas universorum quae ex quaestu
veniunt because this type of partnership would defeat the exclusion of community of profit and loss. The
decision in RD v TD is preferred to Van Schalkwyk’s view as it is not only more logical, but also has a more
equitable outcome.
49 Matrimonial Property Amendment Act 91 of 1986; GN R2114 of 9 Oct 1986. In terms of ss 3 and 4 of the
Marriage and Matrimonial Property Law Amendment Act 3 of 1988, African persons who married before
the coming into operation of the Marriage and Matrimonial Property Law Amendment Act could also, un-
til 2 Dec 1990, cause the provisions of the Matrimonial Property Act to apply to their civil marriage by the
mere execution and registration of a notarial contract to that effect, despite the fact that these spouses did
not enter into an antenuptial contract. As is explained in ch 6 above, civil marriages African persons en-
tered into before the coming into operation of the Marriage and Matrimonial Property Law Amendment
Act were automatically out of community of property and community of profit and loss in terms of s 22(6)
of the Black Administration Act 38 of 1927.
50 S 22 of the Matrimonial Property Act, which is discussed in ch 5 above.
51 Union Government (Minister of Finance) v Larkan 1916 AD 212.
52 Ibid; Ex parte Executors Estate Everard 1938 TPD 190.
53 Ex parte Balsillie 1928 CPD 218.
54 Ibid.
55 Voet 23.4.63.
56 Ex parte Mouton 1929 TPD 406; Ex parte Joannou 1942 TPD 193; Ex parte Kilroe 1945 GWL 27; Ex parte Dunn
1989 (2) SA 429 (NC). In the latter case, the parties had agreed to make the accrual system applicable to
their marriage. Owing to a bona fide error, the antenuptial contract excluded the accrual system. The
spouses successfully applied for rectification of the contract.
90 South African Family Law

The court may further order an amendment to or cancellation of an antenuptial contract if

there are sound reasons for doing so. The Free State Division of the High Court has held that
it has this power only in respect of the amendment of a trust created in an antenuptial con-
tract.57 The other divisions of the High Court exercise this power mainly in respect of replac-
ing or cancelling a marriage settlement or when the terms of a trust must be amended.58
However, in Ex parte Coetzee 59 the then Witwatersrand Local Division of the High Court (now
the Gauteng Local Division of the High Court, Johannesburg) cancelled an antenuptial
contract purely because its existence threatened the spouses’ happiness.

7.1.7 Termination of an antenuptial contract

An antenuptial contract does not lapse on dissolution of the spouses’ marriage.60 Any pro-
visions which have not yet been implemented, such as marriage settlements, must still be
carried out. The antenuptial contract comes to an end only when all the contractual obliga-
tions have been fulfilled.
The remainder of this chapter focuses on the three variations of marriage out of community
of property which are most commonly encountered in antenuptial contracts.

7.2 Marriage out of community of property and community of

profit and loss without the accrual system
The matrimonial property system which is out of community of property and community of
profit and loss without the accrual system is called “complete separation of property”. Most
couples who entered into an antenuptial contract before the commencement of the Matri-
monial Property Act were married subject to complete separation of property and without the
marital power.61 Consequently, antenuptial contracts with these provisions were referred to as
standard-form antenuptial contracts.62 Since the coming into operation of the Matrimonial
Property Act, a marriage which is entered into with an antenuptial contract that excludes
community of property and community of profit and loss is automatically subject to the
accrual system.63 If the spouses do not wish the accrual system to apply to their marriage and
want to be married subject to complete separation of property, they have to stipulate this in
their antenuptial contract. The antenuptial contract which leaves the accrual system intact has
therefore become the new standard-form antenuptial contract.
The effect of complete separation of property is that the parties remain in the same finan-
cial position as they were before the marriage. Each spouse retains the estate he or she had
before the marriage as well as everything he or she acquires during the marriage. Each spouse

________________________

57 Ex parte Nathan Woolf 1944 OPD 266; Ex parte Venter 1948 (2) SA 175 (O).
58 Ex parte Louw (1907) 26 SC 350; Ex parte Tasker (1909) 26 SC 587; Ex parte Orchison 1952 (3) SA 66 (T). See
Hahlo, 5th edn, 274 for a comprehensive discussion.
59 1984 (2) SA 363 (W). In this case, the parties had concluded an antenuptial contract from which communi-
ty of property was excluded at the insistence of the bride’s father, while they foresaw that their marriage
would be unhappy unless they were married in community of property.
60 If the marriage is dissolved by divorce, however, the court may order forfeiture of benefits against one of
the spouses, which may result in the spouse’s forfeiting benefits conferred in the antenuptial contract: see
ch 12
below.
61 African persons who entered into a civil marriage before the coming into operation of the Marriage and
Matrimonial Property Law Amendment Act were automatically married out of community of property and
profit and loss: see fn 49 above.
62 A survey conducted by the South African Law Commission at the deeds office in Pretoria revealed that less
than 3% of all antenuptial contracts concluded prior to the coming into operation of the Act deviated from
the old standard-form contract: Report Pertaining to Matrimonial Property Law with Special Reference to the Matri-
monial Affairs Act, 1953, the Status of the Married Woman, and the Law of Succession in so far as it Affects the Spouses
par 12.1.1.
63 The accrual system is discussed below in this chapter.
 Chapter 7: Variable consequences of a civil marriage – Marriage out of community of property 91

has full capacity to act and can enter into contracts without the other’s assistance. The spous-
es can also freely enter into contracts with each other. However, they cannot conclude con-
tracts that cancel or substantially amend their matrimonial property system, such as entering
into a universal partnership to share all their current and future assets, debts, losses and
64
profits. The spouses are not liable for each other’s contractual or delictual debts, as each
spouse binds only himself or herself.65 They can therefore sue each other in contract or
delict.66 The spouses have full capacity to litigate and can independently institute or defend
legal proceedings.

7.3 Marriage out of community of property with retention of

community of profit and loss
In a marriage out of community of property with retention of community of profit and loss
each spouse retains the assets he or she owns at the time of the wedding and remains sep-
arately liable for his or her antenuptial debts. Donations, bequests and inheritances that are
received during the subsistence of the marriage likewise remain the separate property of the
spouse who receives them. In this regard the position is exactly the same as in a marriage that
is subject to complete separation of property. However, because community of profit and loss
is retained, all profit and loss arising during the marriage become joint profit and loss and
constitute a joint estate of which each spouse owns an undivided half-share. This variation of
marriage out of community of property is rare.
The main differences between marriage out of community of property with retention of
community of profit and loss and the accrual system are that in the case of community of
profit and loss the spouses share postnuptial profits and losses, and this sharing occurs during
the subsistence of the marriage. Under the accrual system, only profits are shared, and the
sharing takes place only upon dissolution of the marriage.

7.4 The accrual system

7.4.1 Introduction
Complete separation of property is often very prejudicial to the spouse who is not the primary
breadwinner. If the spouse who has little or no income and few or no assets is unable to
accumulate his or her own estate, he or she may find himself or herself in a most unfavourable
financial position upon dissolution of the marriage.67 The accrual system is an attempt on the
part of the legislator to address this situation. According to the South African Law Commis-
sion “[t]he fundamental idea is that one spouse contributes financially and otherwise to the
growth of the other spouse’s estate and should therefore be entitled to share in that spouse’s
estate on the dissolution of the marriage”.68 The accrual system is therefore founded on the
notion that, upon the dissolution of a marriage out of community of property and community

________________________

64 See above in this chapter and ch 8 below.

65 This rule is subject to the exception in s 23 of the Matrimonial Property Act regarding household neces-
saries: see above in this chapter.
66 In Rohloff v Ocean Accident and Guarantee Corp Ltd 1960 (2) SA 291 (A) the then Appellate Division (now the
Supreme Court of Appeal) confirmed this position with regard to claims ex lege Aquilia. Whether spouses
married out of community of property may institute the actio iniuriarum against each other was answered in
the negative in C v C 1958 (3) SA 574 (SR), but it is doubted whether this decision will be followed.
67 See eg the facts in Edelstein v Edelstein 1952 (3) SA 1 (A). For a comprehensive discussion of the disad-
vantages of the old standard-form antenuptial contract, see South African Law Commission Report Pertaining
to Matrimonial Property Law with Special Reference to the Matrimonial Affairs Act, 1953, the Status of the Married
Woman, and the Law of Succession in so far as it Affects the Spouses par 12.1.
68 South African Law Commission Report Pertaining to Matrimonial Property Law with Special Reference to the Matri-
monial Affairs Act, 1953, the Status of the Married Woman, and the Law of Succession in so far as it Affects the Spouses
par 17.1.
92 South African Family Law

of profit and loss, both spouses must share in the growth their estates have shown, without
there having been a joint estate during the subsistence of the marriage.
7.4.2 Marriages to which the accrual system applies
Section 2 of the Matrimonial Property Act provides that the statutory accrual system applies to
all marriages that are concluded out of community of property and community of profit and
loss after the coming into operation of the Act (that is, as from 1 November 1984), except in
so far as the system is expressly excluded in the couple’s antenuptial contract.69 Thus, parties
who nowadays want complete separation of property to operate in their marriage must ex-
pressly exclude community of property and community of profit and loss as well as the accrual
system in their antenuptial contract.70
The accrual system does not automatically apply to marriages out of community of property
and community of profit and loss which were concluded before 1 November 1984.71 As indi-
cated above, white, coloured and Asian persons who were married out of community of prop-
erty by means of an antenuptial contract before the commencement of the Matrimonial Prop-
erty Act were granted a four-year period within which they could apply the accrual system to
their marriage by means of a notarial contract. African persons were granted a two-year
period after the commencement of the Marriage and Matrimonial Property Law Amendment
Act 3 of 1988 to introduce the accrual system.72 In the notarial contract, the spouses had to
indicate whether the accrual system was to apply from the date of the contract or from the
date on which the marriage was concluded; in other words, retroactively.73

7.4.3 When and how accrual sharing takes place

(a) General
The accrual system can be described as a type of postponed community of profit.74 During its
subsistence, the marriage is out of community of property and community of profit and loss.
Each spouse retains and controls his or her own estate, but on dissolution of the marriage the
spouses share in the accrual or growth their estates have shown during the subsistence of the
marriage.
(b) The accrual claim
Section 3(1) of the Matrimonial Property Act provides that accrual sharing is brought about
by giving the spouse whose estate shows the smaller accrual or no accrual, “a claim against the

________________________

69 S 2 applies to formal and informal antenuptial contracts: Odendaal v Odendaal [2002] 2 All SA 94 (W); see
also Lagesse v Lagesse 1992 (1) SA 173 (D); Honey v Honey 1992 (3) SA 609 (W). In the case of an informal
antenuptial contract, the party who alleges that the accrual system was excluded must prove this: Odendaal v
Odendaal. From Odendaal it appears that in the case of an informal antenuptial contract the exclusion need
not occur in so many words, although there must be no doubt that the parties agreed that they did not
want the accrual system to apply. See further Van Schalkwyk 2002 De Jure 368. As s 2 states that the accrual
system applies “except in so far as that system is expressly excluded by the antenuptial contract” (emphasis add-
ed), it is clear that the accrual system may be partially excluded and may therefore be varied to the extent
of the exclusion. Thus, the spouses may modify the statutory accrual system, eg by excluding the 50:50 ac-
crual sharing the Act provides for and replacing it with a 40:60 division: Heaton in Heaton (ed) Law of Di-
vorce and Dissolution of Life Partnerships 63.
70 Costa May 2003 De Rebus 31 submits that the legislator should abolish the option of excluding the accrual
system because such exclusion violates the “partnership spirit of marriage”.
71 S 2.
72 See fn 49 above.
73 S 21(2)(b). Depending on their decision whether or not the accrual system should apply retroactively, the
spouses had to declare the net values of their estates as at the beginning of the marriage or as at the time of
the execution of the contract. This declaration could be contained in a separate statement: s 21(2)(c).
74 See eg Hahlo, 5th edn, 304; Sinclair 33; De Jong and Pintens 2015 TSAR 557. Church and Church in
Church (ed) LAWSA Marriage par 102 state, however, that referring to the accrual system as a deferred
community of gains “may create the impression that more is shared than the statutory formula actually pro-
vides for”; see also Van Wyk 1985 De Rebus 59.
 Chapter 7: Variable consequences of a civil marriage – Marriage out of community of property 93

other spouse or his estate for an amount equal to half of the difference between the accrual
of the respective estates of the spouses”, that is:
Accrual claim = ½ × (larger accrual – smaller accrual).
The accrual claim is determined on a factual and mathematical basis and is not a matter of
75 76
discretion. The plaintiff bears the onus of establishing the value of the accrual claim.
(c) The difference between the accrual claim and the right to accrual sharing
Section 3(2) of the Act expressly provides that the claim arises upon dissolution of the mar-
riage, except when the protective measure contained in section 8 of the Act is applied.77
During the marriage, the accrual claim is not an asset in the estate of the ultimate recipient.
Section 3(2) further provides that during the marriage “the right of a spouse to share . . . in
the accrual of the estate of the other spouse is . . . not transferable or liable to attachment,
and does not form part of the insolvent estate of a spouse”. It is important to note that section
3(2) refers to the claim one spouse has against the other for half the difference between the
accrual in the respective estates, and the right of a spouse to share in the accrual of the other
spouse’s estate. The claim differs from the right. Section 3(2) makes it clear that the claim
arises upon dissolution of the marriage. However, in respect of the right, section 3(2) refers
to the position during the marriage. The implication is that the right to share in the other
spouse’s accrual has a separate existence from the claim, and that the right exists during the
subsistence of the marriage.78 That the right exists during the subsistence of the marriage also
appears from section 8(1) of the Act, which protects a spouse’s “right to share in the accrual
of the estate of the other spouse”. If there were no right during the subsistence of the mar-
riage, section 8 would be meaningless.
In Reeder v Softline 79 the court recognised the difference between the claim and the right. It
held that, pending the dissolution of the marriage (or an order in terms of section 8), one
spouse merely has a contingent right to the accrual in the other spouse’s estate. The right
becomes vested only when the marriage is dissolved and if there is indeed an accrual claim.
(d) The difference between accrual sharing and sharing of assets
It is important to note that the accrual system does not give the spouses rights in respect of
80
each other’s property or entitle the spouse whose estate shows the smaller or no accrual to a
transfer of assets by the other spouse. Section 4(1)(a) of the Act refers to the accrual as “the
amount by which the net value” of a spouse’s estate at the dissolution of the marriage exceeds
the “net value” at the commencement of the marriage,81 and section 3(1) refers to the accrual
claim as “an amount equal to half of the difference between the accrual of the respective
estates of the spouses” (emphasis added). (The net value is the value after all outstanding
debts have been paid, and includes all amounts owed to the estate.) In Buffalo City Municipality
82
v Smith Kroon J emphasised the difference between “[t]he reference to the … amount in
contradistinction to a reference to an asset” (emphasis in the original). This difference makes
it clear that the accrual and accrual claim relate to monetary amounts; they do not relate to
assets nor do they entitle the spouse whose estate shows the smaller or no accrual to claim a
transfer of assets of the other spouse.83 Of course, spouses who are getting divorced can agree
________________________

75 MM v JM 2014 (4) SA 384 (KZP); RP v DP 2014 (6) SA 243 (ECP).

76 MGB v DEB [2013] 4 All SA 99 (KZD) (also reported as MB v DB 2013 (6) SA 86 (KZD)).
77 On s 8, see below in this chapter.
78 But see Sonnekus in Clark (ed) Family Law Service par B9, Van Niekerk A Practical Guide to Patrimonial
Litigation in Divorce Actions par 3.4.2, and Visser and Potgieter 147 who equate the right and the claim and
state that the right arises upon dissolution of the marriage. See further Ferreira 2002 THRHR 287.
79 [2000] 4 All SA 105 (W), 2001 (2) SA 844 (W); see also RS v MS 2014 (2) SA 511 (GJ).
80 Reeder v Softline [2000] 4 All SA 105 (W), 2001 (2) SA 844 (W).
81 The calculation of the accrual is discussed in more depth below in this chapter.
82 [2009] ZAECGHC 81, 23 November 2009.
83 See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 66; De Jong and Pintens
2015 TSAR 558.
94 South African Family Law

that the accrual claim will be satisfied by way of a transfer of assets, but this does not change
the fact that, in terms of the Act, the accrual claim is for an amount of money.
Because the accrual system merely confers a contingent right to the accrual in the other
spouse’s estate during the marriage and neither spouse has rights in respect of each other’s
property, neither spouse can obtain an order directing that certain assets of the other spouse
84
be placed in trust pending the outcome of divorce proceedings between the spouses.

7.4.4 Calculating the accrual

(a) General
As is pointed out above, section 4(1)(a) of the Matrimonial Property Act provides that the
accrual of a spouse’s estate is the amount by which the net value of his or her estate at the dis-
85
solution of the marriage exceeds the net value at the commencement of the marriage.
Sections 4 and 5 of the Act prescribe that certain assets are excluded from the accrual. To
calculate the accrual, one therefore has to deduct the net commencement value of the estate
as well as the value of the assets which do not form part of the estate’s accrual, from the net
end value of the estate. In other words:
Accrual = Net end value – adapted net commencement value – assets which do not
form part of the accrual
The commencement value of the estate and the assets which do not form part of the accrual
are discussed under separate headings below.
(b) The commencement value (or the initial value)
The Matrimonial Property Act prescribes a number of methods for proving the commence-
ment or initial value of an estate:
(1) A spouse may declare the net commencement value of his or her estate in the spouses’
antenuptial contract. If this is not done, the commencement value may be declared in a
separate statement either before or within six months of the wedding. This statement
must be signed by the other spouse, attested by a notary, and filed together with a copy
of the parties’ antenuptial contract in the protocol of the notary before whom the ante-
nuptial contract was executed.86 Such a statement or antenuptial contract, or a certified
copy, is prima facie proof of the net commencement value of the estate.87
(2) If the commencement value is not declared in either the antenuptial contract or a sep-
arate statement, it is deemed to be nil unless the opposite is proved.88
(3) The net commencement value of a spouse’s estate is also deemed to be nil if the spouse’s
liabilities exceed his or her assets at the commencement of the marriage.89
________________________

84 Reeder v Softline [2000] 4 All SA 105 (W), 2001 (2) SA 844 (W). See also RS v MS 2014 (2) SA 511 (GJ).
85 On the uncertainty as to whether the net value of a spouse’s estate includes trust assets or their value, see
ch 12 below.
86 S 6(1). In Mathabathe v Mathabathe 1987 (3) SA 45 (W) Stegmann J stated in an obiter dictum that s 6 restricts
the term “antenuptial contract” to a notarially executed antenuptial contract, ie one which is not just infor-
mally concluded by the parties. He further indicated that this interpretation applies to the whole of ch I of
the Matrimonial Property Act, which governs the accrual system. In Odendaal v Odendaal [2002] 2 All SA 94
(W) Goldstein J differed from Stegmann J, at least in so far as s 2 of the Act is concerned.
87 S 6(3). In Olivier v Olivier 1998 (1) SA 550 (D) Combrinck J held that parties who declare the commence-
ment value of their estates in their antenuptial contract are bound by that declaration. For them, the de-
clared value is conclusive proof. It is only in respect of third parties that the declared value is merely prima
facie proof. However, in Thomas v Thomas [1999] 3 All SA 550 (D) the court held that the declared net com-
mencement value is merely prima facie proof and that interested parties (who obviously include the spous-
es) may prove the real commencement value. It is submitted that the latter decision is correct. The wording
of the section seems clear enough in this respect. See also Heaton in Heaton (ed) Law of Divorce and Dissolu-
tion of Life Partnerships 64 fn 36; Sonnekus 2010 TSAR 219–221; but see Van Schalkwyk 1998 De Jure 185.
88 S 6(4)(b).
89 S 6(4)(a).
 Chapter 7: Variable consequences of a civil marriage – Marriage out of community of property 95

When the accrual is calculated, the net commencement value of each spouse’s estate has to
be determined with due allowance for the fluctuating value of money. The weighted average
of the consumer price index (commonly known as the CPI) as published from time to time in
the Government Gazette is prima facie proof of any change in the value of money.90 Thus, the net
commencement value of a spouse’s estate is adapted in accordance with the weighted average
of the CPI.
The number by which the commencement value must be multiplied to get the adapted
commencement value is calculated as follows: CPI value for the month in which the marriage
is dissolved ÷ CPI value for the month of the wedding.
Consider the following example: Mr and Mrs X married in May 1987 and divorced in Feb-
ruary 2014. Mr X had no assets at the time of the wedding, while the commencement value of
Mrs X’s estate was R10 000. According to the historical CPI table the following are the rele-
vant index percentages:
May 1987: 14
February 2014: 107,3
107,3 ÷ 14 = 7,6642857
Therefore, the commencement value is multiplied by 7,6642857: R10 000 × 7,6642857 =
R76 642,86. Thus, the adapted commencement value of Mrs X’s estate is R76 642,86.
(c) Assets which do not form part of the accrual
In terms of the Matrimonial Property Act, the following assets do not form part of the accrual:91
(1) Any non-patrimonial damages a spouse receives during the marriage.92 As the section of
the Act that excludes non-patrimonial damages is silent on the exclusion of proceeds or
replacement assets, it is presumably only the amount of the damages that is excluded.93

________________________

90 S 4(1)(b)(iii). The CPI is published in the Government Gazette every month, but it is easier to use the consol-
idated table published by the Central Statistical Service on its website at www.statssa.gov.za. It contains an
index percentage for every month since Jan 1960. A historical table is available at http://
www.statssa.gov.za/publications/P0141/CPIHistory.pdf. Seeing that the CPI is not a reliable standard by
which to determine the change in the value of all assets, the spouses may select another criterion (eg mar-
ket value) in their antenuptial contract, or stipulate that the fluctuation in the value of money will not be
taken into consideration in respect of certain assets, or will not be taken into consideration at all. See par
17.6.2 of the Report Pertaining to Matrimonial Property Law with Special Reference to the Matrimonial Affairs Act,
1953, the Status of the Married Woman, and the Law of Succession in so far as it Affects the Spouses for the South
African Law Commission’s reasons for recommending the CPI as the criterion for adapting the com-
mencement value.
91 Prizes a spouse wins in a competition or lottery are not expressly excluded from the accrual. Referring to
German law, Sonnekus 2004 TSAR 365 submits that such assets ought usually also to be excluded from the
accrual. See also Sonnekus in Clark (ed) Family Law Service par B14; De Jong and Pintens 2015 TSAR 563.
On whether the proceeds or surrender value of a life insurance policy are to be taken into account for pur-
poses of calculating the accrual if the marriage is dissolved by death, see Herbst March 2004 De Rebus 28;
Muller 2006 THRHR 269–270.
92 S 4(1)(b)(i).
93 Unlike some of the other sections which deal with assets falling outside the accrual, s 4(1)(b)(i) makes no
mention of assets that replace non-patrimonial damages (eg assets bought with the amount) or are ac-
quired by reason of ownership of the non-patrimonial damages (ie, fruits, such as interest). Therefore, in
accordance with the maxim inclusio unius est exclusio alterius, the value of replacement assets and fruits are
not deducted when calculating the accrual: Church and Church in Church (ed) LAWSA Marriage par 108;
Sinclair 35 fn 132. See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 82. Fur-
thermore, no provision is made for adjustment of non-patrimonial damages in accordance with the CPI or
any other mechanism. Thus only the original amount is deducted: Church and Church in Church (ed)
LAWSA Marriage par 108; Sinclair 35 fn 132. A provision in respect of replacement assets and/or fruits
and/or indexation of the damages can naturally be included in the spouses’ antenuptial contract. De Jong
and Pintens 2015 TSAR 563 recommend that the Act should provide for a uniform rule regarding replace-
ment assets.
96 South African Family Law

(2) Assets the spouses exclude in their antenuptial contract. The Act stipulates that the pro-
ceeds of such excluded assets, and assets which replace such excluded assets or are ac-
quired with their proceeds, are also excluded.94 The Supreme Court of Appeal has held,
correctly, that if a specific asset is excluded in the spouses’ antenuptial contract, the val-
ue of the asset is irrelevant in the determination of the accrual; in other words, the asset
is ignored for purposes of calculating the accrual and therefore does not form part
95
of either the net commencement or the net end value of the spouse’s estate.
(3) An inheritance, legacy or donation one of the spouses receives from a third party. The
Act stipulates that the proceeds of inheritances, legacies and donations, and assets which
replace, or are acquired with the proceeds of such assets are also excluded.96 An inherit-
ance, legacy or donation does form part of the accrual, however, if the testator or donor
stipulates this or if the parties include a clause to this effect in their antenuptial con-
tract.97
(4) Donations inter vivos (that is, donations between living persons) between the spouses.98
Since the donor would usually already have parted with the donated asset, the value of
the asset will no longer be part of his or her net estate on divorce. For this reason, it is
logical that a further exclusion of the value of the donated asset in terms of section 5(2)
should not take place when the accrual in the donor’s estate is determined. If the dona-
tion has not yet been effected, the debt in terms of the contract of donation must be de-
ducted in determining the net value of the donor’s estate. In these circumstances, too, it
is logical that a further exclusion of the value of the donated asset in terms of sec-
tion 5(2) should not take place when the accrual in the donor’s estate is determined. As
the donation or the right to claim the donation (in the case of an uneffected donation)
will be an asset in the estate of the donee, its value must be added in determining the net
________________________

94 S 4(1)(b)(ii). Like s 4(1)(b)(i), s 4(1)(b)(ii) is silent on indexation of the excluded asset. If the asset (or sub-
stitute or fruits) is something other than money, indexation is probably unnecessary because s 4(1)(b)(ii)
provides that the entire asset “is not taken into account as part of that estate”. Ie, it is as if the asset, includ-
ing increases and decreases in its value (and fruits), does not form part of the spouse’s estate at all. There-
fore, if the spouses exclude eg the matrimonial home owned by the wife at the date of marriage in their
antenuptial contract, the value of improvements and alterations also falls outside the accrual of the wife’s
estate even if the husband paid for them. The position is different if the spouses do not exclude the matri-
monial home but merely declare its value to be (part of) the commencement value of the wife’s estate. In
the latter case, it is only the value of the home as adapted in accordance with the CPI that is deducted. In
this event, the value of the improvements and alterations apparently forms part of the accrual. Because the
section does not expressly mention indexation, it seems that, if the excluded asset (or its substitute or
fruits) is a sum of money, only the original amount is excluded. Spouses would therefore be well advised to
include an express provision on indexation in their antenuptial contract. Another issue is whether an asset
can be said to have been acquired by virtue of the possession or former possession of the excluded asset if
its value exceeds that of the asset which was originally excluded in the antenuptial contract. The Act pro-
vides no guidance on this matter. De Jong and Pintens 2015 TSAR 563 recommend that the Act should
provide for indexation of all excluded assets, especially where the assets consist of money. They further
recommend that intermingling of one spouse’s excluded assets and the other spouse’s non-excluded assets
(eg because the latter spouse funded improvements or alterations to an excluded asset) should be regu-
lated by the Act: 564.
95 Bath v Bath [2014] JOL 31724 (SCA).
96 S 5(1). See the preceding fn on the problems in respect of indexation and the issue of acquiring an asset by
virtue of the possession or former possession of the excluded asset.
97 S 5(1). It is unclear whether the spouses may validly include a term in their antenuptial contract which
overrides the wishes of the testator or donor. Sinclair 35–36 fn 133 contends that they may do so. However,
the courts may well be hesitant to interpret the Act in a way that allows spouses to dictate the conditions
upon which a testator may bequeath a benefit to one of them, as this may be found to infringe freedom of
testation. See also Church and Church in Church (ed) LAWSA Marriage par 108 and Sonnekus in Clark
(ed) Family Law Service par B14 who submit that the wishes of the testator or donor will prevail. It should be
borne in mind that even if the latter interpretation were to be preferred, the spouses could still frustrate
the wishes of the testator or donor once the inheritance, legacy or donation has been received, for the
beneficiary could simply donate it to his or her spouse.
98 S 5(2).
 Chapter 7: Variable consequences of a civil marriage – Marriage out of community of property 97

value of the donee’s estate. The value of the donation will therefore be part of the accrual
of the donor’s estate. Consequently, it should be clear that, regardless of whether or not
the donation has already been effected, the exclusion in section 5(2) applies only to the
accrual of the donee’s estate. As section 5(2) is silent on the exclusion of proceeds and
replacement assets, it is presumably only the donation that is excluded.99
In the event of a dispute, the spouse who alleges that certain assets are excluded from the
accrual bears the onus of indicating which assets are to be excluded and why they are to be
100
excluded.
(d) The date on which the value of a spouse’s estate is to be calculated for purposes of
accrual sharing
If a marriage that is subject to the accrual system is dissolved by death, the accrual of the
deceased spouse’s estate is determined before effect is given to any inheritances or donations
mortis causa (that is, donations which take effect upon the donor’s death).101 Accrual sharing
thus takes place before the deceased spouse’s estate is distributed in terms of the rules of the
102
law of succession. The value of each spouse’s estate at the date of the deceased spouse’s
death is used to determine the accrual in each estate.
If the marriage is dissolved by divorce, the position is less clear-cut. The issue of the date
that is to be used for purposes of determining the value of each spouse’s estate if the marriage
is dissolved by divorce has been the subject of conflicting case law and much academic de-
103
bate. In Le Roux v Le Roux, the court held that a proper interpretation of section 3(1) of the
Matrimonial Property Act entails that one spouse may not proceed with a claim for account-
ing of the value of the other spouse’s estate before divorce, because the section expressly
states that the accrual claim arises “[a]t the dissolution” of the marriage. As the plaintiff does
not have an acquired and complete cause of action to claim payment until the divorce order
has been granted, two distinct actions are required: the divorce action and an action for an
104
order relating to the accrual claim.
105
In JA v DA the court arrived at a similar finding. It, too, held that the wording of section
3(1) dictates that the value of the accrual in the spouses’ estates and of the accrual claim
cannot be determined before the dissolution of the marriage. However, it further held that
policy reasons and considerations of cost savings and the avoidance of delays indicated that
the institution of two distinct actions should be avoided. It stated that the “pleading of cir-
cumspect prayers” in the divorce action which makes the accrual order dependent on the
106
granting of a divorce order could avoid the need to institute two actions.
In contrast, several divisions of the High Court have held that litis contestatio is the date on
107
which the value of the spouses’ estates is to be determined. In MB v NB the court stated in
an obiter dictum that the date on which the spouse with the smaller accrual acquires his or her
accrual claim must be distinguished from the date on which the value of the spouses’ respec-
tive estates is to be determined. The latter date is a procedural issue. Litis contestatio should be
used as the date on which the value of the respective estates is to be determined because this
is the moment “when the dispute crystallises and can be presented to the court for
________________________

99 See fn 93 above. The section is silent about indexation of the excluded donation.
100 AM v JM 2011 JDR 0091 (WCC); MGB v DEB [2013] 4 All SA 99 (KZD) (also reported as MB v DB 2013
(6) SA 86 (KZD).
101 S 4(2).
102 Radebe v Sosibo 2011 (5) SA 51 (GSJ). See further ch 10 below.
103 [2010] JOL 26003 (NCK); see also Skelton and Carnelley (eds) Family Law 109; Van Niekerk A Practical
Guide to Patrimonial Litigation in Divorce Actions pars 2.4, 3.4.2; Visser and Potgieter 147.
104 See also Willemse v Willemse (OPD) 12 September 2006 (Case 3600/2004), cited by De Jong 2012 Stell LR
227.
105 2014 (6) SA 233 (GJ).
106 Par 20.
107 2010 (3) SA 220 (GSJ), Heaton and Kruger Casebook on Family Law case [88].
98 South African Family Law
108 109
decision”. This view was applied in MGB v DEB, where the court held that “it is wholly
impractical that parties to a divorce should go to the lengths of establishing a right to accrual
in the divorce action and then have to embark upon a further litigious exercise in order to
110
decide the extent of such accrual”. As the court pointed out in MGB v DEB, it is unlikely
that the legislature could have intended “to devise a procedure which seems only calculated
to prolong the settlement of disputes between parties to a marriage, and to greatly increase
111 112
the legal costs of being able to resolve their differences”. In Schmitz v Schmitz the court
supported the approach in MB v NB and MGB v DEB. It further held that consistency and
economic equity would be ensured by using litis contestatio as the date on which the values of
the respective estates are to be determined. It would be inequitable to allow one spouse to
share in the post-separation accrual of the other spouse’s estate if the spouses have been
separated for a long time. Moreover, at litis contestatio at the latest, “the underlying partner-
113
ship” between the spouses has come to an end.
On a strict, literal interpretation of section 3(1) the view that the accrual and the accrual
claim must be determined at the dissolution of the marriage appears correct. However, using
litis contestatio as the pertinent date is preferable as the latter approach is realistic, saves costs,
expedites the trial, and “limit[s] the temptation to squander assets that some spouses seem to
114
find irresistible”.
The Matrimonial Property Act imposes a reciprocal duty on the spouses (or the executors
of their estates if they are deceased) to provide each other with full particulars of the value of
the respective estates for the purpose of determining the accrual. They must provide these
details within a reasonable time of being requested to do so.115
116
(e) An example of the accrual calculation
The calculation of the accrual of spouses’ estates and the accrual claim can be explained by
means of the following example: H and W are married subject to the accrual system. At the
time of the wedding, H owns no assets and has a study loan of R10 000, while W has savings in
the amount of R20 000 and no debts. When H dies five years later, he leaves a net estate of
R250 000, which is made up as follows:
Intestate inheritance received from his father R15 000
Satisfaction received for defamation R5 000
Assets amassed himself R230 000
R250 000

________________________

108 233C.
109 [2013] 4 All SA 99 (KZD) (also reported as MB v DB 2013 (6) SA 86 (KZD)). But see JA v DA 2014 (6) SA
233 (GJ) where it was held that the distinction between procedure and substance does not change the
moment for determining the value of the spouses’ estates.
110 Par 31.
111 Ibid. On the undesirability of adjudicating proprietary claims after the divorce, see De Jong 2012 Stell LR
228–231; De Jong and Pintens 2015 TSAR 559.
112 [2015] 3 All SA 85 (KZD), Heaton and Kruger Casebook on Family Law case [34].
113 Par 24.
114 MB v NB 2010 (3) SA 220 (GSJ) par 42. See also Heaton in Heaton (ed) Law of Divorce and Dissolution of
Life Partnerships 98; De Jong 2011 THRHR 472. See further De Jong and Pintens 2015 TSAR 563–564.
115 S 7. On the uncertainty as to when the particulars may be sought, see De Jong 2012 Stell LR 232. In B v B
[2009] ZAWCHC 58, 27 March 2009 it was held that a spouse may not, as part of his or her action for di-
vorce, seek an order that the defendant must render an account containing full particulars of the value of
his or her estate for purposes of determining the difference between the accrual of the spouses’ estates.
The plaintiff must, instead, seek an order in terms of s 7 of the Matrimonial Property Act, and both
spouses must provide full particulars of the value of their respective estates.
116 For other examples, see Barratt (ed) Persons and the Family 313; Skelton and Carnelley (eds) Family Law
112–114; Visser and Potgieter 151–152; Church and Church in Church (ed) LAWSA Marriage par 106;
Sonnekus in Clark (ed) Family Law Service par B14.
 Chapter 7: Variable consequences of a civil marriage – Marriage out of community of property 99

At the time of H’s death, the net value of W’s estate is R70 000. Suppose that, according to the
weighted average of the CPI, money was worth twice as much at the commencement of the
marriage as at its dissolution.
The accrual is calculated as follows:
H’s estate:
Net value on dissolution R250 000
Minus net commencement value (deemed to be nil as debts exceed- R0
ed assets upon marriage)
Minus assets which do not form part of the estate’s accrual
– Intestate inheritance R15 000
– Satisfaction (non-patrimonial damages) R5 000
R20 000 R20 000
Accrual R230 000
W’s estate:
Net value on dissolution R70 000
Minus net commencement value as adapted in terms of the CPI
(R20 000 × 2 = R40 000) R40 000
Minus assets which do not form part of the estate’s accrual:
– None R0
Accrual R30 000
W’s estate has the smaller accrual. Therefore she can claim half the difference between the
two accruals from the executor of H’s estate.
W’s accrual claim = ½ (R230 000 – R30 000)
= ½ (R200 000)
= R100 000

7.4.5 Protection of a spouse’s right to share in the accrual

Since it is obvious that spouses who are married subject to the accrual system have an interest
in each other’s estates during the marriage, the legislator has created a mechanism to protect
this interest. Section 8(1) of the Act provides that if, during the subsistence of the marriage,
one spouse by his or her conduct seriously prejudices or will probably seriously prejudice the
other spouse’s right to share in the accrual at the dissolution of the marriage, the spouse who
has been prejudiced or stands to be so prejudiced may apply to the High Court for the
immediate division of the accrual. The court may order such a division only if it is satisfied
117
that no other person will be prejudiced.
The court may order division of the accrual in accordance with the provisions of the Act or
on such other basis as it deems just.118 Thus it may, for example, divide the difference between
the accruals on a 40:60 basis, instead of the usual 50:50 basis. By making an unequal division
________________________

117 In JA v DA 2014 (6) SA 233 (GJ) Sutherland J stated that it might be difficult to satisfy the requirement of
absence of prejudice to third parties, because a third party to whom the other spouse had alienated
assets would be prejudiced if the application were granted. It seems that the judge lost sight of the fact
that the application in terms of s 8 does not seek to set aside transactions that have already been com-
pleted; consequently it does not affect rights third parties have already obtained. See also Heaton 2014
Annual Survey of South African Law (forthcoming).
118 Schulze 2000 THRHR 120 submits that the accrual should be determined as at the date of service of the
papers in the application in terms of s 8, for otherwise the spouse may use the intervening time to dimin-
ish his or her estate even further. The risk of further depletion could be overcome by applying for an
urgent interim interdict when the papers are served.
100 South African Family Law

of the accrual, the court can compensate the prejudiced spouse for loss suffered as a result of
the other spouse’s conduct.
If the court orders immediate division, it may also order that the marriage will no longer be
subject to the accrual system and will in future be subject to complete separation of proper-
ty.119 If the court does not alter the matrimonial property system, it means that the accrual
system continues to apply to the marriage. A new accrual system, as it were, comes into being
from the date of the court order. For purposes of calculating this “new” accrual, the com-
mencement value of each spouse’s estate consists of the value of that estate after the accrual
has been divided in terms of the court order.
One may ask with some justification whether the interest the spouses have in each other’s
estates is adequately protected by section 8.120 The protection is probably adequate if the
spouse who stands to be prejudiced is aware of the intended prejudicial conduct. Before
applying for division of the accrual, or at the time when the application is served, he or she
can seek an interdict to prevent the other spouse from entering into the juristic act which will
prejudice him or her.121 But, if the other spouse has already depleted his or her estate, there is
little the prejudiced spouse can do. If assets have been transferred to a third party with the
fraudulent intention of prejudicing the other spouse, the prejudiced spouse can recover the
property from the third party with the actio Pauliana utilis.122 However, as it is very difficult to
prove fraudulent intention, the prejudiced spouse’s chances of success are slim.123
As the law stands, the prejudiced spouse may also apply to have the other spouse declared a
prodigal.124 However, it is doubted whether our courts will in future be willing to declare
someone a prodigal and to interdict him or her from dealing with his or her estate, since such
an order most probably amounts to an unjustifiable infringement of the person’s constitu-
tional rights to dignity and privacy.125 Furthermore, even if the court were to interdict the
________________________

119 S 8(2). If an amendment to the matrimonial property system is ordered, the new matrimonial property
system must be indicated on the copy of the antenuptial contract which is filed in the deeds registry:
s 8(3) and (4).
120 See also Hahlo, 5th edn, 308; Wille’s Principles 300; Van Aswegen 1984 Modern Business Law 148; Van Wyk
1985 De Rebus 59; Zaal 1986 TSAR 57; De Jong and Pintens 2015 TSAR 557, 564.
121 Reeder v Softline [2000] 4 All SA 105 (W), 2001 (2) SA 844 (W) (obiter); JA v DA 2014 (6) SA 233 (GJ)
(obiter); Church and Church in Church (ed) LAWSA Marriage par 105; Wille’s Principles 301.
122 Church and Church in Church (ed) LAWSA Marriage par 105; Hahlo, 5th edn, 309; Wille’s Principles 301;
Van Aswegen 1984 Modern Business Law 148.
123 On the actio Pauliana utilis, see further ch 6 above. In the case of a marriage subject to the accrual
system, there is no joint estate which can be used as a reason for delaying the right to invoke the actio
Pauliana utilis until the dissolution of the marriage. However, Van Wyk 1985 De Rebus 61 submits that in-
vocation of the actio Pauliana utilis might fail, because prejudice would be difficult to prove since the ac-
crual claim arises only upon dissolution of the marriage. It must be remembered though that the right to
share in the other spouse’s accrual already exists during the subsistence of the marriage (see above in
this chapter), and that it is this contingent right which is prejudiced by the other spouse’s fraudulent
disposition. See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 113.
The legislator should perhaps consider extending the protection afforded to spouses who are married
subject to the accrual system by requiring the consent of both spouses for certain transactions. Here one
thinks especially of donations. Hahlo, 5th edn, 308–309 gives a number of examples of countries in
which this kind of protection applies. Sonnekus 1997 TSAR 1 suggests that if a spouse incurred expendi-
ture in respect of, or made donations to a lover, the amounts spent or the value of the donations made
should be deemed still to form part of his or her estate. This will result in the end value of the estate be-
ing larger, thereby affording the “innocent” spouse a larger accrual claim against the “guilty” spouse. See
also De Jong and Pintens 2015 TSAR 564, who recommend that the value of squandered or concealed as-
sets and excessive donations should be added to the net end value of the estate of a spouse who acted
with the intention to diminish the value of his or her estate to the detriment of the other spouse.
124 Reeder v Softline [2000] 4 All SA 105 (W), 2001 (2) SA 844 (W) (obiter); Church and Church in Church
(ed) LAWSA Marriage par 105; Wille’s Principles 300. For an unsuccessful application for an interdict in a
marriage subject to the accrual system, see RS v MS 2014 (2) SA 511 (GJ).
125 Ss 10 and 14 of the Constitution of the Republic of South Africa, 1996. On prodigality and the unconsti-
tutionality of the limitations placed on prodigals, see further Heaton Persons ch 10.
 Chapter 7: Variable consequences of a civil marriage – Marriage out of community of property 101

spouse as a prodigal, the order would not afford the prejudiced spouse any redress in respect
of the other spouse’s past conduct.

7.4.6 Satisfaction of the accrual claim

A spouse can find himself or herself in a financial dilemma as a result of an accrual claim by
his or her spouse. For example, a businessman who unexpectedly, on the death of his wife,
has to pay an amount equal to half his estate to her heirs may have to sell his business.126 In
terms of section 10 of the Matrimonial Property Act, a court may on the application of the
spouse against whom an accrual claim lies order that satisfaction of the accrual claim be
deferred. Deferment may be granted on such conditions as the court deems just, including
the furnishing of security, payment by way of instalments, payment of interest, and delivery or
127
transfer of specified assets.

7.4.7 Renouncing the accrual claim

The Matrimonial Property Act does not expressly regulate the position when a spouse does
not want to share in the accrual of the other spouse’s estate when the claim falls due. If the
spouse who wants to renounce his or her claim is solvent, there should be no objection to the
renunciation because a solvent person may renounce any claim. The position becomes more
complicated if the claimant is insolvent when the accrual claim arises, for in such event,
renunciation would prejudice the spouse’s creditors in that they would not be able to attach
the share of the accrual the insolvent spouse would have received from the solvent spouse.
Let us suppose that a wife’s estate increased during the marriage, while her husband’s liabili-
ties exceeded his assets at the dissolution of the marriage. If the husband enforced the claim
to share in the accrual in the wife’s estate, his creditors could attach the amount as soon as it
was transferred to him. But what would the position be if he renounced his claim? Would
effect be given to this renunciation? In other words, can the husband legally renounce his
accrual claim to the detriment of his creditors?
It is submitted that the answer lies in the difference between the accrual claim and the
right to share in the accrual of the other spouse’s estate, which is explained above in this
chapter. Section 3(2) of the Matrimonial Property Act excludes the right to share in the
accrual from a spouse’s insolvent estate. The right therefore never forms part of a spouse’s
insolvent estate. The claim, however, is not excluded from the insolvent estate. Thus the
claim indeed forms part of the spouse’s insolvent estate.128 Renunciation of the claim would
usually amount to a disposition without value as envisaged in section 26 of the Insolvency Act
24 of 1936 and would be liable to be set aside.129

________________________

126 For examples of the implications of accrual sharing on specific testamentary terms, see Green Nov 2008
De Rebus 22.
127 For concern about the way in which the court framed part of its order in MGB v DEB [2013] 4 All SA 99
(KZD) (also reported as MB v DB 2013 (6) SA 86 (KZD)), see Heaton 2013 Annual Survey of South African
Law 454.
128 See also Van der Vyver and Joubert 567; Van Wyk 1985 De Rebus 60; Van Aswegen 1986 De Rebus 273;
Meskin et al par 5.3.6. But see Sinclair 34 fn 129 who argues that s 3(2) can be interpreted as meaning
that “what is acquired by way of this marriage system does not ever fall into one’s insolvent estate, even
years after the dissolution of the marriage”. She does indicate, however, that she doubts this interpreta-
tion. Sonnekus in Clark (ed) Family Law Service par B15 indicates that the matter is uncertain, but argues
for exclusion of the amount of the accrual claim from the insolvent estate after dissolution of the mar-
riage.
129 Hahlo, 5th edn, 310 submits that even if a spouse’s liabilities far exceed his or her assets, he or she can
renounce the claim, but he does not address the issue of whether the renunciation would amount to a
disposition without value as envisaged in s 26 of the Insolvency Act.
102 South African Family Law

7.5 Advantages and disadvantages of the main matrimonial

property systems
7.5.1 General
From the foregoing and the information in chapter 6 it is clear that, at present, there are
three main matrimonial property systems, namely universal community of property, complete
separation of property, and the accrual system. Prospective spouses must decide which of
these systems suits their particular circumstances best. Naturally, one cannot claim that one
particular matrimonial property system is always the best, because the different systems are
designed to accommodate different circumstances. Some of the advantages and disadvantages
of each of these systems are set out below.

7.5.2 Marriage in community of property

The main advantages of this system are:
(1) It applies by operation of law without an antenuptial contract having to be executed and
therefore requires no effort or expense on the part of prospective spouses.
(2) Each spouse automatically shares in the assets that are accumulated during the subsist-
ence of the marriage.
(3) Antenuptial assets are also shared. (For some spouses this could, however, be a disad-
vantage.)
(4) The credit-worthiness of husband and wife is the same during the subsistence of the
marriage.
The main disadvantages of this system are:
(1) The principle of joint liability for debts results in neither spouse being protected against
the other’s creditors. Insolvency, in particular, poses serious problems for both spouses.
(2) Unless the damages are payable because of personal injury, the spouses cannot recover
delictual damages from each other or each other’s insurers.
(3) The administration of the joint estate during the subsistence of the marriage is compli-
cated.
(4) A liquidity problem can occur if the marriage is terminated by the death of one of the
spouses.

7.5.3 Complete separation of property

The main disadvantage of this system is that the spouses have no right to share in any part of
one another’s estate. This obviously prejudices the spouse who is financially in the weaker
position upon the dissolution of the marriage. In some cases, however, the absence of any
form of sharing may be an advantage. For example, by opting for complete separation of
property a wealthy widower and a wealthy widow who marry each other can ensure that their
estates remain separate for their respective heirs.

7.5.4 The accrual system

The main advantages of this system are:
(1) The spouses share in the growth of each other’s estate.
(2) Whatever each spouse amassed prior to the marriage is not shared. (However, this can
also be a disadvantage.)
(3) The spouses are not liable for each other’s debts, with the result that each spouse’s estate
is protected against claims by the other’s creditors, unless one of them is insolvent at the
dissolution of the marriage.
(4) The spouses may freely enter into contracts with each other.
 Chapter 7: Variable consequences of a civil marriage – Marriage out of community of property 103

(5) The spouses can incur delictual liability against each other and can consequently hold
each other’s insurers liable.
(6) The administration of each spouse’s estate is uncomplicated.
The main disadvantages of this system are:
(1) The spouses have to enter into an antenuptial contract to apply this system to their
marriage.
(2) The spouses do not share in each other’s credit-worthiness, which can result in a home-
maker having little credit-worthiness during the subsistence of the marriage if his or her
estate is small.
(3) The calculation of the accrual upon dissolution of the marriage can be complicated.
 8
ALTERATION OF THE
MATRIMONIAL PROPERTY SYSTEM

8.1 The principle of immutability in matrimonial property law

Until the commencement of the Matrimonial Property Act 88 of 1984, the immutability prin-
ciple was applied strictly in our matrimonial property law. Therefore, the matrimonial prop-
erty system chosen by the spouses remained fixed during the subsistence of the marriage.1
This position was disadvantageous for many spouses as it often happens that spouses’ financial
circumstances change to such an extent during their marriage that the system they initially
chose becomes totally inappropriate. For this reason, the legislator relaxed the immutability
principle in the Matrimonial Property Act by creating several mechanisms for effecting a
postnuptial change of the matrimonial property system.
Firstly, for a limited period, which has expired, certain spouses were permitted to incorpor-
ate the accrual system into their marriage out of community of property simply by concluding
a registered notarial contract.2 This option is discussed in chapter 7 above.
Secondly, in limited circumstances, the court has the power to order the immediate div-
ision of the spouses’ matrimonial property and to change the couple’s matrimonial property
system at the request of one of the spouses. Section 20 of the Matrimonial Property Act
empowers the court to order the immediate division of the joint estate and to change the
spouses’ matrimonial property system if the conduct of one of them seriously prejudices or
will seriously prejudice the interests of the other spouse in the joint estate. Section 8 of the
Act confers a similar power on the court in respect of immediate division of the accrual. Sec-
tion 20 is discussed in chapter 6 above, and section 8 in chapter 7 above.
The last mechanism for alteration of the matrimonial property system which the Matrimo-
nial Property Act introduced is the joint application to court in terms of section 21(1) for per-
mission to change the matrimonial property system. This section is discussed under the next
heading.
The High Court also still has its common-law powers to rectify, amend or cancel an ante-
nuptial contract that does not correctly reflect the terms of the parties’ agreement, and to
vary or cancel the antenuptial contract if there are sound reasons for doing so. These powers
are discussed in chapter 7 above. Depending on the facts of the case, the rectification, amend-
ment or cancellation can amount to changing the couple’s matrimonial property system.
The above-mentioned mechanisms all achieve a change to the matrimonial property system
that binds the spouses as well as third parties.

________________________

1 See eg Union Government (Minister of Finance) v Larkan 1916 AD 212; Honey v Honey 1992 (3) SA 609 (W); SB
v RB [2015] 2 All SA 232 (ECLD).
2 Spouses in whose marriage the marital power operated could use the same mechanism to exclude the
marital power: s 25(2) of the Matrimonial Property Act 88 of 1984. In this instance, however, the change
did not relate to the matrimonial property system; it simply related to the administration of the matrimoni-
al property. S 25(2) is discussed in ch 6 above.

105
106 South African Family Law

8.2 Court-sanctioned alteration of the matrimonial property system

in terms of section 21(1) of the Matrimonial Property Act
88 of 1984
8.2.1 General
In terms of section 21(1) of the Matrimonial Property Act, spouses may jointly apply to court
for leave to change the matrimonial property system applicable to their marriage. It makes no
difference whether they are married in or out of community, or whether they married before
3
or after the commencement of the Act.
The wording of section 21(1) indicates that it deals with a postnuptial change to the spous-
es’ matrimonial property system. Thus the section is not a means of bestowing full validity on
the matrimonial property system the spouses selected in an informal antenuptial contract
prior to marriage.4 In Ex parte Sanders 5 the spouses’ antenuptial contract was apparently never
properly executed and in any event never registered, which was their attorney’s fault. When
the spouses discovered this state of affairs they successfully approached the court in terms of
section 21(1) for permission to change their matrimonial property system to the one they had
agreed upon prior to marriage. It is submitted that the court should not have granted the
application, as changing the matrimonial property system was not at issue at all. What the
spouses actually wanted to achieve was validity as against third parties of the matrimonial
property system they had chosen before marriage, and which already operated as between
them.6 Accordingly, their remedy lay in section 88 of the Deeds Registries Act 47 of 1937,
which authorises spouses who concluded an informal antenuptial contract to apply to court
for permission to have the contract formally executed and registered postnuptially, with the
result that it becomes binding as against third parties.7 The same objection applies to Ex parte
Engelbrecht.8 In this case, too, the spouses agreed that they would marry out of community of
property. They did not enter into a formal antenuptial contract as they were under the
mistaken impression that they could simply inform the marriage officer of their intention.
When the marriage officer told them that such a declaration of intent was insufficient, they
decided to go ahead with the wedding anyway as all the wedding arrangements had already
been made. They later successfully approached the court for an order in terms of section
21(1) permitting them to change their matrimonial property system to separation of property.

8.2.2 Statutory requirements

Section 21(1) of the Matrimonial Property Act provides that the spouses must jointly apply to
the High Court. They must set out the proposed new matrimonial property system in a notarial
contract and submit it to the court. If the court authorises the change, the approved notarial
contract must be registered in terms of section 89 of the Deeds Registries Act.
The court will approve the new system if the following conditions are met:
(1) There are sound reasons for the proposed change.
(2) Notice of the proposed change has been given to all the creditors of the spouses.
(3) No other person will be prejudiced by the change.
________________________

3 Some practitioners are unaware of this provision and advise their clients that they have to divorce and
remarry subject to a different matrimonial property system: see SB v RB [2015] 2 All SA 232 (ECLD).
4 An informal antenuptial contract is valid only as between the parties: see ch 7 above.
5 2002 (5) SA 387 (C).
6 Inter se the spouses were not married in community of property, as was incorrectly contended. Because they
had entered into an informal antenuptial contract in which they had excluded community of property pri-
or to marriage, they were married out of community of property. It was only in so far as third parties were
concerned that the absence of a formally executed and registered antenuptial contract rendered the mar-
riage in community of property: see ch 7 above.
7 See also Ferreira and Jacobs 2003 THRHR 339. On s 88 of the Deeds Registries Act 47 of 1937, see further
ch 7 above. On the differences between applications in terms of s 21(1) of the Matrimonial Property Act
and s 88 of the Deeds Registries Act, see Ferreira and Jacobs op cit.
8 1986 (2) SA 158 (NC).
 Chapter 8: Alteration of the matrimonial property system 107

What constitute sound reasons for a change depends on the facts and circumstances of each
case.9 In Ex parte Engelbrecht 10 the court held that the words “sound reasons” must be interpret-
ed according to their ordinary grammatical meaning and therefore refer to facts which are
convincing, valid and based on reality (“feite wat oortuigend, geldig en verankerd aan die
werklikheid is”).
The courts readily find that the requirement of sound reasons has been met. For instance,
in Ex parte Krös 11 the reasons the parties advanced for the proposed change were that they had
been ignorant about the consequences of community of property when they had married. It
was only during their marriage that they had realised that separation of property would have
suited their circumstances much better, inter alia because the husband wanted to start a
business and the wife wanted to be sure that her children from a previous marriage would
benefit from the assets she had brought into the marriage. In Ex parte Engelbrecht 12 the spouses
thought that they could marry out of community of property simply by informing the mar-
riage officer that they wanted to do so. When the marriage officer told them that such a
declaration of intent was insufficient, they went ahead with the wedding anyway. They later
sought court approval to change their matrimonial property system to separation of property.
In Ex parte Sanders 13 the spouses were under the mistaken impression that they had entered
into a valid antenuptial contract. When they discovered that the contract had not been
properly executed and registered they approached the court for an order permitting them to
change to separation of property.14 In Ex parte Burger 15 the parties, who had married subject to
complete separation of property, applied for permission to change to the accrual system. The
reason for the proposed change was that the husband’s estate had grown much more than
the wife’s and the parties wanted the wife to have a fair share of this increase upon the disso-
lution of the marriage. The above applications were all granted.
Circumstances such as those in Ex parte Coetzee 16 would surely also be considered sound rea-
sons.17 This case was decided before the Matrimonial Property Act came into operation and
concerned the court’s common-law power to vary or cancel an antenuptial contract if there
are sound reasons for doing so.18 The parties had concluded an antenuptial contract from
which community of property was excluded at the insistence of the bride’s father, while they
foresaw that their marriage would be unhappy unless they were married in community of
property. The court cancelled the antenuptial contract because its existence threatened the
spouses’ happiness.
8.2.3 Procedural requirements
In Ex parte Lourens 19 the Cape Provincial Division (now the Western Cape Division of the High
Court, Cape Town) held that it is desirable to have a uniform procedure for applications in
terms of section 21(1). The court therefore set procedural requirements for this division of
the High Court. Similar requirements were subsequently laid down for the Free State Division
of the High Court in Ex parte Le Roux; Ex parte Von Berg 20 and the Transkei High Court (now
________________________

9 Ex parte Engelbrecht 1986 (2) SA 158 (NC); Ex parte Lourens 1986 (2) SA 291 (C).
10 1986 (2) SA 158 (NC) 160H.
11 1986 (1) SA 642 (NC), Heaton and Kruger Casebook on Family Law case [35].
12 1986 (2) SA 158 (NC).
13 2002 (5) SA 387 (C).
14 Above in this chapter it was argued that in this case and in Ex parte Engelbrecht 1986 (2) SA 158 (NC) the
spouses should not have approached the court in terms of s 21(1) of the Matrimonial Property Act. They
should instead have relied on s 88 of the Deeds Registries Act.
15 1995 (1) SA 140 (D), Heaton and Kruger Casebook on Family Law case [37].
16 1984 (2) SA 363 (W).
17 See also Church and Church in Church (ed) LAWSA Marriage par 124 fn 7.
18 On this power, see ch 7 above.
19 1986 (2) SA 291 (C).
20 1990 (2) SA 70 (O). See also the earlier case of Ex parte Coertzen 1986 (2) SA 108 (O) in which the applica-
tion was refused because the notice to the creditors did not indicate the date on which the application
would be heard. The court further held that in order to protect third parties who may be prejudiced by the
continued
108 South African Family Law

the Eastern Cape Local Division of the High Court, Mthatha) in Ex parte Madikiza.21 Other
divisions of the High Court have also laid down procedural requirements by means of court
rules. Briefly, and generally summarised, the procedural requirements are the following:
(a) Notice
Notice of the application must be given to the registrar of deeds. The draft notarial contract
setting out the spouses’ proposed new matrimonial property system must be annexed to the
application.22
Notice of the intention to make the application must be published in the Government Gazette
and one, or even two, local newspapers at least two weeks before the application will be heard.
The date on which the application will be heard must be specified in the notice.
At least two weeks’ prior notice of the application must also be given by certified post to all
creditors of the spouses.
(b) The financial position of the spouses
The applicants must furnish sufficient information regarding their assets and liabilities to en-
able the court to judge whether or not there are sound reasons for the proposed change and
whether or not any other person will be prejudiced thereby. It should also be stated whether
or not the estate of either of the applicants has been sequestrated in the past.
(c) Sound reasons
The proposed change in the existing matrimonial property system must be fully substantiated.
(d) Absence of prejudice
The applicants must explain why no other person will be prejudiced by the proposed change.
The notarial contract setting out the proposed new matrimonial property system must fur-
thermore contain a provision preserving the rights of existing creditors.
(e) Domicile and residence
The application must contain particulars about the applicants’ domicile and residence show-
ing that the division of the court in which the application is being brought has jurisdiction in
the matter.
8.2.4 Retroactive alteration
Whether the matrimonial property system can be altered with retroactive effect is unclear. In
Ex parte Krös 23 it was held that it can be done. The court’s interpretation is in keeping with the
intention of the legislator, namely the creation of a flexible method for altering the matrimo-
nial property system, but is based on a very liberal interpretation of the wording of section
21(1). In Ex parte Oosthuizen,24 in contrast, the court adopted a strict approach to the wording
of the section and held that the court does not have the power to change the matrimonial
property system with retroactive effect.
Krös as well as Oosthuizen dealt with applications by spouses who were married in community
of property and wanted to change to separation of property. In Ex parte Burger 25 the parties
wanted to introduce the accrual system retroactively into their marriage out of community of
property. In the notarial contract setting out their proposed new matrimonial property sys-
tem, the spouses indicated that they wanted the values of their estates as at the date of the
conclusion of the notarial contract to be used as the initial values for purposes of calculating
________________________

proposed change, and creditors who inadvertently had not been given notice, a rule nisi must be issued and
published in a newspaper.
21 1995 (4) SA 433 (Tk).
22 The registrar of deeds must submit his or her views on the contract to the court. The court is obviously not
bound by those views.
23 1986 (1) SA 642 (NC).
24 1990 (4) SA 15 (E), Heaton and Kruger Casebook on Family Law case [36].
25 1995 (1) SA 140 (D).
 Chapter 8: Alteration of the matrimonial property system 109

their accruals. Magid J concluded that this could not be done. He held that the spouses had
to use the “normal basis of the accrual system”, which entails that the accrual is based on the
growth of each spouse’s estate from the moment that the marriage is entered into. Therefore,
the spouses had to use the values as at the date of their marriage as the initial values of their
estates. However, he considered it unnecessary to deal with the conflicting judgments in Krös
and Oosthuizen on whether or not a retroactive change is permissible, as he did not view his
decision as one amounting to a retroactive introduction of the accrual system. He held that by
implementing the accrual system from the beginning of their marriage, the applicants were
simply acting in accordance with the “normal basis of the accrual system” and were not doing
anything retroactively. This reasoning is difficult to accept. If a change that is applied for post-
nuptially operates as from the date of marriage it must perforce be a retroactive change. Fur-
thermore, the implication of Magid J’s decision is that spouses who invoke section 21(1) have
no choice but to alter their matrimonial property system with retroactive effect – at least when
they apply for introduction of the accrual system.

8.2.5 The effect that changing from community of property to separation of

property has on jointly owned property
In Ex parte Menzies 26 the applicants were married in community of property. They applied for
leave to change to separation of property. They further sought an order declaring that certain
immovable properties would henceforth vest in both of them in equal undivided shares as
joint owners. Some of these properties were registered in the name of the husband only. As the
wife was not a registered owner of these properties, the registrar of deeds averred that the wife’s
half-share in the properties would first have to be transferred to her by means of a formal deed
of transfer. The court held that this was unnecessary. It explained that when the matrimonial
property system is changed the tied-up co-ownership the spouses have in the assets of the joint
estate changes to free co-ownership. The spouses still have equal shares and their shares
27
remain undivided, but the shares now become divisible at the instance of either spouse.

8.3 Extra-judicial alteration of the matrimonial property system

Although the common-law immutability principle has been relaxed, it has not been abol-
ished. Therefore, spouses who want an amendment of their matrimonial property system to
operate as against third parties must use one of the mechanisms set out above in this chapter.
This is the position regardless of the proprietary system which operates in the marriage.
Because spouses who are married out of community of property may freely enter into con-
tracts with one another, the question arises whether they may, without resorting to one of the
mechanisms discussed above, agree to alter their matrimonial property system only as be-
tween themselves; in other words, may they alter their matrimonial property system extra-
judicially if they want the alteration to operate not as against third parties, but only inter se?
Since section 22 of the Matrimonial Property Act abolished the common-law prohibition
28
on donations one would expect the answer to be in the affirmative because most alterations
to the matrimonial property system could be construed as a donation (which might, of
course, be subject to donations tax). For example, if spouses who married subject to the
accrual system agreed to replace the accrual system with complete separation of property, the
agreement could be viewed as a contract of donation (provided, of course, that all the re-
quirements for such a contract were satisfied). The amount of the donation would be equal to
the amount of the accrual claim the spouse whose estate shows the smaller or no accrual
________________________

26 1993 (3) SA 799 (C).

27 The position is similar to the change that takes place as a result of divorce, ie, the spouses’ tied co-
ownership of indeterminate and indivisible shares in the joint estate changes to free co-ownership of de-
terminate and divisible shares in the former joint estate: Gugu v Zongwana [2014] 1 All SA 203 (ECM); see
also Corporate Liquidators (Pty) Ltd v Wiggill 2007 (2) SA 520 (T).
28 See further ch 5 above.
110 South African Family Law

would have had against the other spouse. However, our courts have held that an extra-judicial
alteration of the matrimonial property system is impermissible even if the spouses only wish to
bind themselves. From the case law it appears that this rule applies regardless of the type of
agreement the spouses enter into to try to achieve the alteration.
In Honey v Honey,29 the parties were married out of community of property with the accrual
system in terms of a duly executed and registered antenuptial contract. A few years after the
marriage they entered into a further written agreement which was notarially executed but was
neither registered in the deeds registry nor authorised in terms of section 21(1) of the Mat-
rimonial Property Act. This postnuptial contract purported to exclude the accrual system
from their marriage. The wife subsequently sued her husband for divorce and the court had
to decide on the validity of the postnuptial contract. The court held that the contract was
invalid and unenforceable between the parties inter se and against third parties, because the
immutability principle is independent from the now-abolished prohibition on donations and
renders void all postnuptial variations by the spouses of their matrimonial property system
which are not authorised by the court.
The courts have adopted the same approach to agreements in which spouses who are mar-
ried subject to complete separation of property seek to create universal partnerships. In JW v
30 31 32
CW, EA v EC and RD v TD it was held that spouses who are married subject to complete
separation of property may not enter into a societas universorum bonorum (that is, a universal
partnership relating to present and future assets, liabilities, profits and losses), because such a
33
partnership in effect amounts to creating community of property. Depending on the terms
of their antenuptial contract, spouses may, however, enter into a societas universorum quae ex
quaestu veniunt (that is, a universal partnership that is limited to the sharing of present and
34
future assets, liabilities, profits and losses acquired from commercial undertakings). In RD v
35
TD spouses who were married subject to complete separation of property started a fish
farming business shortly after they married. In their subsequent divorce proceedings, the
defendant brought a counterclaim requesting a declaration that a societas universorum quae ex
quaestu veniunt existed between the parties in respect of the business. The plaintiff raised an
exception against the counterclaim on the ground that it lacked averments to disclose a cause
of action because the alleged partnership would constitute an impermissible amendment of
the terms of the spouses’ antenuptial contract that specifically excluded community of profit
and loss. The court pointed out that the counterclaim related to a societas universorum quae ex
quaestu veniunt as opposed to a societas universorum bonorum because it was limited to the fish
farming business. The court held that although the terms of the spouses’ antenuptial contract
excluded community of profit and loss, it did not exclude the spouses’ freedom to enter into
a joint undertaking for their joint profit. As the joint profit the spouses made from the busi-
ness would be divided between them as partners and each spouse’s share of the profit would
fall into his or her separate estate, the profit would not be merged in violation of the terms of
36
their antenuptial contract. The court also referred to Fink v Fink and Mühlmann v Mühl-
37
mann where, at a time when the immutability principle still applied in its strict form, courts
had found that universal partnerships existed between spouses who were married subject to
________________________

29 1992 (3) SA 609 (W), Heaton and Kruger Casebook on Family Law case [38].
30 2012 (2) SA 529 (NCK).
31 (09/25924) [2012] ZAGPJHC 219 (25 October 2012).
32 2014 (4) SA 200 (GP); Heaton and Kruger Casebook on Family Law case [39].
33 JW v CW 2012 (2) SA 529 (NCK); EA v EC (09/25924) [2012] ZAGPJHC 219 (25 October 2012); RD v TD
2014 (4) SA 200 (GP). See also ch 7 above.
34 Fink v Fink 1945 WLD 226; Mühlmann v Mühlmann 1984 (3) SA 102 (A); RD v TD 2014 (4) SA 200 (GP). On
the two types of universal partnerships our law recognises, see eg Annabhay v Ramlall 1960 (3) SA 802 (N);
Sepheri v Scanlan 2008 (1) SA 322 (C); Ponelat v Schrepfer 2012 (1) SA 206 (SCA); Butters v Mncora 2012 (4)
SA 1 (SCA); Henning 2014 THRHR 231.
35 2014 (4) SA 200 (GP).
36 1945 WLD 226.
37 1984 (3) SA 102 (A).
 Chapter 8: Alteration of the matrimonial property system 111

complete separation of property and who operated businesses together. In Fink and Mühl-
mann, the spouses had entered into universal partnerships relating specifically to their busi-
nesses. The exception to the counterclaim was accordingly dismissed.
Contrary to the view that was adopted in earlier editions of this work, it is submitted that
the courts’ finding that an extra-judicial alteration of the matrimonial property system is
impermissible even if the spouses only want to bind themselves, is correct. In earlier editions
it was argued that even before the enactment of section 21(1) of the Matrimonial Property
Act, the immutability principle did not prohibit spouses who were married out of community
of property from entering into transactions which had the effect of amending their matrimo-
nial property system as between themselves, because such spouses were permitted to enter
into a universal partnership and a postnuptial universal partnership has an effect on the
division of the spouses’ matrimonial property as between themselves. However, as the court
indicated in RD v TD, in the old decisions where a universal partnership between spouses was
38
at issue, the partnership took the form of a societas universorum quae ex quaestu veniunt. This
type of universal partnership does not alter the spouses’ matrimonial property system, be-
cause each spouse’s share of the partnership assets, liabilities, profits and losses falls into his
or her separate estate; it is not merged with the other spouse’s share in some sort of joint
estate. Therefore, the foundation of the criticism in earlier editions of this work of the courts’
view that spouses cannot extra-judicially alter their matrimonial property system inter se was
inaccurate – spouses were, in truth, never allowed to enter into universal partnerships which
altered their matrimonial property system; they were only permitted to enter into universal
partnerships which did not alter their matrimonial property system.

________________________

38 See Fink v Fink 1945 WLD 226; Isaacs v Isaacs 1949 (1) SA 952 (C); Mühlmann v Mühlmann 1984 (3) SA 102
(A). The position in respect of unmarried partners is different: see ch 20 below.
 9
DISSOLUTION OF A CIVIL MARRIAGE –
GENERAL

9.1 The ways in which a marriage is dissolved

A civil marriage can be dissolved in three ways:
1
(1) By the death of one or both of the spouses.
(2) By the annulment of a voidable marriage.
(3) By divorce.
In the chapters that follow, the dissolution of a civil marriage by death and divorce are dis-
cussed. Annulment is discussed in chapter 4 above.

9.2 Judicial separation

Until the commencement of the Divorce Act 70 of 1979, the courts had the power to issue
orders for judicial separation. These orders did not dissolve the marriage; they merely tempo-
rarily suspended some of the spouses’ marital obligations, particularly the duty to live togeth-
er. Section 14 of the Divorce Act deprived the courts of their power to order judicial
separation.2 Thus, the only orders for judicial separation which might still operate today are
those handed down before the commencement of the Act on 1 July 1979. Judicial separation
has therefore become virtually obsolete and will not be discussed any further.3

9.3 Extra-judicial separation

Spouses may still agree on extra-judicial separation. Extra-judicial separation rests on an
agreement between the spouses that they will live apart. The spouses may also agree on the
proprietary consequences which are to operate while they live apart, the payment of mainten-
ance, occupation of the matrimonial home, parental responsibilities and rights in respect of
their children, and so forth, but their agreement does not bind third parties.4 The agreement
operates only as between the spouses and binds the spouses only for as long as both of them
uphold it. Despite the separation agreement, either spouse may institute divorce proceedings,
seek an order in connection with the parental responsibilities and rights in respect of their
children,5 or approach the court to amend the maintenance agreement they entered into.6
________________________

1 If a marriage is dissolved by the death of one of the spouses, divorce and ancillary proceedings between
them fall away. Therefore, the surviving spouse cannot, for example, proceed with a claim for redistribu-
tion of assets in terms of s 7(3)–(6) of the Divorce Act 70 of 1979 he or she had instituted before deceased’s
death: YG v Executor, Estate Late CGM 2013 (4) SA 387 (WCC).
2 The courts may no longer issue orders for restitution of conjugal rights either: s 14 of the Divorce Act 70 of
1979.
3 For a comprehensive discussion of this remedy, see Hahlo, 4th edn, 329 et seq.
4 Hahlo, 5th edn, 321.
5 The order may be sought in terms of the Matrimonial Affairs Act 37 of 1953 or the Children’s Act 38 of
2005: see ch 23 below.
6 The order may be sought in terms of the Maintenance Act 99 of 1998: see ch 5 above.

113
 10
DISSOLUTION OF A CIVIL MARRIAGE BY DEATH

10.1 Marriage in community of property

In a marriage in community of property, the death of either spouse terminates both the
marriage and the community of property. As this termination happens ex lege,1 the court need
not be approached for an order dissolving either the marriage or the joint estate. Further-
more, because the spouse’s death terminates the marriage and the joint estate, the spousal
2 3
consent requirements imposed by the Matrimonial Property Act 88 of 1984 no longer apply.
An executor winds up the joint estate in terms of the Administration of Estates Act 66 of
1965. This, inter alia, involves paying all debts owed by the joint estate and exacting payment
for all debts owed to the joint estate. It should be noted that unpaid antenuptial debts of
either spouse are not paid from the joint estate but from the net half of the debtor, irrespect-
ive of whether the debtor is the deceased or the surviving spouse.4 Once all the debts have
been settled, the executor delivers half the net balance of the joint estate to the surviving
spouse.5 This half belongs to the surviving spouse because he or she owns it by virtue of the
matrimonial property system which operated in the marriage, namely community of property,
and not because he or she inherits it.6 The other half devolves on the heirs of the deceased
spouse.
________________________

1 See eg Grimbeek v The Master 1926 CPD 183; Joseph v Joseph 1951 (3) SA 776 (N); Danielz v De Wet 2009 (6) SA
42 (C).
2 The consent requirements are discussed in ch 6 above.
3 Kotzé v Oosthuizen 1988 (3) SA 578 (C).
4 On liability for antenuptial debts, see ch 6 above.
5 In Danielz v De Wet 2009 (6) SA 42 (C) it was held that it is only after the death of the deceased that the
death benefits (proceeds) of a life insurance policy arise. Since the joint estate is terminated by the spouse’s
death, the death benefits fall into the deceased’s estate instead of into the joint estate. This decision is at
odds with the approach Muller 2006 THRHR 267 and 269 advocates. Muller states that practitioners have
regularly treated the proceeds of a life insurance policy without a nominated beneficiary as part of the joint
estate. Sonnekus 2010 TSAR 184 and Wood-Bodley 2010 SALJ 224 also differ from the view adopted in Dan-
ielz v De Wet.
6 See eg Estate Sayle v Commissioner for Inland Revenue 1945 AD 388, Heaton and Kruger Casebook on Family Law
case [23]. The surviving spouse does not have to quantify his or her share of the joint estate or lodge a
claim against the estate: Barnard v Van der Merwe 2012 (3) SA 304 (GNP). According to Ex parte Vonzell 1953
(1) SA 122 (C) and Nell v Nell 1976 (3) SA 700 (T), the surviving spouse receives half the joint estate even if
he or she murdered the deceased spouse. In Leeb v Leeb [1999] 2 All SA 588 (N), by contrast, it was held
that the murderer can be deprived of the benefits he or she obtained as a result of the marriage in com-
munity of property because no one should be allowed to benefit from his or her own crime and because
the murder renders the surviving spouse unworthy of benefiting from the deceased spouse’s contributions
to the joint estate. See also Danielz v De Wet 2009 (6) SA 42 (C) where a wife conspired to assault and do
grievous bodily harm to the deceased. The court held that the wife was unworthy of inheriting in terms of
the deceased’s will. See further Hahlo, 5th edn, 173 fn 100, 1953 SALJ 1, Sonnekus 2010 TSAR 175, Wood-
Bodley 2010 SALJ 30 and Schoeman-Malan LitNet Akademies (Regte) 3 Dec 2013, http://www.litnet.co.za/
privaatregtelike-perspektief-op-onwaardigheid-om-te-erf-die-uitwerking-van-gesinsmoorde/ (accessed 22 June
2015), who support the view that the murderer can be deprived of the benefits arising from community of
property; but see Lee and Honoré par 95 who support the view advanced in Ex parte Vonzell and Nell v Nell.

115
116 South African Family Law

Some of the disadvantages inherent in community of property come to the fore when one
of the spouses dies. For example, in order to meet creditors’ claims, the executor is both en-
titled and obliged to liquidate some, or even all, of the assets of the joint estate. This applies
even in respect of immovable property, because the executor may not mortgage such property
to discharge a debt.7 Even if there are no creditors, the surviving spouse may experience
serious problems when the heirs’ inheritances have to be paid out. The executor has the
power to liquidate part of the joint estate, or even the entire joint estate, in order to pay the
heirs in cash. Often this deprives the surviving spouse of his or her only shelter or means of
income (for example, a house, farm or family business). However, the surviving spouse is
allowed to buy some of the assets or even the whole estate. A third disadvantage is that control
of the joint estate is removed from the surviving spouse and vested in the executor. Without
the consent of the Master of the High Court, the surviving spouse may only deal with the assets
of the estate in order to preserve and protect them, to pay the deceased’s funeral expenses,
and to maintain the household and the dependants of the deceased or the surviving spouse.
The old rules concerning the wife’s renouncing her rights in the joint estate have fallen
into disuse.8 The same probably applies to boedelhouderschap (that is, continuation of the joint
estate by the surviving spouse and the children born of the marriage).9

10.2 Marriage out of community of property

Antenuptial contracts are not terminated by the death of either spouse. Therefore, any
outstanding marriage settlements and pacta successoria (that is, agreements concerning the
devolution of an estate) must be implemented.10
The executor winds up only the deceased spouse’s estate. The surviving spouse must lodge
any claims he or she has against the deceased estate with the executor. This includes a claim
in terms of section 23 of the Matrimonial Property Act in respect of household necessaries.11
If the accrual system applies to the marriage and the accrual of the surviving spouse’s estate is
less than the accrual of the deceased spouse’s estate, the surviving spouse must lodge a claim
12
against the deceased spouse’s estate and quantify the claim. If the accrual of the deceased
spouse’s estate is less than the accrual of the surviving spouse’s estate, the executor must
lodge a claim against the surviving spouse on behalf of the deceased spouse’s estate and
quantify it.13 It is only once the accrual claim has been satisfied that the estate devolves on the
14
heirs of the deceased spouse.

10.3 Maintenance of Surviving Spouses Act 27 of 1990

10.3.1 General
In terms of the Maintenance of Surviving Spouses Act 27 of 1990 the surviving spouse in a
marriage which is dissolved by death after 1 July 199015 has a claim against the estate of his or
her deceased spouse in respect of his or her reasonable maintenance needs until his or her
________________________

7 Williams v Williams (1896) 13 SC 200.

8 Church and Church in Church (ed) LAWSA Marriage par 88; Hahlo, 5th edn, 185; Lee and Honoré par 95;
Yeats 1945 THRHR 118; De Vos 1954 THRHR 133.
9 Natal Bank Ltd v Rood’s Heirs 1909 TS 243; Pont 1958 THRHR 231; but see Hahlo, 5th edn, 186 who submits
that boedelhouderschap is not yet obsolete although it is moribund. Lee and Honoré par 95 and Wille’s Prin-
ciples 318–319 still treat boedelhouderschap as part of our law.
10 See ch 7 above.
11 See ch 7 above on the right of recourse in respect of expenses incurred for household necessaries.
12 Barnard v Van der Merwe 2012 (3) SA 304 (GNP).
13 The accrual system is discussed in ch 7 above. For an exposition of the rules which determine whether the
proceeds of a life insurance policy fall into the accrual upon the death of one of the spouses, see Muller
2006 THRHR 269–270. See also fn 5 above.
14 S 4(2) of the Matrimonial Property Act; Radebe v Sosibo 2011 (5) SA 51 (GSJ).
15 This is the date on which the Act came into operation.
 Chapter 10: Dissolution of a civil marriage by death 117

death or remarriage.16 This claim arises regardless of the matrimonial property system which
operated in the marriage and regardless of whether or not the surviving spouse stands to
inherit from the deceased spouse.
However, the claim arises only if the surviving spouse is unable to provide for his or her
reasonable maintenance needs from his or her own means and earnings.17 The surviving
spouse’s means include any matrimonial property (such as half the joint estate or a share of
the accrual of the deceased spouse’s estate) and any inheritance from the deceased’s estate to
which he or she may be entitled.18 Voluntary contributions made to the surviving spouse’s
maintenance by his or her children do not fall within the ambit of the term “means” and are
therefore ignored when determining whether the surviving spouse is able to provide for his
or her own maintenance needs.19

10.3.2 Reasonable maintenance needs

The surviving spouse’s maintenance claim is limited to the amount which is needed to meet
his or her reasonable maintenance needs.20 When determining the surviving spouse’s reason-
able maintenance needs the following factors must be taken into account:
21
(1) The amount available in the deceased estate for distribution to heirs and legatees.
22
(2) The existing and expected means, earning capacity, financial needs and obligations of
the surviving spouse.
(3) The duration of the marriage.
(4) The surviving spouse’s standard of living during the subsistence of the marriage.
(5) The surviving spouse’s age at the time of the deceased’s death.
(6) Any other relevant factor which should be taken into account.23
Whether a particular fact is relevant depends on the facts of the particular case. In Mann v
24
Leach the plaintiff’s maintenance claim extended to a new motor vehicle and ongoing
medical expenses. As she was elderly, her state of health, eyesight and capacity to drive were
25
considered relevant. In Oshry v Feldman the Supreme Court of Appeal held that additional
administrative burdens, including the costs attendant on an award for periodical mainte-
nance which might continue for longer than anticipated, are relevant factors to be taken into
account when deciding on the mechanism that should be used to meet the surviving spouse’s
maintenance claim.

10.3.3 Disposal of the maintenance claim

The surviving spouse’s claim for maintenance must be proved and disposed of in terms of the
Administration of Estates Act.26 This means that the claim must be lodged with the executor
of the deceased estate.

________________________

16 S 2(1).
17 Ibid.
18 S 1.
19 Oshry v Feldman [2011] 1 All SA 124 (SCA), 2010 (6) SA 19 (SCA).
20 S 2(1).
21 The proceeds of insurance policies for which beneficiaries have been nominated are excluded from this
amount if the beneficiaries accept the proceeds: Oshry v Feldman [2011] 1 All SA 124 (SCA), 2010 (6) SA 19
(SCA); see also fn 5 above.
22 “Existing and expected means” refer only to the surviving spouse’s own means: Oshry v Feldman [2011] 1 All
SA 124 (SCA), 2010 (6) SA 19 (SCA).
23 S 3.
24 [1998] 2 All SA 217 (E).
25 [2011] 1 All SA 124 (SCA), 2010 (6) SA 19 (SCA), Heaton and Kruger Casebook on Family Law case [40]. For
criticism of the decision, see Sonnekus 2010 TSAR 808.
26 S 2(3)(a) of the Maintenance of Surviving Spouses Act.
118 South African Family Law

The executor has the usual powers of an executor under the Administration of Estates Act.
In addition, the Maintenance of Surviving Spouses Act expressly empowers the executor to
enter into an agreement with the surviving spouse and the interested heirs and legatees in
order to settle the surviving spouse’s maintenance claim either fully or partially.27 In terms of
this agreement, a trust may be created, assets or a right in assets of the deceased estate may be
transferred to the surviving spouse or the trust, or an obligation may be imposed on an heir
or legatee.28 Thus, for example, the agreement may provide that the former matrimonial
home will be transferred to the surviving spouse, that assets will be transferred to a trust of
which the surviving spouse will be the beneficiary, or an heir may grant the surviving spouse a
usufruct over the former matrimonial home, which allows the surviving spouse to stay in the
30
property.29 In Oshry v Feldman the court held that the claim can be settled by way of periodi-
cal payments or payment of a lump sum, and that the totality of the circumstances of the case
31
must be considered in order to arrive at a just result.
If the parties are unable to reach agreement on the surviving spouse’s maintenance claim
32
and/or the way in which it is to be settled, the court may be approached for an order.
The surviving spouse does not have a right of recourse against anyone to whom money or
property has been validly distributed in terms of the Administration of Estates Act.33 This
means that if the deceased’s whole estate has already been distributed in terms of the Admin-
istration of Estates Act without the surviving spouse’s maintenance claim being met, the sur-
viving spouse is left without recourse.

10.3.4 The order of preference

The surviving spouse’s maintenance claim has the same order of preference in respect of other
claims against the deceased’s estate as that of a dependent child of the deceased spouse. If the
surviving spouse’s claim and that of a dependent child compete with one another and there
are insufficient resources from which they can be met, they are reduced proportionately.34

________________________

27 S 2(3)(d).
28 Ibid.
29 Sonnekus 1990 TSAR 491 correctly points out that when the former matrimonial home has been bequeathed
to somebody other than the surviving spouse, accommodation is often the surviving spouse’s most pressing
need.
30 [2011] 1 All SA 124 (SCA), 2010 (6) SA 19 (SCA).
31 Oshry v Feldman [2011] 1 All SA 124 (SCA), 2010 (6) SA 19 (SCA).
32 As happened in, eg, Oshry v Feldman [2011] 1 All SA 124 (SCA), 2010 (6) SA 19 (SCA).
33 S 2(2) of the Maintenance of Surviving Spouses Act.
34 S 2(3)(b).
 11
THE GROUNDS FOR DIVORCE

11.1 Introduction
Before the coming into operation of the Divorce Act 70 of 1979 on 1 July 1979, our law recog-
nised four grounds for divorce, namely adultery, malicious desertion, incurable mental illness
lasting at least seven years, and imprisonment for at least five years after having been declared
a habitual criminal.1 The old divorce law was essentially based on the idea that in every di-
vorce action there was a guilty and an innocent party. The fault principle also played a signifi-
cant role in respect of the consequences of divorce. Thus, for example, only the innocent
spouse could claim maintenance, and the guilty spouse forfeited all the patrimonial benefits
of the marriage if the innocent spouse applied for a forfeiture order against him or her.
The Divorce Act now regulates divorce and its consequences. The Act provides for three
no-fault grounds of divorce:
(1) The irretrievable breakdown of the marriage as contemplated in section 4.
(2) The mental illness of a party to the marriage as contemplated in section 5.
(3) The continuous unconsciousness of a party to the marriage as contemplated in section 5.2

11.2 Irretrievable breakdown of the marriage

11.2.1 The test for irretrievable breakdown
The crucial issue with regard to the principle of breakdown is to establish when a marriage can
be considered as having broken down irretrievably. In other words, according to what criterion
must irretrievable breakdown be established? Section 4(1) of the Divorce Act expressly pro-
vides that the court may only grant a decree of divorce on the ground of the irretrievable
breakdown of a marriage
if it is satisfied that the marriage relationship between the parties to the marriage has reached
such a state of disintegration that there is no reasonable prospect of the restoration of a normal
marriage relationship between them.
It is clear that section 4(1) lays down two requirements:
(1) The marriage relationship must no longer be normal.
(2) There must be no reasonable prospect of the restoration of a normal marriage relation-
ship between the spouses.
Consequently, it is very important to determine when a marriage relationship is no longer
normal. As a jurist, one must preferably work with a legal concept, and thus little benefit is to
be gained by consulting sociologists, marriage guidance counsellors, theologians, psycholo-
gists, and so on in an attempt to ascertain precisely what constitutes a normal marriage. On the
contrary, one would probably find a large number of disparate definitions among the
________________________

1 Hahlo, 4th edn, 361 et seq.

2 S 3 of the Divorce Act 70 of 1979.

119
120 South African Family Law

exponents of those disciplines. The legal definition of a “normal marriage relationship”

should be sought in the concept of consortium omnis vitae.3 When either spouse or both spouses
behave in such a way that the consortium is terminated or seriously disrupted, it can be said
that a normal marriage relationship no longer exists between the spouses.4
The method the courts use to determine whether the consortium has been terminated or
seriously violated involves subjective and objective elements. A purely objective approach
means that the court only considers its own interpretation of the facts and circumstances of
the marriage in question while a purely subjective approach means that the court only con-
siders the plaintiff’s attitude. A purely subjective approach would result in the marriage being
regarded as having broken down irretrievably as soon as the plaintiff sued for divorce.5
In Schwartz v Schwartz 6 Corbett JA stated the court’s approach clearly:
In determining whether a marriage has reached such a state of disintegration that there is no rea-
sonable prospect of the restoration of a normal marriage relationship between the parties it is
important to have regard to what has happened in the past, ie the history of the relationship up
to the date of trial, and also to the present attitude of the parties to the marriage relationship as
revealed by the evidence at the trial.
The court also decided in no uncertain terms that it is inadmissible to try and determine
whether or not a marriage has broken down irretrievably by considering what might happen
if it were to refuse the decree of divorce.7
In Swart v Swart 8 Flemming J stated that a marriage has broken down if one spouse no long-
er wishes to continue with the marriage. The formation of such an intention, however, does
not prove the irretrievability of the breakdown. The formation of an intention to sue for
divorce is the subjective element in the approach to determining marriage breakdown.
However, in order to assess the probability of the restoration of a normal marital relationship,
the court also has to consider the reasons which prompted the plaintiff to sue for divorce, and
the parties’ conduct. Only when the court has determined, in the light of all the circumstanc-
es of the particular case, that there is no reasonable prospect of the restoration of a normal
marital relationship, will it find that the marriage has broken down irretrievably and grant a
decree of divorce. The court looks at the objective scantiness and surmountability of the
reasons why a divorce was applied for (“die objektiewe karigheid en oorkombaarheid van die
redes waarom op die aanvra van ’n egskeiding besluit is”) to ascertain whether the marriage
in question can still be saved.9
In Coetzee v Coetzee 10 it was held that in order to succeed in a divorce action based on irre-
trievable breakdown, the plaintiff must prove that there has been a change in the pattern of
the marriage from which breakdown can be deduced. The very unfortunate implication of
this decision is that a divorce cannot be obtained in a marriage which was unhappy from the
start and has remained unhappy throughout. It is submitted that permanently tying spouses
to an unhappy marriage is not in keeping with the legislator’s intention in enacting section 4
11
of the Divorce Act.
________________________

3 On the meaning and content of consortium omnis vitae, see ch 5 above.

4 In eg Schwartz v Schwartz 1984 (4) SA 467 (A) and Naidoo v Naidoo 1985 (1) SA 366 (T) the court took the
infringement of various aspects of the consortium into consideration.
5 On the subjective and objective approaches, see further Barratt (ed) Persons and the Family 329; Glover in
Clark (ed) Family Law Service par D2; Heaton in Church (ed) LAWSA Marriage par 162; Lee and Honoré par
117 fn (n); Robinson in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 12–15; Skelton and
Carnelley (eds) Family Law 123; Van der Vyver and Joubert 655–656; Visser and Potgieter 159–160; Wille’s
Principles 324; Barnard and Van Aswegen 1981 THRHR 199.
6 1984 (4) SA 467 (A) 475, Heaton and Kruger Casebook on Family Law case [41].
7 479.
8 1980 (4) SA 364 (O), Heaton and Kruger Casebook on Family Law case [42].
9 368; see further Naidoo v Naidoo 1985 (1) SA 366 (T); Vermeulen v Vermeulen; Buffel v Buffel 1989 (2) SA 771
(NC).
10 1991 (4) SA 702 (C).
11 See also Robinson in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 15.
 Chapter 11: The grounds for divorce 121

11.2.2 The guidelines in section 4(2)

(a) General
Section 4(2) of the Divorce Act contains guidelines as to when a marriage is regarded as having
broken down irretrievably. These guidelines are merely examples of instances when the prob-
ability is high that a normal marriage relationship no longer exists and that there is no rea-
sonable prospect for the restoration of a normal marriage relationship.12 It is important to
keep in mind, firstly, that the particular instances are not the only proof of irretrievable
breakdown, and, secondly, that they are not necessarily conclusive proof of irretrievable
breakdown. In other words, the court may find irretrievable breakdown on totally different
facts, or it may find that a marriage has not broken down irretrievably, despite the existence
of the situation mentioned in a particular guideline.
Each of the guidelines is set out under a separate heading immediately below.
(b) Section 4(2)(a): The parties have not lived together as husband and wife for a
continuous period of at least one year immediately prior to the date of the institution of
the divorce action
The first question one could ask regarding this guideline is what the position would be if the
spouses resumed cohabitation during the year of separation in order to try and effect a recon-
ciliation. Since the legislator requires an unbroken period of at least one year, it is clear that if
this period were to be interrupted by periods of resumed cohabitation, the plaintiff would
have to present more evidence to the court than the mere fact that the spouses have lived
apart for a year.
The guideline further sets out the particular form the separation should take: the spouses
must not have lived together as husband and wife. The issue is not geographic separation, but ter-
mination of the consortium between the spouses. If the parties have, in fact, lived geographic-
ally apart for a year or longer, termination of the consortium is assumed and the court will
probably grant a decree of divorce in the absence of evidence justifying or clarifying the sep-
aration. Even if the spouses have continued living together under the same roof there is no
reason why the plaintiff cannot show that the consortium has been terminated, for example,
because they no longer have sex, no longer communicate with each other, and so on.
If the plaintiff wishes to rely only on the spouses having lived apart for a year without ad-
ducing any further evidence, he or she must produce proof that the full period of at least a
year has elapsed. The plaintiff would consequently have to prove the exact date on which the
separation commenced. If the spouses still share the same house, the plaintiff would have to
prove the particular point in time at which the consortium came to an end. In the latter case,
more evidence would have to be adduced than would be necessary in the former case.
(c) Section 4(2)(b): The defendant has committed adultery and the plaintiff finds it
irreconcilable with a continued marriage relationship
In terms of the old, fault-based law of divorce, the mere commission of adultery by the defend-
ant was enough to found a divorce. Section 4(2)(b) of the Divorce Act, however, requires that
the plaintiff must also show that he or she finds it impossible to continue with the marriage
because of the defendant’s adultery. The test to determine whether the plaintiff considers the
defendant’s adultery irreconcilable with the continuation of the marriage is subjective.
The measure of proof required to support a claim of adultery is not indicated in section
4(2). Of necessity, the word “adultery” retains the same meaning as before. Consequently,
one could argue that adultery must still be proved as in the past. Conversely, one could argue
that the phrase “the court may accept evidence that…” in section 4(2) means that it is not
necessary to convince the court on a balance of probabilities that adultery was committed.
The plaintiff should, however, place some evidence of adultery before the court. A mere
allegation that the defendant committed adultery would not ensure success.
________________________

12 South African Law Commission Report on the Law of Divorce and Matters Incidental Thereto pars 9.5 and 18.4.
122 South African Family Law

(d) Section 4(2)(c): A court has declared the defendant a habitual criminal and the
defendant is undergoing imprisonment as a result of the declaration
As the guideline is expressly limited to imprisonment on the ground of habitual criminality,
the plaintiff would in all other cases of imprisonment have to adduce evidence other than the
mere fact of the defendant’s imprisonment to prove that the marriage has broken down irre-
trievably. This guideline would have been far more effective if a particular period of imprison-
ment on its own were regarded as proof of irretrievable breakdown of the marriage. However,
it must be borne in mind that, in terms of section 4(2)(a), the plaintiff may in any event sue
for divorce after a year’s separation, regardless of whether or not the separation resulted from
imprisonment.

11.3 Incurable mental illness or continuous unconsciousness

11.3.1 General
Section 5(1) of the Divorce Act provides that mental illness without a reasonable prospect of a
cure constitutes a ground for divorce, while section 5(2) provides that unconsciousness with
no reasonable prospect of recovery is a ground for divorce. According to the then South
African Law Commission (which is now called the South African Law Reform Commission),
section 5 was adopted because “one is concerned with a special situation for which special
rules must be laid down. For this reason it appears to be desirable to treat mental illness as a
separate ground for divorce”.13 The same applies to continuous unconsciousness. The “special
rules” refer to the criteria that apply to establishing these two grounds for divorce, and the
elimination of the spouses’ conduct as a factor which can affect the consequences of the
divorce.14

11.3.2 The criteria contained in section 5

In terms of section 5(1), the plaintiff can obtain a divorce on the ground of the defendant’s
mental illness if he or she satisfies the court of the following:
(1) The defendant has been admitted to an institution as a patient in terms of a reception
order under the Mental Health Act 18 of 1973, or is being detained as a state patient or
mentally ill convicted prisoner at an institution. The Mental Health Act has since been
replaced by the Mental Health Care Act 17 of 2002. The equivalent of a patient who has
been admitted by virtue of a reception order is a mental health care user who is receiving
involuntary care, treatment and rehabilitation services.15
(2) The defendant has not been unconditionally discharged from the institution or place of
detention for a continuous period of at least two years immediately prior to the institu-
tion of the divorce action.
(3) There is no reasonable prospect that the defendant will be cured of his or her mental ill-
ness. This fact must be proved by the evidence of at least two psychiatrists, one of whom
must be appointed by the court.
Section 5(2) stipulates the circumstances in which the defendant’s continuous unconscious-
ness constitutes a ground for divorce:
(1) The defendant must be in a state of continuous unconsciousness caused by a physical dis-
order.
(2) The unconscious state must have lasted for a continuous period of at least six months im-
mediately prior to the institution of the divorce action.

________________________

13 Report on the Law of Divorce and Matters Incidental Thereto par 11.1. However, the same approach has not been
adopted in respect of customary marriages: see ch 17 below.
14 S 9(2), which is discussed below in this chapter.
15 On the Mental Health Care Act, see Heaton Persons 122–128.
 Chapter 11: The grounds for divorce 123

(3) There must be no reasonable prospect that the defendant will regain consciousness. This
fact must be proved by the evidence of at least two doctors, one of whom must be a
court-appointed neurologist or neurosurgeon.

11.3.3 Divorcing a mentally ill or unconscious spouse in terms of section 4

instead of section 5
In the case of incurable mental illness and continuous unconsciousness, the legislator has
seen fit to lay down special rules regarding divorce. The question arises whether someone
who wants to divorce his or her mentally ill or unconscious spouse is compelled to institute
the divorce action in terms of section 5 or whether the action may be brought in terms of
section 4. In other words, the question is whether the requirements of section 5 must always
be met if one of the spouses is mentally ill or unconscious, or whether the plaintiff has a
choice whether to rely on section 4 or section 5.
In several decisions16 it has been held that the requirements of section 5 need not be com-
plied with in order to obtain a divorce order against a mentally ill or unconscious spouse, and
that a decree of divorce can be granted under section 4 if the plaintiff can prove that the
marriage has broken down irretrievably, either because of the defendant’s condition or for
some other reason.17
By employing section 4, the plaintiff can escape the stricter requirements of section 5. How-
ever, as Hahlo18 points out, only in the most exceptional circumstances will a court make a
forfeiture order against a defendant whose mental illness or unconsciousness is the reason for
a divorce which is granted in terms of section 4.

11.3.4 Special rules in respect of divorce on the ground of incurable mental

illness and continuous unconsciousness
(a) Section 5(3)
Section 5(3) of the Divorce Act empowers the court to appoint a legal practitioner to repre-
sent the defendant at the court proceedings, and to order the plaintiff to bear the costs of the
defendant’s legal representation.
(b) Section 5(4)
In terms of section 5(4), the court may make any order it deems fit in respect of requiring the
plaintiff to furnish security for any patrimonial benefits to which the defendant may be
entitled as a result of the divorce.
(c) Section 9(2)
Section 9(2) provides that forfeiture of patrimonial benefits may not be ordered against a
defendant if the marriage is dissolved on the ground of the defendant’s incurable mental
illness or continuous unconsciousness.19
(d) Maintenance
The Act does not make special provision for maintenance for either of the parties to divorce
proceedings instituted in terms of section 5. From this omission it can be deduced that the

________________________

16 Dickinson v Dickinson 1981 (3) SA 856 (W); Krige v Smit 1981 (4) SA 409 (C); Smit v Smit 1982 (4) SA 34 (O);
Ott v Raubenheimer 1985 (2) SA 851 (O).
17 See also Barratt (ed) Persons and the Family 332; Glover in Clark (ed) Family Law Service par D4; Hahlo, 5th
edn, 351; Heaton in Church (ed) LAWSA Marriage par 169; Lee and Honoré par 116 fn (n); Robinson in
Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 20–24; Skelton and Carnelley (eds) Family Law
125; Van der Vyver and Joubert 667; Visser and Potgieter 163; Wille’s Principles 329–330; Kaganas 1982 SALJ
345; Midgley 1982 SALJ 22; Scott 1982 Obiter 20; Van Loggerenberg 1982 THRHR 174; Barnard 1983
THRHR 354; Zaal 1983 SALJ 114, 1985 CILSA 237.
18 5th edn, 351 fn 56.
19 Forfeiture of benefits is discussed in ch 12 below.
124 South African Family Law

plaintiff may claim maintenance from the mentally ill or unconscious defendant in terms of
section 7(2) of the Act.20

11.4 Defences against an action for divorce

If a spouse rebuts the allegation that the marriage has broken down irretrievably, a divorce
will obviously not be granted. If the defendant succeeds, for example, in convincing the court
that there is a possibility of reconciliation between the parties, the court will probably post-
pone the proceedings in terms of section 4(3) of the Divorce Act in order to afford the spouses
an opportunity to attempt to save their marriage. An unsuccessful attempt at reconciliation
does, however, provide strong evidence of irretrievable breakdown so that a decree of divorce
will be granted if the spouses have found themselves unable to reconcile by the end of the
period for which the divorce proceedings have been postponed. The prospect of a further
attempt at reconciliation being successful is in any event extremely remote.

11.5 The court’s discretion to refuse a decree of divorce

The use of the word “may” in sections 3, 4 and 5 of the Divorce Act creates the impression
that the court has the power to refuse to grant a divorce even if it is proved, for example, that
the marriage has broken down irretrievably. In Smit v Smit 21 the court was prepared to recog-
nise the existence of such a discretion. However, in Schwartz v Schwartz 22 the Appellate Divi-
sion (now the Supreme Court of Appeal) in an obiter dictum expressed the view that the court
does not have this discretion and that a divorce must be granted once it has been proved that
a marriage has broken down irretrievably. Corbett JA stated:
In the first place, I am not convinced that s 4(1) does confer upon the Court the kind of discre-
tion contemplated by counsel’s submission. It is true that s 4(1) is couched in permissive terms.
It provides that a Court “may grant a decree of divorce” . . . It does not necessarily follow, how-
ever, that the Legislature intended to confer a discretion on the Court. Section 4(1) is clearly an
empowering section: it confers legislatively a power which the Court did not previously enjoy. A
statutory enactment conferring a power in permissive language may nevertheless have to be con-
strued as making it the duty of the person or authority in whom the power is reposed to exercise
that power when the conditions prescribed as justifying its exercise have been satisfied.23
When the Appellate Division had to decide the issue in Levy v Levy,24 it confirmed the view
which was expressed in Schwartz and expressly rejected the opposite view that had been
expressed in Smit.
Thus, generally speaking, the court has no discretion whether or not to grant a divorce if
one of the grounds for divorce has been proven.25 However, in terms of section 5A of the Di-
vorce Act, the court may refuse a divorce or make any other order it considers just if, despite
the divorce, the spouses or either of them will not be free to remarry unless the marriage is
also dissolved in accordance with the prescripts of the spouses’ religion or the religion of

________________________

20 S 7(2) is discussed in ch 13 below.

21 1982 (4) SA 34 (O), Heaton and Kruger Casebook on Family Law case [43].
22 1984 (4) SA 467 (A).
23 473–474.
24 1991 (3) SA 614 (A) 625E–G.
25 The most important objection to the court’s having a discretion is obviously that it is pointless to refuse a
divorce if the marriage has broken down irretrievably. After all, the court cannot resurrect a dead marriage.
See also CC v MVC [2013] 4 All SA 327 (GSJ), 2014 (2) SA 430 where it was held that parties should not be
shackled to a moribund marriage. On the court’s discretion, see further Barratt (ed) Persons and the Family
332–333; Glover in Clark (ed) Family Law Service par D1; Hahlo, 5th edn, 344–347; Heaton in Church (ed)
LAWSA Marriage par 172; Lee and Honoré par 116; South African Law Commission Report on the Law of Di-
vorce and Matters Incidental Thereto par 10.3; Robinson in Heaton (ed) Law of Divorce and Dissolution of Life
Partnerships 24–27; Skelton and Carnelley (eds) Family Law 126–127; Van der Vyver and Joubert 654–655;
Visser and Potgieter 158–159; Van Wyk 1979 De Rebus 636–637; De Waal and Van Heerden 1987 TSAR 257.
See also Ex parte Inkley and Inkley 1995 (3) SA 528 (C) 531–532.
 Chapter 11: The grounds for divorce 125

either of them, or unless a religious barrier to remarriage is removed.26 However, the court
may not refuse to order a divorce if the spouse within whose power it is to have the religious
marriage dissolved or the religious barrier removed has taken all the necessary steps in this
regard.27
Section 5A applies only to the divorce proceedings of couples who, in addition to having
concluded a civil marriage, are also married in terms of the rules of a particular religion. The
section does not apply if the spouses have entered into only a religious marriage.28 In other
words, section 5A applies to marriages which have dual validity because they qualify as both
religious and civil marriages. A religious marriage qualifies as a civil marriage if it is monog-
amous and meets the requirements of the Marriage Act 25 of 1961.29 In such event, the
religious and civil marriage exist side by side, with the consequences of the civil marriage
being governed by the common law and the legislation that applies to civil marriages, and the
consequences of the religious marriage being governed by the particular system of religious
law in terms of which the marriage was celebrated. If the marriage has dual validity, the civil
marriage can be dissolved in terms of the Divorce Act, but the religious marriage will not
necessarily be terminated by the secular divorce order that is granted in terms of the Divorce
Act, for the specific religion to which the parties subscribe may not allow divorce at all (as in
the case of the Roman Catholic faith30 and certain branches of the Hindu religion31) or may set
additional requirements for dissolution of the religious marriage (as in the case of Jewish
marriages).32 If the particular religion allows divorce but sets additional requirements for the
dissolution of the religious marriage, the religious marriage continues to exist unless it is
dissolved in accordance with the rules of the particular religion. If the religion does not allow
divorce at all, there obviously is no way in which the religious marriage can be dissolved,
regardless of any order the court may make in terms of section 5A of the Divorce Act. In such
cases, the court should, logically, not make an order in terms of section 5A, because neither
party can take any steps to have the religious marriage dissolved or the religious barrier
removed.33
The purpose of section 5A is to relieve the desperate position in which, for example, a Jew-
ish woman finds herself if her husband refuses to grant her a Jewish religious divorce (that is,

________________________

26 Van Schalkwyk 2000 De Jure 189 and 190 submits that s 5A does not empower the court to withhold a
divorce and make another order it deems just. The court must either refuse a divorce, or order the divorce
coupled with any other order it deems just. It is submitted that the wording of the section does not justify
this interpretation. S 5A does not fetter the court’s discretion on what other order it may deem just. In
terms of the section, the court may either refuse to order a divorce and leave it at that, or it may make any
other order it deems just. A just order may be that a divorce is refused and some additional sanction, such
as a punitive maintenance order, is imposed.
27 Some lawyers are critical of s 5A because there is no guarantee that a religious officer or body which is
approached for dissolution of the religious marriage or removal of the religious barrier will grant the ap-
plication: Barker Jan 1998 De Rebus 55, 56; O’Connor April 1998 De Rebus 24. These critics lose sight of the
qualification in s 5A, namely that the court may not refuse to grant the divorce if it is satisfied that the
spouse within whose power it is to have the marriage dissolved or the barrier removed “has taken all the
necessary steps to have the marriage so dissolved or the barrier to the remarriage of the other spouse re-
moved”. The secular divorce order is therefore not dependent on the successful outcome of an application
for dissolution of the religious marriage or the actual removal of the barrier to remarriage but merely on
the spouse’s taking “all the necessary steps” to obtain dissolution or removal of the barrier. See also Heaton
2008 Stell LR 457 fn 38.
28 The dissolution of a purely religious marriage is governed by the system of religious law governing the
marriage.
29 See ch 3 above on the requirements the Marriage Act 26 of 1951 sets for marriages, especially the solem-
nisation of marriages.
30 O’Connor April 1998 De Rebus 24.
31 Singh v Ramparsad 2007 (3) SA 445 (D).
32 Berkowitz v Berkowitz 1956 (3) SA 522 (SR); Raik v Raik 1993 (2) SA 617 (W); Amar v Amar [1999] 2 All SA
376 (W), 1999 (3) SA 604 (W).
33 Heaton 2008 Stell LR 457 fn 38; see also Van Schalkwyk 2000 De Jure 188.
126 South African Family Law

a get). In Jewish religious law, only the husband has the power to grant a get. As her secular
divorce is meaningless under Jewish religious law, a wife who has not been granted a get
cannot remarry while her religious marriage exists. If she enters into another marriage after
the court has made the secular divorce order but before she has obtained a get, her second
marriage is void in the eyes of Jewish religious law and the children fathered by her new
husband are born of unmarried parents.34 In the only reported case on section 5A, Amar v
Amar,35 Goldstein J issued a divorce decree in terms of the Divorce Act but ordered the hus-
band who was unwilling to co-operate in giving a get, to pay maintenance to his wife (who was
not otherwise entitled to maintenance from him) until such time as their marriage was
terminated by the granting of a get.
It has been argued that section 5A violates the constitutional right to equality36 because it
treats spouses in religious marriages differently from spouses whose marriages are not gov-
erned by a system of religious law. On a proper interpretation of the concept of equality this
argument should be rejected. It is trite that equality does not mean that all people must be
treated alike. The Constitutional Court has repeatedly made it clear that substantive equality
is what must be achieved,37 and substantive equality demands that spouses whose marriages
are governed by a system of religious law which could be used by one spouse to unduly preju-
dice the other should be treated differently from spouses whose marriages are not subject to
such a system. Furthermore, because, apparently, it is usually the husband who exploits the
religious prescripts,38 the object of section 5A also is to achieve substantive gender equality.
Therefore it is submitted that, instead of offending the equality clause, section 5A conforms
to it. It has also been argued that section 5A infringes the right to freedom of religion39
because a party to a secular divorce action could be forced to take religious steps. In this
regard, it is submitted that the limitation of the right to freedom of religion is justifiable, as
the purpose of the limitation is the achievement of substantive equality, which is at the core of
our Bill of Rights.40

________________________

34 On the Jewish law of divorce and possible avenues for ensuring that a get is granted, see Berkowitz v Berkowitz
1956 (3) SA 522 (SR); Raik v Raik 1993 (2) SA 617 (W); Amar v Amar [1999] 2 All SA 376 (W), 1999 (3) SA
604 (W); Bilchitz in Rautenbach et al Introduction to Legal Pluralism in South Africa 289–291; South African
Law Commission Report on Jewish Divorces 1 et seq; Segal 1988 SALJ 97; Blackbeard 1994 THRHR 641; Fried-
man 1994 SALJ 97; Ger 1998 Responsa Meridiana 78; Moosa Oct 1999 De Rebus 37; Bonthuys 2000 SALJ 15–
16.
35 [1999] 2 All SA 376 (W), 1999 (3) SA 604 (W).
36 S 9 of the Constitution of the Republic of South Africa, 1996; see Church 1997 THRHR 292, 295.
37 See eg Brink v Kitshoff 1996 (6) BCLR 752 (CC), 1996 (4) SA 197 (CC); President of the Republic of South Africa
v Hugo 1997 (6) BCLR 708 (CC), 1997 (4) SA 1 (CC); Bannatyne v Bannatyne (Commission for Gender Equality,
as Amicus Curiae) 2003 (2) BCLR 111 (CC), 2003 (2) SA 363 (CC), Heaton and Kruger Casebook on Family
Law case [21].
38 South African Law Commission Report on Jewish Divorces par 2.5; see also Ger 1998 Responsa Meridiana 86.
39 Church 1997 THRHR 292, 295. But see Friedman 1994 SALJ 97 and 111 who submits that the legislation
gives due recognition to, and indeed safeguards, the right to freedom of religion. Mahomed 1997 De Rebus
496 shares this view. The right to freedom of religion is protected by s 15(1) of the Constitution.
40 On the constitutionality of s 5A, see also Glover in Clark (ed) Family Law Service par D1; Heaton Bill of Rights
Compendium par 3C25; Robinson in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 29; Skelton
and Carnelley (eds) Family Law 127–128; Visser and Potgieter 164–165; Bonthuys 2000 SALJ 15–16.
 12
THE PATRIMONIAL CONSEQUENCES OF
DIVORCE

12.1 Introduction
Sections 6 to 10 of the Divorce Act 70 of 1979 deal with the consequences of divorce regarding
division of the spouses’ assets, post-divorce maintenance for one of the spouses, the interests
of the couple’s children, and costs. In this chapter, the focus falls on division of the spouses’
assets, that is, the patrimonial consequences of divorce.

12.2 Settlement agreements

In South Africa it is accepted practice to regulate the consequences of divorce by means of
agreement. In fact, in most divorces the spouses enter into a settlement agreement (also called
a deed of settlement or consent paper).1 In their settlement agreement, the spouses regulate
matters such as the division of their assets, payment of maintenance, the allocation and exer-
cising of parental responsibilities and rights, and liability for the costs of the proceedings.2
The parties may include any provision in their deed of settlement which is not impossible,
3
contra bonos mores or contrary to the law or public policy. Thus the spouses may, for example,
agree on a division of their assets which deviates from the normal rules regarding the matri-
monial property system which operates in their marriage. For instance, they may agree that,
despite the fact that the accrual system operates in their marriage, neither spouse will have an
accrual claim against the other and each spouse will simply retain his or her own assets, that
one spouse will receive all the assets that belong to both spouses, or that one spouse will
4
transfer particular assets to the other.
In terms of section 7(1) of the Divorce Act, the court may make an order with regard to the
division of the spouses’ assets and the payment of maintenance in accordance with the spous-
es’ settlement agreement, provided that the agreement is in writing. The court is not com-
pelled to make an order in accordance with the settlement agreement – it has a discretion in
the matter.5 Furthermore, it may accept only parts of the settlement agreement. For example,
________________________

1 For criticism of the courts’ blithe reliance on the assumption that settlement agreements are based on
autonomy and freedom of choice, which inter alia ignores the fact that women’s economic, educational and
socially inferior position is reflected in their bargaining power within the realm of the family, see eg Barratt
(ed) Persons and the Family 338; Bonthuys 2001 THRHR 208–210; Heaton 2005 SAJHR 566–570. Mediation
can be a useful tool to get spouses to arrive at a settlement agreement: see De Jong 2012 Stell LR 237–238.
2 For a step-by-step guide to drafting settlement agreements, see Helman Sept 2002 De Rebus 38.
3 In PL v YL 2013 (6) SA 28 (ECG) the court added the requirement that the agreement must not violate a
fundamental right. It is submitted that public policy encompasses this requirement as it is unthinkable that,
under our constitutional dispensation, unjustifiable violations of fundamental rights could be in keeping
with public policy: see also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 87 fn 180.
4 On the possibility of changing sole ownership of immovable property by one spouse to joint ownership by
both spouses and registering a right of habitatio in favour of the spouses’ minor children, see Sonnekus in
Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 50–54.
5 Rowe v Rowe 1997 (4) SA 160 (SCA); Lebeloane v Lebeloane [2000] 4 All SA 525 (W); PL v YL 2013 (6) SA 28
(ECG).

127
128 South African Family Law

in Kotze v Kotze 6 the court refused to sanction a clause in which divorcing parents undertook
to educate their child in a particular church and further undertook that the child would “fully
participate in all the religious activities” of that church. The court held that the clause violat-
ed the child’s right to freedom of religion.7 If the court is of the view that the settlement
agreement should not be made an order of court, it must inform the parties of the reasons
8
for this view and give the parties an opportunity to address its concerns. If the concerns are
not adequately addressed, the court must “leave it to the parties to elect to either be content
with their agreement or parts thereof not being incorporated into the court’s order, or to
9 10
proceed to trial”; the court may not draft a replacement settlement agreement for the parties.
Section 7(1) empowers the court that grants a decree of divorce to make an order “in ac-
cordance with a written agreement between the parties”. The section does not stipulate that
the deed of settlement must be incorporated into the divorce order. The various divisions of
the High Court do not follow a uniform practice with regard to incorporating a settlement
agreement into the divorce order. In most divisions the settlement agreement is incorporated
into the divorce order and thereby turned into an order of court.11 In KwaZulu-Natal, the
12
agreement is not incorporated. Instead, those clauses of the agreement which the court
considers readily enforceable are embodied in the divorce order.
It is unclear whether an order declaring a deed of settlement to be “binding” amounts to
incorporating the deed of settlement into the divorce order. In Brandtner v Brandtner 13 the
Witwatersrand Local Division of the High Court (now the Gauteng Local Division of the High
Court, Johannesburg) held that declaring the deed of settlement binding simply means that
the court is issuing a declaratory order that the agreement is binding as between the parties
and does not amount to incorporating it into the divorce order. However, in Tshetlo v
15 16
Tshetlo, 14 Lebeloane v Lebeloane and JW v HW the same division of the High Court held the
opposite.
If the settlement agreement is made an order of court, the clauses in the agreement which
are capable of immediate execution can be enforced as the terms of a court order and not
merely as contractual terms. Although making the settlement agreement an order of court
does not remove the contractual basis of the agreement, the court order entails that the terms
17
of the agreement can be enforced by way of the remedies available to a judgment creditor.
For example, if one of the parties fails to comply with the order, immediate execution against
his or her property is possible and he or she can be convicted of contempt of court. The court
may also instruct a third party nominated by it to render performance to the judgment
debtor, or order the Registrar of Deeds to sign documents which are required for the transfer
18
of immovable property. If an obligation is conditional on some or another event, the court
may make an order compelling the judgment debtor to comply with the terms of the settle-
19
ment agreement.
________________________

6 2003 (3) SA 628 (T).

7 S 15(1) of the Constitution of the Republic of South Africa, 1996.
8 PL v YL 2013 (6) SA 28 (ECG).
9 Ibid par 49.
10 PL v YL 2013 (6) SA 28 (ECG).
11 Ibid par 17. These divisions include the Gauteng and Gauteng Local Divisions of the High Court and the
Western Cape Division of the High Court: Thutha v Thutha 2008 (3) SA 494 (Tk).
12 Practice Directive 15 of the KwaZulu-Natal High Court. On incorporation of settlement agreements, see
further Hothey-Mahomed 2014 THRHR 334.
13 1999 (1) SA 866 (W).
14 [2000] 4 All SA 375 (W), 2000 (4) SA 673 (W).
15 [2000] 4 All SA 525 (W).
16 2011 (6) SA 237 (GSJ).
17 Swadif (Pty) Ltd v Dyke 1978 (1) SA 928 (A); PL v YL 2013 (6) SA 28 (ECG).
18 PL v YL 2013 (6) SA 28 (ECG).
19 Ibid. See also DS v RM 2015 (3) SA 424 (WCC), where the court made an order directing the sale by auction
of immovable property belonging to the former spouses and distribution of the proceeds in accordance
with the terms of the settlement agreement.
 Chapter 12: The patrimonial consequences of divorce 129

A settlement agreement or a term in a settlement agreement that has been made an order
20
of court can be amended, rescinded or suspended by the parties by mutual consent. If either
party refuses to agree to the amendment, rescission or suspension, the court may be
approached in terms of section 8(1) of the Divorce Act if the dispute relates to guardianship,
care, contact or maintenance and there is sufficient reason for the variation, rescission or
suspension.21 If the dispute relates only to maintenance, the Maintenance Court may be
approached in terms of the Maintenance Act 99 of 1998.22 Being a contract, the settlement
agreement may also be set aside on any of the grounds which apply to the setting aside of a
contract, such as misrepresentation. Furthermore, if the deed of settlement does not correctly
reflect the parties’ true agreement, the court may order rectification of the deed. If the
settlement agreement or its terms are not made an order of court, the agreement is merely a
contract and cannot be enforced in the same way as an order of court. This means, inter alia,
that if one of the parties fails to comply with the provisions of the deed of settlement, his or
her property cannot immediately be attached in execution of the agreement and the party
cannot be imprisoned for contempt of court. The parties can agree to vary or rescind the
agreement, but if either of them refuses to agree to the variation or rescission, the original
agreement operates as it stands, unless the normal rules of the law of contract permit the
setting aside of the contract. If the deed of settlement does not correctly reflect the parties’
true agreement, the court may order rectification of the deed.
As a settlement agreement is, in essence, a contract, the rules which apply to the interpreta-
23
tion of contracts apply to the interpretation of settlement agreements. For the purposes of
the interpretation of the agreement it does not matter whether or not the agreement was
made an order of court in terms of section 7(1), because the essence of the agreement re-
24
mains the same.
With the exception of the discussions in chapter 13 below on waiver of the right to claim
rescission, suspension or variation of a maintenance order, and termination of a maintenance
order, the rules which are discussed in this chapter and the next two chapters relate mainly to
the position if the spouses do not enter into a settlement agreement. However, these rules
also play a role in respect of settlement agreements, as the spouses bargain in the shadow of
the law. In other words, when negotiating their settlement agreement, the parties usually
adopt their respective bargaining positions in the light of the legal rules on division of prop-
erty, maintenance, parental responsibilities and rights, and so forth.25

12.3 The patrimony of the spouses

12.3.1 General
The effect of divorce on the division of the spouses’ property depends on whether the spous-
es married in or out of community of property and, if the latter, whether the accrual system
applies to their marriage. The rules which are set out in chapters 6 and 7 above determine
________________________

20 But see DS v RM 2015 (3) SA 424 (WCC), where it was held that a settlement agreement that has been
made an order of court may not be varied unless the variation is authorised by the court. This dictum is at
odds with the view that making a settlement agreement an order of court does not remove the contractual
basis of the agreement: see above in this chapter. The court in DS was, it must be stated, not adamant that
the settlement agreement may not be varied without court intervention, for it held that if it were wrong on
the principle that parties may not vary or delete parts of an incorporated settlement agreement, the facts of
the particular case did not prove that the parties had varied the agreement. Therefore, neither of them
could rely on the alleged variation.
21 See further chs 13 and 14 below. On the effect of a non-variation clause in a deed of settlement, see ch 13
below.
22 See ch 5 above.
23 Engelbrecht v Senwes Ltd 2007 (3) SA 29 (SCA).
24 Odgers v De Gersigny 2007 (2) SA 305 (SCA), Heaton and Kruger Casebook on Family Law case [56].
25 The phrase “bargaining in the shadow of the law” was coined by Mnookin and Kornhauser 1979 Yale LJ
950.
130 South African Family Law

which assets and liabilities fall into each spouse’s estate, or into the joint estate if the spouses
married in community of property, and which assets are to be excluded for purposes of
calculating the accrual in a spouse’s estate.26 In addition, the Divorce Act makes special
provision for the division of pension interests upon divorce. The sharing of pension interests
is discussed under the next heading.
The division of the spouses’ assets further depends on whether or not the court orders for-
feiture of patrimonial benefits. The rules regarding forfeiture are explained below in this
chapter. In certain marriages out of community of property, the court also has a discretion to
order redistribution of assets, as is explained below in this chapter.
If the court does not grant an order for forfeiture of benefits, the divorce order in respect
of a marriage in community of property automatically operates as an order for division of the
joint estate. If the spouses cannot reach agreement on how the estate is to be divided, the
court may either order the division it deems just or appoint a liquidator (or receiver) to
divide the estate.27 If the spouses do not use the services of a liquidator, the division of the
joint estate must be jointly administered by them and neither of them may alienate any of the
28
assets of the former joint estate without the other’s cooperation.
Finally, it should be noted that although divorce is no longer fault-based, misconduct still
plays a role in respect of the patrimonial consequences of divorce, as fault is taken into
account in respect of forfeiture of benefits and can also be taken into account in respect of
redistribution of assets.29 It can also still be considered in respect of spousal maintenance.30

12.3.2 Pension interests31

(a) General
A pension benefit is not an asset in a person’s estate, because the right to claim the benefit
only vests in the person when the benefit accrues to him or her (which usually occurs when
he or she reaches a specific age, retires, resigns or is dismissed or retrenched). However, in
terms of section 7(7)(a) of the Divorce Act, a spouse’s “pension interest” is deemed to be part
of his or her assets upon divorce for purposes of determining the patrimonial benefits to
which the spouses may be entitled.32 Spouses’ pension interests are therefore included for
purposes of dividing their assets and when calculating the value of their estate(s) for purposes
of maintenance.
Section 7(7)(a) of the Divorce Act expressly states that a spouse’s pension interest “shall …
be deemed to be part of his assets” for purposes of “the determination of the patrimonial
benefits to which the parties to any divorce action may be entitled”. The word “shall” signifies
________________________

26 If, at the time of the divorce, the spouses are the sole members of a close corporation which has served its
purpose, the court will order the winding up of the close corporation if the spouses cannot agree on how to
proceed: Moore v Nouveau Investments CC [2008] 4 All SA 566 (W). For criticism of the traditional view on
the property which can be divided upon divorce, which excludes many forms of “new property” such as
career assets and earning power, see eg Clark and Goldblatt in Bonthuys and Albertyn (eds) Gender, Law
and Justice 222–223; Sinclair 69–72; Bonthuys 2001 THRHR 199–200; Heaton 2005 SAJHR 570–573.
27 See eg Dhanwanthi v Shanduth 1961 (2) SA 692 (N); Van Onselen v Kgengwenyane 1997 (2) SA 423 (B); Ex
parte Randles: In re: King v King [1998] 2 All SA 412 (D); Maharaj v Maharaj [2002] 2 All SA 34 (D), 2002 (2)
SA 648 (D); Kgopane v Kgopane (1819/2011) [2012] ZANWHC 58, 16 August 2012. Nkosi Nov 2011 De Rebus
22 argues that either spouse has the right to seek the appointment of a liquidator if the spouses cannot
agree on division of the estate, but that the court is not obliged to appoint a liquidator if there are good
reasons for refusing to do so, such as that the value of the joint estate is too low to justify the appointment.
28 Gugu v Zongwana [2014] 1 All SA 203 (ECM).
29 See below in this chapter. See ch 11 above on the movement from fault-based to no-fault divorce.
30 See ch 13 below.
31 For a brief explanation of the difference between endowment policies, retirement annuities and pension
fund benefits, and the importance of distinguishing between these financial instruments when drawing up
a settlement agreement, see Reed Sept 2005 De Rebus 20.
32 This provision came into operation on 1 Aug 1989 (the date of the coming into operation of s 2 of the
Divorce Amendment Act 7 of 1989).
 Chapter 12: The patrimonial consequences of divorce 131

an imperative. Thus, as the court held in Maharaj v Maharaj,33 section 7(7)(a) “states quite
unequivocally” that a pension interest is deemed to be part of the assets of a divorcing spouse
in the determination of the patrimonial benefits to which the spouses may be entitled. As a
result, the value of the pension interest is automatically included for purposes of determining
the proprietary consequences of the divorce even if the divorce order does not expressly
34
mention the pension interest. This view has also been adopted in Fritz v Fundsatwork Umbrella
35 36 37 38
Pension Fund, Macallister v Macallister, Kotze v Kotze, and Motsetse v Motsetse. However, in
Sempapalele v Sempapalele, 39 the court wrongly adopted the view that the provision that the
pension interest of a party is deemed to be an asset in his or her estate for purposes of deter-
mining the patrimonial benefits to which he or she may be entitled upon divorce means that
the interest is not ordinarily part of the joint estate of a couple who married in community of
property, but that it may be taken into account upon divorce. The court concluded that the
pension interest must be dealt with expressly at the time of the divorce, as it does not auto-
40
matically fall into the joint estate. In ML v JL the Free State Division of the High Court made
statements that seem to support the view in Sempapalele. However, as the same division of the
41
High Court subsequently indicated in Motsetse v Motsetse when it rejected ML v JL, the judg-
ment in ML v JL “is not an example of clarity”.
(b) Meaning and calculation of “pension interest”
In terms of the definition of “pension interest” read with the definition of “pension fund” in
section 1 of the Divorce Act, the value of a spouse’s pension interest is calculated in the
following manner:42
(1) If the spouse is a member of a pension fund other than a retirement annuity fund as
defined in section 1(1) of the Pension Funds Act 24 of 1956, the pension interest is the
benefit to which the spouse would have been entitled had he or she terminated his or
her membership of the fund on the date of the divorce by resigning from his or her em-
ployment.
(2) If the spouse is a member of a retirement annuity fund, the pension interest is equal to
all the spouse’s contributions to the fund up to the date of the divorce, together with
annual simple interest on those contributions calculated at the rate the Minister of Jus-
tice and Constitutional Development prescribes in terms of the Prescribed Rate of Inter-
est Act 55 of 1975.43
If the member spouse’s employment ceased before the divorce and the member transferred
his or her accrued pension benefit to an approved pension preservation fund or provident
preservation fund, the pension interest is equal to the benefits to which the spouse would

________________________

33 [2002] 2 All SA 34 (D), 2002 (2) SA 648 (D).

34 See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 74, 77; Van Schalkwyk 2002
De Jure 173, 175; Sonnekus 2011 TSAR 794–795; Van Schalkwyk 2013 De Jure 849; Marumoagae 2014 PELJ
2500–2510. See further Marumoagae 2014 (1) Speculum Juris 55. If the joint estate of spouses who were
married in community of property has already been divided after divorce, the court cannot grant an order
declaring that the pension interest of one of the spouses must be deemed to be part of the joint estate, be-
cause there no longer is a joint estate into which the pension interest can be deemed to fall: Fritz v Fundsat-
work Umbrella Pension Fund 2013 (4) SA 492 (ECP).
35 2013 (4) SA 492 (ECP).
36 [2013] JOL 30404 (KZD).
37 [2013] JOL 30037 (WCC).
38 [2015] 2 All SA 495 (FB).
39 2001 (2) SA 306 (O). The approach in Sempapalele is supported by Davey Sept 2013 De Rebus 26.
40 (3981/2010) [2013] ZAFSHC 55, 25 April 2013.
41 Par 17.
42 See further Ex parte Randles: In re: King v King [1998] 2 All SA 412 (D).
43 The total amount of annual simple interest may not exceed the fund return on the non-member spouse’s
portion of the member spouse’s pension interest: s 37D(5) of the Pension Funds Act 24 of 1956.
132 South African Family Law

have been entitled in terms of the rules of the preservation fund had his or her membership
44
of the fund terminated on the date of the divorce.
As the Government Employees Pension Fund and the Post Office Retirement Fund are
distinct statutory bodies, the pension interests of members of these funds do not fall within
the ambit of the definition of “pension interest” set out above. For this reason, spouses of
members of these retirement funds initially could not share in their spouses’ pension inter-
ests on divorce. The inequality occasioned by the differentiation between spouses of members
of pension funds as defined in the Pension Funds Act and spouses of members of the Gov-
ernment Employees Pension Fund and the Post Office Retirement Fund was successfully
45
challenged on constitutional grounds. As a result, the Government Employees Pension Law,
1996 and the Post and Telecommunication-related Matters Act 44 of 1958 were amended to
entitle spouses of members of the Government Employees Pension Fund and the Post Office
46
Retirement Fund to claim their share of their spouses’ pension interests on divorce.
It is only the amount of the pension interest as at the date of the divorce that is deemed to
47
be part of the member’s assets. Subsequent interest and growth are not included. Conse-
quently, even if a non-member spouse is awarded 100 percent of the member’s pension or
100 percent of the value of the pension or retirement annuity at maturity, he or she is entitled
only to the amount as at the date of the divorce, because this is all the statutory definition of
48
“pension interest” provides for.
The amount of a spouse’s pension interest is reduced by any part of the pension interest to
which another person is entitled by virtue of a previous divorce.49 In other words, if someone
is getting divorced for a second time, the amount of the pension interest deemed to be part
of his or her estate for purposes of the second divorce is reduced by any amount of the
pension interest which has already been awarded to his or her first spouse.
(c) The difference between a pension interest and a pension benefit
It is important to bear in mind that there is a difference between a pension interest and a
pension benefit. A pension interest is an interest that has not yet accrued to the member by the
time of the divorce. It therefore excludes a withdrawal benefit that accrues to a spouse prior
50
to divorce. Section 7(7) and (8) of the Divorce Act relates only to a pension interest.

________________________

44 S 37D(6) of the Pension Funds Act. If the spouse deferred payment of his or her pension benefit until his
or her actual retirement without transferring the accrued pension benefit to an approved preservation
fund, the pension benefit is treated no differently from any other asset that belongs to the spouse at the
time of the divorce, for in such event the date of the member spouse’s entitlement to the pension benefit
has not been postponed; it is merely the date of payment of the benefit that has been postponed. See fur-
ther Eskom Pension and Provident Fund v Krugel 2012 (6) SA 143 (SCA).
45 Wiese v Government Employees Pension Fund 2012 (6) BCLR 599 (CC); Ngewu v Post Office Retirement Fund 2013
(4) BCLR 421 (CC). See also Minister of Communications v Ngewu 2014 (3) BCLR 364 (CC).
46 S 1 of the Government Employees Pension Law now defines “pension interest” as the benefit to which a
member of the Government Employees Pension Fund would have been entitled had he or she terminated
his or her membership of the fund on the date of the divorce by resigning from his or her employment.
The Post and Telecommunication-related Matters Act does not define “pension interest” but appears im-
plicitly to incorporate the definition that appears in s 1 of the Divorce Act by referring to orders made in
terms of s 7(8)(a) of the Divorce Act (such orders obviously pertain to pension interests as defined in s 1 of
the Divorce Act): ss 10B and 10F of the Post and Telecommunication-related Matters Act.
47 However, the non-member spouse is entitled to the accrual of fund return on his or her portion of the
pension interest at fund return from the date on which the fund is informed of the non-member’s choice
as to whether the amount must be paid to him or her or be transferred to a pension fund of his or her
choice until the date on which payment or transfer is effected: s 37D(4)(c)(ii) of the Pension Funds Act.
48 Old Mutual Life Assurance Co (SA) Ltd v Swemmer 2004 (5) SA 373 (SCA).
49 S 7(7)(b) of the Divorce Act; see also s 24A(2)(c) of the Government Employees Pension Law; s 10F(2)(j)
of the Post and Telecommunication-related Matters Act.
50 Eskom Pension and Provident Fund v Krugel 2012 (6) SA 143 (SCA).
 Chapter 12: The patrimonial consequences of divorce 133
51
A pension benefit is a benefit (withdrawal benefit) that has already accrued to the member.
This benefit falls into the spouse’s estate (or the joint estate if the spouses are married in
community of property) just like any other asset which belongs to that spouse does.52 If a
spouse receives a lump-sum pension payment as well as a monthly pension as a result of the
termination of his or her membership of the fund before the divorce, both amounts fall into
his or her estate (or into the joint estate) at the time of the divorce and must be taken into
account upon divorce.53
(d) Payment or transfer of the non-member spouse’s portion of the pension interest
Section 7(8)(a) of the Divorce Act empowers the court granting a decree of divorce to order
the member’s fund to pay any part of the pension interest which is due to the member’s
spouse directly to the non-member spouse when the pension accrues to the member spouse.54
In other words, the fund may be ordered to pay the non-member spouse’s portion directly to
him or her when the member spouse becomes entitled to his or her pension or retirement
annuity. The non-member spouse may choose to have his or her portion of the member’s
pension interest transferred to a pension fund of his or her choice instead of having it paid
55
directly to him or her.
If the pension fund falls under the Pension Funds Act, the non-member’s portion of the
pension interest is deemed to accrue to the member on the date of the divorce, unless the
56
spouses divorced before 13 September 2007. In the latter event, the non-member’s portion
57
is deemed to have accrued to the member on 13 September 2007. If the spouse is a member
of the Government Employees Pension Fund, the non-member’s portion is deemed to accrue
to the member on the date of the divorce, unless the spouses divorced before 14 December
58
2011. In the latter event, the non-member’s portion is deemed to have accrued to the
59
member on 14 December 2011. If the spouse is a member of the Post Office Retirement
Fund, the non-member’s portion is deemed to accrue to the member on the date of the
60
divorce, unless the spouses divorced before 27 January 2014. In the latter event, the non-
61
member’s portion is deemed to have accrued to the member on 27 January 2014.
A non-member spouse who is awarded a portion of his or her spouse’s pension interest
does not become the owner of the policy or un-accrued pension benefits to which his or her
portion of the pension interest relates.62 Nor does he or she become a member or beneficiary
in relation to the pension fund.63 Thus the non-member spouse cannot exercise any of the

________________________

51 Logically, a pension benefit becomes part of the estate of a spouse once the spouse becomes entitled to
claim the benefit. If the benefit is part of the spouse’s estate, there is no reason to deem it to be part of his
or her assets (as s 7(7)(a) does in respect of a pension interest): see also Heaton in Heaton (ed) Law of Di-
vorce and Dissolution of Life Partnerships 79 fn 130.
52 De Kock v Jacobson 1999 (4) SA 346 (W); Government Employees Pension Fund v Naidoo [2006] 3 All SA 332
(SCA), 2006 (6) SA 304 (SCA); Elesang v PPC Lime Ltd 2007 (6) SA 328 (NC).
53 De Kock v Jacobson 1999 (4) SA 346 (W).
54 See also s 37D(1)(d)(i) of the Pension Funds Act; ss 21(1) and 24A(1) of the Government Employees
Pension Law; ss 10B(1) and 10F(1) of the Post and Telecommunication-related Matters Act. The pension
fund must be named in the order or be identifiable from it: s 37D(4)(a)(i)(aa) of the Pension Funds Act.
In ML v JL (3981/2010) [2013] ZAFSHC 55, 25 April 2013 the court seems to have been ignorant of the
fact that the pension fund need only be identifiable – not identified. On the issue of when a pension fund
is identifiable from a court order, see Mothupi 2010 SA Merc LJ 220–225.
55 S 37D(4)(b)(i) of the Pension Funds Act; s 24A(2)(e) of the Government Employees Pension Law; s
10F(2)(e) of the Post and Telecommunication-related Matters Act.
56 S 37D(4)(a) of the Pension Funds Act.
57 S 37D(4)(d) of the Pension Funds Act.
58 S 24A(2)(a) of the Government Employees Pension Law.
59 S 24A(2)(j) of the Government Employees Pension Law.
60 S 10F(2)(a) of the Post and Telecommunication-related Matters Act.
61 S 10F(2)(j) of the Post and Telecommunication-related Matters Act.
62 Old Mutual Life Assurance Co (SA) Ltd v Swemmer 2004 (5) SA 373 (SCA).
63 S 37D(4)(c)(i) of the Pension Funds Act.
134 South African Family Law

rights of the member spouse, such as anticipating or postponing the date on which the
pension or retirement annuity will fall due.64
The court is not compelled to make an order in terms of section 7(8)(a); it has a discretion
65
in this regard. If the court decides not to make an order, this does not mean – as the court
66
incorrectly held in JW v SW – that the non-member spouse loses his or her right to share in
the other spouse’s pension interest. Section 7(8)(a) deals with the court’s power to make an
order compelling the pension fund to pay the non-member spouse’s portion of the member’s
pension benefit directly to the non-member. It does not deal with the issue of whether the
67
non-member is entitled to share in the member’s pension. The latter issue is governed by
section 7(7), which, as indicated above, unequivocally deems the pension interest to be part
of the member’s assets on divorce for purposes of determining the patrimonial benefits to
which the spouses may be entitled. Consequently, a court’s refusal to make an order in terms
of section 7(8)(a) cannot deprive the non-member of his or her right to share in the mem-
68
ber’s pension interest.
Because section 7(7)(a) deems spouses’ pension interests to be part of their assets for pur-
poses of determining the patrimonial benefits to which they may be entitled on divorce, the
court need not expressly make an order in respect of the spouses’ pension interests. The
presence or absence of an order dealing with the pension interests does not change the fact
that the pension interests are, by virtue of section 7(7)(a), deemed to be part of the mem-
ber’s assets on divorce for purposes of determining the patrimonial benefits to which the
spouses may be entitled. However, the absence of an order in terms of section 7(8)(a) has far-
reaching consequences in respect of claiming the non-member’s portion of the member’s
pension interest. If the court does not make an order in terms of section 7(8)(a), the non-
member cannot claim any portion of the member’s pension interest from the pension fund,
because pension funds are, by legislation, only permitted to deduct specified amounts from a
member’s pension benefit and to pay them to somebody other than the member. In terms of
the various Acts governing pension funds, an order in terms of section 7(8)(a) is required to
enable the non-member to compel the member’s pension fund to pay his or her portion of
69
the member’s pension interest to him or her. In the absence of an order in terms of section
7(8)(a), the non-member would have to claim his or her portion of the member’s pension
interest from the member personally or arrive at some other arrangement with the member
70
that takes account of the non-member’s portion of the member’s pension interest.
(e) Excluded marriages
The provisions of the Divorce Act regarding pension interests do not apply to spouses who
married on or after 1 November 1984 in terms of an antenuptial contract which excludes
community of property, community of profit and loss and the accrual system.71 In other words,
pension interests are not taken into account on divorce if the spouses married subject to com-
plete separation of property on or after 1 November 1984.

________________________

64 Old Mutual Life Assurance Co (SA) Ltd v Swemmer 2004 (5) SA 373 (SCA).
65 JW v SW 2011 (1) SA 545 (GNP).
66 2011 (1) SA 545 (GNP).
67 Van Niekerk A Practical Guide to Patrimonial Litigation in Divorce Actions par 7.2.4.1; Heaton 2011 Annual
Survey of South African Law 448; Van Schalkwyk 2013 De Jure 853.
68 See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 77.
69 S 37D(1) of the Pension Funds Act; s 21(1) of the Government Employees Pension Law; s 10B of the Post
and Telecommunication-related Matters Act.
70 Macallister v Macallister [2013] JOL 30404 (KZD); Kgopane v Kgopane (1819/2011) [2012] ZANWHC 58, 16
August 2012.
71 S 7(7)(c) of the Divorce Act.
 Chapter 12: The patrimonial consequences of divorce 135

12.4 Forfeiture of patrimonial benefits

12.4.1 The requirements for a forfeiture order
Section 9(1) of the Divorce Act empowers the court that grants a divorce order on the
72
ground of the irretrievable breakdown of the marriage to order total or partial forfeiture of
73
benefits, taking into account the following factors:
(1) The duration of the marriage.
(2) The circumstances which led to the breakdown of the marriage.
(3) Any substantial misconduct on the part of either spouse.
In Wijker v Wijker 74 the Appellate Division (now the Supreme Court of Appeal) held that the
abovementioned factors need not all be present and need not be viewed cumulatively. Con-
75
sequently, they need not all be alleged. The Appellate Division further indicated that alt-
hough misconduct was no longer a requirement for obtaining a forfeiture order, the
introduction of no-fault divorce did not do away with fault as a factor in respect of forfeiture
orders.76 It held that the fact that section 9(1) lists substantial misconduct as a separate factor
does not mean that misconduct cannot also be considered in the context of the circumstanc-
es which led to the breakdown of the marriage. The court further held that “substantial
misconduct” can include conduct which has nothing to do with the breakdown of the mar-
riage. It warned, however, that too much importance should not be attached to misconduct
which is not of a serious nature.77
In terms of section 9(1), an order for forfeiture of benefits may only be granted if the court
is satisfied that in the absence of the order, one spouse will be unduly benefited in relation to
the other. The decision in Wijker v Wijker is important in this regard too. The Appellate Div-
ision held that in deciding whether an order for forfeiture should be made the court should
first determine whether or not the party against whom the order is sought will in fact be
78
benefited if the order is not made. This is a purely factual issue. Once it has been established
that that party will indeed benefit, the court must determine whether the benefit is undue.
Although this involves a value judgement, the value judgement is made after the court has
considered the three factors mentioned in section 9(1).79
The court may not use a forfeiture order as a mechanism for deviating from the normal
consequences of the spouses’ matrimonial property system and achieving a redistribution of
assets simply because it considers this fair and just. In Wijker the court a quo had granted a
forfeiture order against the husband as it was considered unfair that he should share in the
________________________

72 S 9(1) and (2) expressly provides that a forfeiture order may not be made if the divorce is granted on the
ground of the mental illness or continuous unconsciousness of the defendant.
73 S 9 does not indicate whether the court may make a forfeiture order of its own accord. On the basis of the
presumption that the legislator does not intend to amend the law any more than is necessary, s 9 should be
interpreted as not conferring this power on the court: PL v YL 2013 (6) SA 28 (ECG); see also Barnard 78;
Church and Church in Church (ed) LAWSA Marriage par 90; Glover in Clark (ed) Family Law Service par D9;
Hahlo, 5th edn, 373; Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 91; Lee and
Honoré par 131 fn (n); Wille’s Principles 339 fn 1011. On the three factors listed in s 9, see further
Marumoagae 2014 De Jure 93–94.
74 1993 (4) SA 720 (A), Heaton and Kruger Casebook on Family Law case [44].
75 Engelbrecht v Engelbrecht 1989 (1) SA 597 (C); Wijker v Wijker 1993 (4) SA 720 (A).
76 See also Singh v Singh 1983 (1) SA 781 (C).
77 See also Klerck v Klerck 1991 (1) SA 265 (W). On the conflicting decisions as to whether domestic violence
constitutes gross misconduct or substantial misconduct, see Bonthuys in Heaton (ed) Law of Divorce and
Dissolution of Life Partnerships 491–492.
78 The spouse who seeks the forfeiture order must establish the nature and extent of the benefit that is to be
forfeited: Engelbrecht v Engelbrecht 1989 (1) SA 597 (C); JW v SW 2011 (1) SA 545 (GNP); MG v RG 2012 (2)
SA 461 (KZP).
79 See also Engelbrecht v Engelbrecht 1989 (1) SA 597 (C). On the meaning of “undue benefit”, see further
Marumoagae 2014 De Jure 97–99.
136 South African Family Law

assets of a company his wife had built up and to which he had contributed little. The Appel-
late Division rejected application of the principle of fairness in the context of forfeiture. Van
Coller JA held that sight must not be lost of what the matrimonial property system which
operates in the marriage entails. He pointed out that the fact that in a marriage in communi-
ty of property one spouse shares in the other’s successful venture is a consequence of the
80
particular matrimonial property system. He held that to say that this result is unfair is not
only at odds with the basic concept of community of property but also with section 9(1) of the
Divorce Act, because section 9(1) does not provide for the application of a principle of fair-
ness. Only the three factors that are listed in section 9(1) may be taken into account. He fur-
ther held that even if it was assumed that the husband had not made much of a contribution
to the business from which he stood to benefit, this did not necessarily mean that the benefit
was undue.81 In this case, the Appellate Division found that the husband would not be unduly
benefited. In Botha v Botha 82 the Supreme Court of Appeal referred to its decision in Wijker
and reiterated that when exercising its value judgement on whether or not to order forfei-
ture, the court must confine itself to the factors which are mentioned in section 9(1). Because
section 9(1) does not contain the catch-all phrase “any other factor”, it is impermissible to
83
consider any other factor, such as fairness or the reason why particular assets were acquired.

12.4.2 Benefits which can be forfeited

The generally accepted view is that forfeiture of benefits does not entail that a spouse loses his
or her own assets. It merely entails that the spouse loses the claim he or she has to financial
benefits generated by the other spouse.84 Thus, for example, if the marriage is in community
of property, the spouse against whom a court orders total forfeiture receives only those assets
he or she brought into the joint estate, unless he or she brought more than half the assets
into the joint estate. In the latter event, he or she receives half the joint estate. In essence,
therefore, a forfeiture order is effective only if it is made against the poorer spouse.85 The
same problem arises if the accrual system applies to the marriage, for then the spouse whose
estate shows the larger accrual retains his or her half of the difference between the accrual in
the spouses’ respective estates.86

________________________

80 See also JW v SW 2011 (1) SA 545 (GNP).

81 See also Soupionas v Soupionas 1983 (3) SA 757 (T); Engelbrecht v Engelbrecht 1989 (1) SA 597 (C).
82 [2006] 2 All SA 221 (SCA), 2006 (4) SA 144 (SCA).
83 See also Marumoagae 2015 Obiter 232, who argues that the High Court erroneously used fairness to arrive at
its decision in Molapo v Molapo (4411/10) [2013] ZAFSHC 29 (14 March 2013).
84 See eg Smith v Smith 1937 WLD 126; Ex parte De Beer 1952 (3) SA 288 (T); Steenberg v Steenberg 1963 (4) SA
870 (C); Rousalis v Rousalis 1980 (3) SA 446 (C); Leeb v Leeb [1999] 2 All SA 588 (N); JW v SW 2011 (1) SA
545 (GNP); Barratt (ed) Persons and the Family 339–341; Glover in Clark (ed) Family Law Service par D9;
Hahlo, 5th edn, 378–379; Skelton and Carnelley (eds) Family Law 155, 157; Van der Vyver and Joubert 673;
Van Niekerk A Practical Guide to Patrimonial Litigation in Divorce Actions par 3.3.2; Visser and Potgieter 180;
Wille’s Principles 340; Heaton 2005 SAJHR 557; Marumoagae 2015 Obiter 238.
85 Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 93; Heaton 2005 SAJHR 557. But see
Bonthuys 2014 SALJ 439, who argues that the judicial interpretation which protects the wealthier spouse
from forfeiture is not in keeping with Roman-Dutch law and early South African case law.
86 Sinclair 1981 SALJ 474. But see Hahlo, 5th edn, 385, who states that the court may order that no accrual
sharing is to take place, that accrual sharing is to take place only to the extent that it benefits the spouse in
whose favour the order is made, or that all accruals or the greater part of the accruals must be awarded to
the spouse in whose favour the order is made. In other words, the court may make a forfeiture order which
amounts to a variation of the spouses’ matrimonial property system if the accrual system applies to their
marriage. (See also Roothman 1994 De Rebus 356.) Whether this view is correct is doubted, especially in
view of Wijker v Wijker 1993 (4) SA 720 (A) and Botha v Botha [2006] 2 All SA 221 (SCA), 2006 (4) SA 144
(SCA) where it was held that only the three factors which are listed in s 9(1) are relevant when deciding
whether or not a forfeiture order is to be made and that fairness cannot be used in order to deviate from
the matrimonial property system which operates in the marriage. See also Heaton in Heaton (ed) Law of
Divorce and Dissolution of Life Partnerships 93 fn 229; Heaton 2005 SAJHR 557 fn 32.
 Chapter 12: The patrimonial consequences of divorce 137

In a marriage in community of property, the benefits which can be forfeited include the
right to occupy premises in terms of a tenancy, residential permit or statutory lease which was
conferred on the spouse against whom the forfeiture order operates but in respect of which
the other spouse paid the rent.87 Benefits which can be forfeited in the case of a marriage out
of community of property include the right to share in the accrual of the other spouse’s
estate;88 benefits by virtue of a succession clause; and marriage settlements.89 For example, if a
husband made a marriage settlement to his wife and the promised asset was transferred to the
wife during the subsistence of the marriage, the court may order the wife to return the asset.
If the asset was never transferred, the court may make an order that the wife may no longer
enforce the donation.
Whether benefits acquired during the subsistence of the marriage and which were not con-
ferred in the couple’s antenuptial contract can be forfeited, is unclear. In some cases it has
been held that the patrimonial benefits are fixed at marriage by the terms of the parties’
antenuptial contract and that donations which fall outside the terms of the antenuptial
contract cannot be forfeited.90 In other cases it has, however, been held that benefits obtained
during the subsistence of the marriage can also be forfeited.91 It must, however, be borne in
mind that if a transaction that was made outside the terms of the antenuptial contract was a
92
donation proper and the donee displayed gross ingratitude towards the donor or was guilty
of ill-treatment of the donor, the donor need not request forfeiture of the donation, because
93
he or she may simply revoke the donation.
Only those benefits which exist at the time of the divorce can be forfeited. Thus, for exam-
ple, if a spouse is ordered to forfeit a retirement annuity, it is only the value of the annuity as
a pension interest at the date of the divorce which is forfeited.94 Consequently, the forfeiture
order does not mean that the spouse in whose favour the forfeiture order operates must
receive the full proceeds of the retirement annuity when it falls due, including the growth
that has been accumulated after the divorce.95
________________________

87 Persad v Persad 1989 (4) SA 685 (D), Heaton and Kruger Casebook on Family Law case [46]; Toho v Diepmeadow
City Council 1993 (2) SA 679 (W); Moremi v Moremi 2000 (1) SA 936 (W).
88 S 9 of the Matrimonial Property Act 88 of 1984. On the accrual system, see ch 7 above.
89 Watt v Watt 1984 (2) SA 455 (W), Heaton and Kruger Casebook on Family Law case [45]. See ch 7 above on
succession clauses and marriage settlements.
90 See eg Dawson v Dawson (1892) 9 SC 446; Kilroe v Kilroe 1928 WLD 112; Watt v Watt 1984 (2) SA 455 (W).
This view is supported by Sinclair and Kaganas 1984 Annual Survey of South African Law 110; see also Glover
in Clark (ed) Family Law Service par D9; Van der Vyver and Joubert 669, 670; Wille’s Principles 341.
91 See eg Kohn v Kohn 1914 WLD 9; Martin v Martin 1925 EDL 264. See also Koza v Koza 1982 (3) SA 462 (T)
in which the court accepted, without deciding the issue, that patrimonial benefits are not restricted to
those conferred in the antenuptial contract. Visser and Potgieter 184 and Hahlo 1984 SALJ 456 support the
wide interpretation of “benefits of the marriage” as benefits flowing from the marriage as a continuing rela-
tionship. Van Niekerk A Practical Guide to Patrimonial Litigation in Divorce Actions par 2.6 does not provide a
clear answer on whether the benefits are restricted to those arising upon marriage. He states that parties
who are married out of community of property can claim forfeiture “of benefits arising upon marriage,
which benefits can potentially include donations in terms of an antenuptial contract [and] donations made
during the course of the marriage”.
92 A donation proper is one that is made out of sheer liberality or disinterested benevolence, and not for
another reason, such as a sense of duty or a desire to evade creditors. Eg, if a husband transfers a house
and/or motor vehicle to his wife, the transaction might not qualify as a donation proper because the trans-
fer might be the result of the husband’s sense of duty towards his wife: see eg Kay v Kay 1961 (4) SA 257
(A); Grasso v Grasso 1987 (1) SA 48 (C).
93 Voet 39.5.4; Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 94; Van Niekerk A
Practical Guide to Patrimonial Litigation in Divorce Actions pars 2.7.5, 3.4.3.2; Wille’s Principles 1036–1037; Ow-
ens in Joubert et al (eds) LAWSA Donations par 310. A marriage settlement may not be revoked, because it is
not a donation proper – it is made with a view to the marriage and not out of sheer liberality or disinterest-
ed benevolence: Van Niekerk op cit par 3.4.3.2; Owens op cit par 321.
94 Old Mutual Life Assurance Co (SA) Ltd v Swemmer 2004 (5) SA 373 (SCA). On the meaning of “pension
interest”, see above in this chapter.
95 Old Mutual Life Assurance Co (SA) Ltd v Swemmer 2004 (5) SA 373 (SCA).
138 South African Family Law

12.5 Redistribution of assets

12.5.1 The introduction of redistribution as a reformative and
remedial measure
In chapter 7 above it is indicated that the accrual system was introduced, inter alia, because a
spouse who married subject to complete separation of property did not have a right to share
in the assets the other spouse acquired during the subsistence of the marriage. As the accrual
system was not imposed retroactively, the legislator inserted section 7(3) to (6) into the
Divorce Act96 to assist spouses who married subject to complete separation of property prior to
the commencement of the Matrimonial Property Act 88 of 1984 or the Marriage and Matri-
monial Property Law Amendment Act 3 of 1988. Section 7(3) to (6) empowers the court, in
limited circumstances, to make an order that the assets, or part of the assets of one spouse be
transferred to the other spouse if the court considers this to be just. These provisions intro-
duced a novel concept, namely redistribution of assets upon divorce, into our law. The pur-
pose of this reformative and remedial measure was to remedy the inequity
which could flow from the failure of the law to recognise a right of a spouse upon divorce to
claim an adjustment of a disparity between the respective assets of the spouses which is incom-
mensurate with their respective contributions during the subsistence of the marriage to the
maintenance or increase of the estate of the one or the other.97
Of course, this justification for a remedial judicial discretion to redistribute assets on divorce
applies equally to marriages subject to complete separation of property which were concluded
after the introduction of the Matrimonial Property Act and the Marriage and Matrimonial
Property Law Amendment Act. The persistent restriction of the discretion only to civil mar-
riages concluded before the coming into operation of the two Acts strikes one as indefensible,
especially since the discretion has since been extended to all customary marriages which are
98
terminated by divorce. As explained below in this chapter, the restriction of the discretion
may be unconstitutional.

12.5.2 The prerequisites for a redistribution order

(a) General
In terms of section 7(3) of the Divorce Act, one spouse may ask the court to transfer the other
spouse’s assets, or such part of the other spouse’s assets as the court may deem just, to him or
99
her on divorce, if certain prerequisites are met. These prerequisites are the following:
(a) The spouses must not have entered into any agreement regarding the division of
their assets; and
(b) they must have married each other:
(i) before the coming into operation of the Matrimonial Property Act on 1
November 1984, in terms of an antenuptial contract which excludes com-
munity of property, community of profit and loss, and accrual sharing in any
form; or
(ii) before the coming into operation of the Marriage and Matrimonial Property
Law Amendment Act on 2 December 1988, in terms of section 22(6) of the
100
Black Administration Act.
________________________

96 S 7(3)–(6) was inserted into the Divorce Act 70 of 1979 by s 36 of the Matrimonial Property Act.
97 Beaumont v Beaumont 1987 (1) SA 967 (A) 987H–I.
98 See ch 17 below.
99 Because a claim in terms of s 7(3) is personal and ancillary to divorce proceedings, it is extinguished by
the death of the spouse against whom the claim lies: YG v Executor, Estate Late CGM 2013 (4) SA 387
(WCC).
100 Due to the express limitation of the remedy to parties who married before 1 Nov 1984 or 2 Dec 1988,
divorcing civil union partners cannot invoke s 7(3) of the Divorce Act – civil unions were first recognised
in 2006: see ch 16 below.
 Chapter 12: The patrimonial consequences of divorce 139

The court may not make a redistribution order of its own accord. The party who seeks redis-
tribution must apply for the order but need not set out its exact nature and extent in any
detail.101
(b) Marriages that are subject to complete separation of property by operation of the law
Section 7(3) originally referred only to marriages which were subject to complete separation
of property by virtue of an antenuptial contract. It did not make express provision for mar-
riages which were subject to complete separation of property, not by virtue of the provisions
of an antenuptial contract, but by operation of the law. In order to assist African spouses
whose civil marriages were subject to complete separation of property in terms of section
22(6) of the Black Administration Act,102 Stegmann J in Mathabathe v Mathabathe 103 attached a
very broad meaning to the concept “antenuptial contract”. He held that
[e]very seriously intended promise of marriage, or contract of betrothal, or engagement to be
married, has potential legal consequences and is literally an “antenuptial contract” when that
expression is used, as it properly may be, to refer to every kind of premarital agreement.104
He even declared that he could see no reason
why the expression “antenuptial contract” should not in an appropriate context be used in a still
broader sense to refer to a pre-marital agreement which does not deal with proprietary rights
expressly or tacitly and which leaves them to be dealt with by implication of law.105
Applying this artificially broad definition of “antenuptial contract”, Stegmann J concluded
that a marriage which is subject to section 22(6) of the Black Administration Act is indeed a
marriage in which complete separation of property operates because of an antenuptial con-
tract, and that a spouse in such a marriage can therefore seek redistribution of assets in terms
of section 7(3) of the Divorce Act. In 1988 the issue of the applicability of section 7(3) to
marriages which are subject to section 22(6) of the Black Administration Act was settled when
the legislator expressly included these marriages in section 7(3).106
However, the legislator failed to address the position in respect of foreign marriages which
are dissolved by divorce in South Africa and which are out of community of property by virtue
of the rules of the particular foreign legal system. With regard to such marriages, the first dif-
ficulty was whether those marriages could be said to have been entered into in terms of an
antenuptial contract. The second, more important, issue was whether section 7(3) applied at
all to foreign marriages – after all, our law prescribes that the proprietary consequences of a
marriage are governed by the lex loci domicilii of the husband at the time of the marriage and not
by the lex fori (that is, the law of the forum where the divorce proceedings are taking place).107
The first reported case which dealt with the application of section 7(3) to a foreign marriage
was Milbourn v Milbourn.108 In this case, the parties were married in England, where they were
also domiciled at the time. They did not enter into any form of antenuptial contract. In terms
of English law, this meant that they were married subject to complete separation of property
but that, by virtue of the provisions of the English Matrimonial Causes Act of 1973, the court
could redistribute their assets upon divorce. Coetzee DJP was of the opinion that the “con-
tract” envisaged in section 7(3) could only be a contract relating to the proprietary
________________________

101 Beaumont v Beaumont 1987 (1) SA 967 (A).

102 In ch 6 above it is explained that, prior to its repeal on 2 Dec 1988, s 22(6) of the Black Administration Act
38 of 1927 rendered civil marriages by African persons automatically subject to complete separation of
property, unless the spouses made a joint written declaration before a magistrate, commissioner or mar-
riage officer, within one month prior to the marriage, that they wished to marry in community of property.
103 1987 (3) SA 45 (W).
104 51–52.
105 52I. On the meaning of the term “antenuptial contract”, see further ch 7 above.
106 The amendment was effected by s 2(a) of the Marriage and Matrimonial Property Law Amendment Act 3
of 1988.
107 See ch 6 above.
108 1987 (3) SA 62 (W).
140 South African Family Law

consequences of marriage. He did not share Stegmann J’s view that an engagement contract
could be an antenuptial contract. According to Coetzee DJP, even if the view expressed in
Mathabathe v Mathabathe were correct, the engagement contract would have to consist of more
than a mere declaration of the parties’ intention to marry each other. It would also have to
contain terms relating to the proprietary consequences of the marriage. Thus, as there was no
contract regarding the couple’s proprietary rights in the present case, a redistribution order
could not be sought in terms of section 7(3) of the Divorce Act. As the wife did not seek relief
under the rule that the proprietary consequences of a marriage are governed by the lex loci
domicilii of her husband at the time of the marriage, the court also could not apply the redis-
tribution provisions of the English Act.
In Bell v Bell 109 the facts were virtually identical to those in Milbourn. However, here the wife
did not invoke section 7(3) of the Divorce Act. Instead, she relied on the rules of the lex loci
domicilii of her husband at the time of the marriage, namely English law. The court held that
it was bound to give effect to those rules and that the provisions of the Matrimonial Causes Act
had to govern the distribution of the spouses’ property. A similar decision was reached in the
unreported case of Haines v Haines,110 where it was held that, because of the rule that the
proprietary consequences of marriage are governed by the lex loci domicilii of the husband at
the time of the marriage, redistribution should be sought under the Matrimonial Causes Act,
not section 7(3) of our Divorce Act.
In Lagesse v Lagesse 111 the court was again confronted with a foreign marriage. This time the
parties had married in terms of the law of Mauritius. They had not concluded a formal ante-
nuptial contract but at the time of their wedding a note had been made in the margin of their
marriage certificate that they wanted their marriage to be governed by the Status of Married
Women Ordinance of 1949 (Mauritius). In terms of this ordinance, complete separation of
property would operate in the marriage. Kriek J found that the spouses had indeed entered
into an antenuptial contract, albeit only an informal one, and that the wife could therefore
invoke section 7(3) of the Divorce Act. He argued that nothing in the language of section
7(3) suggests that the term “antenuptial contract” should bear the narrow meaning of a
notarially executed and formally registered antenuptial contract. He did not give any consid-
eration to the relationship, if any, between section 7(3) and the rule that the proprietary
consequences of a marriage are governed by the lex loci domicilii of the husband at the time of
the marriage.
In Esterhuizen v Esterhuizen 112 the spouses were domiciled in Namibia when they married.
The chief difference between the facts of this case and the other cases on foreign marriages
was that here the spouses had entered into an antenuptial contract excluding community of
property, community of profit and loss and accrual sharing. Upon their divorce in South
Africa, the wife sought a redistribution order in terms of section 7(3) of the Divorce Act. The
court held that the legislator did not consider foreign marriages either when it inserted
section 7(3) to (6) into the Divorce Act or when it amended section 7(3) in 1988 to include
civil marriages which are subject to section 22(6) of the Black Administration Act. Section
7(3) to (6) was therefore never intended to apply to foreign marriages. The court further
held that the rule that the proprietary consequences of a marriage are governed by the lex loci
domicilii of the husband at the time of the marriage had not been displaced by section 7(3).
Thus, if the lex loci domicilii of the husband at the time of the marriage does not afford a
spouse in a foreign marriage the right to claim redistribution, that spouse does not have a
right to claim redistribution.

________________________

109 1991 (4) SA 195 (W).

110 Case 1683/1991 (C) (unreported), cited in Esterhuizen v Esterhuizen 1999 (1) SA 492 (C).
111 1992 (1) SA 173 (D).
112 1999 (1) SA 492 (C).
 Chapter 12: The patrimonial consequences of divorce 141

From our case law it is therefore by no means clear whether or not section 7(3) to (6) of
113
the Divorce Act applies to foreign marriages. In an attempt to remove the uncertainty, the
legislator inserted section 7(9) into the Divorce Act in 1992.114 This section empowers a South
African court which grants a divorce order in respect of a marriage the patrimonial conse-
quences of which are governed by foreign law, to order redistribution of assets if the court of
the foreign state has that power. In other words, if the foreign court has the power to redis-
tribute assets, the South African court also has that power. Thus, the South African court can
apply the provisions of the particular foreign system regarding redistribution. This amend-
ment did not settle the matter once and for all, since it does not answer the question of
whether section 7(3) can also be invoked in respect of a foreign marriage. It is submitted that
the correct interpretation is that section 7(3) is not applicable to foreign marriages, and that
a spouse in a foreign marriage is entitled to redistribution only if the rules of the lex loci
domicilii of the husband at the time of the marriage permit redistribution or if South African
law governs the spouses’ matrimonial property by virtue of the provisions of their antenuptial
contract.115 After the enactment of section 7(9), the court in the unreported case of De Vries v
De Vries 116 apparently accepted that section 7(3) is not available to a spouse in a foreign
marriage. The court relied on section 7(9) and applied German law to the proprietary conse-
quences of a marriage which was concluded in Germany by two persons who were domiciled
in that country. As German law does not empower the court to deviate from the matrimonial
property system chosen by the spouses, the court refused to consider redistribution of assets.117
(c) The constitutionality of the prerequisites in section 7(3)
The first constitutional question arising from the prerequisites for the operation of the
judicial discretion to redistribute assets upon divorce is whether using the wedding date as the
criterion for affording or denying the remedy will withstand a constitutional challenge. When
answering this question it should be borne in mind that antenuptial contracts often exclude
the accrual system and that the exclusion normally occurs at the insistence of the party whose
estate will probably grow most (who is usually the husband).118 Therefore a sizable number of
spouses (mainly women) still run the risk of leaving their marriages virtually empty-handed.
Their factual situation is the same as that of spouses who married with complete separation of
property before the two cut-off dates stipulated in section 7(3) (that is, 1 November 1984 and
2 December 1988). Yet the judicial discretion does not apply to them. Viewed in this light, it
seems that the differentiation between the two groups purely on the ground of their wedding
date infringes the equality clause.119
________________________

113 On the conflicting case law, see also Schulze in Heaton (ed) Law of Divorce and Dissolution of Life Partner-
ships 654–657.
114 The insertion was effected by the Divorce Amendment Act 44 of 1992.
115 Heaton and Schoeman 2000 THRHR 144. In other words, South African law applies if it is the lex causae
(ie, the foreign law which governs the particular matter) because the spouses expressly selected South Af-
rican law in their antenuptial contract, because it is indicated as the spouses’ tacit choice, or because it is
the objective proper law of the antenuptial contract: ibid. See also Glover in Clark (ed) Family Law Service
par D8A; Schulze in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 657; but see Van Schalk-
wyk 1999 TSAR 378.
116 Case 307/2003, 2541/03, 10 Oct 2007 (C) (unreported).
117 On s 7(9), see further Forsyth 310; Glover in Clark (ed) Family Law Service par D8A; Schulze in Heaton
(ed) Law of Divorce and Dissolution of Life Partnerships 657; Van Niekerk A Practical Guide to Patrimonial Litiga-
tion in Divorce Actions pars 8.3 and 8.4; Visser and Potgieter 185 fn 73.
118 On the unequal bargaining positions of prospective spouses and the consequences of the rigid enforce-
ment of antenuptial contracts on divorce despite the parties’ unequal bargaining positions, see eg Dehtloff
in Boele-Woelki, Miles and Scherpe (eds) The Future of Family Property in Europe 85–87; Boshoff 2001 SALJ
317; Bonthuys 2004 SALJ 879, esp 894–897; Heaton 2005 SAJHR 553–556; Barratt 2013 SALJ 695, 696, 698,
703–704.
119 S 9 of the Constitution. See also SB v RB [2015] 2 All SA 232 (ECLD, George); Clark and Goldblatt in
Bonthuys and Albertyn (eds) Gender, Law and Justice 224; Heaton in Bill of Rights Compendium par 3C26;
Sinclair in Van Wyk et al (eds) Rights and Constitutionalism 549–551; Sinclair assisted by Heaton 143–146; Costa
Sept De Rebus 17.
142 South African Family Law

Those who favour retention of only the limited judicial discretion argue that the infringe-
ment of the equality clause is justifiable as it respects the couple’s contractual choice of com-
plete separation of property120 and because the introduction of a judicial discretion to redis-
tribute assets in all marriages which are subject to complete separation of property would lead
to unacceptable legal uncertainty about the financial outcome of divorce.121 These arguments
should be rejected, because a degree of uncertainty is preferable to “the rigid, irremediable
harshness acknowledged to derive from complete separation of property”.122 Furthermore, in
view of the Constitutional Court’s decision in Gumede v President of the Republic of South Africa,123
which extended the judicial discretion to redistribute assets to spouses in all customary
marriages, it seems clear that legal uncertainty about the financial outcome of divorce does
not carry much weight and certainly does not trump considerations of gender equality. Nor
does respect for the spouses’ contractual choice of their matrimonial property system out-
weigh considerations of gender equality.
A second issue is whether affording all spouses in customary marriages the remedy of a
judicial redistribution of assets on divorce while imposing the many restrictions contained in
section 7(3) on spouses in a civil marriage violates the Constitution. The first fundamental
right which comes into play is equality before the law and equal protection and benefit of the
law.124 The test for determining whether a differentiation violates this right is whether there is
a rational connection between the differentiation and the legitimate governmental purpose it
is designed to further.125 Although it is acknowledged that differences may legitimately exist
between customary and civil marriages, and although the Constitutional Court held in Gumede
that “customary marriages should not be seen through the prism of the marital proprietary
regimes under the common law or divorce legislation that regulates civil marriages”126 and
that, unlike the common law, customary law “does not place a premium on the dichotomy
between marriages in and out of community of property”,127 it is doubted whether the differ-
ence in the type of marriage (that is, customary versus civil) provides a rational basis for the
vast differentiation that exists between spouses in customary and civil marriages in so far as the
judicial discretion to redistribute assets is concerned. In respect of both types of marriages,
the legitimate governmental purpose of empowering the court to order redistribution is to
enable the court to address financial inequity arising from a strict application of the matrimo-
nial property system. In both customary and civil marriages women usually bear the brunt of
such inequity because of their financial and social inequality with men. It is not rational to
afford the court the power to redistribute assets in all customary marriages, while restricting
the court’s power in civil marriages to those that are subject to complete separation of prop-
erty and were concluded before the cut-off dates mentioned in section 7(3). Thus the differ-
entiation indeed amounts to inequality before the law and unequal protection and benefit of
the law.
The differentiation may also amount to unfair discrimination based on the listed ground of
128
race. It is unclear whether people who are not African (black) persons may enter into a
________________________

120 The South African Law Commission relied on this argument to justify its refusal to recommend the exten-
sion of the judicial discretion to marriages celebrated after the cut-off dates: Report on the Review of the Law
of Divorce ch 3 par 1.3.10.
121 This was another argument the Law Commission advanced for its refusal to extend the judicial discretion:
Report on the Review of the Law of Divorce ch 3 par 1.3.10.
122 Heaton in Bill of Rights Compendium par 3C26; Sinclair in Van Wyk et al (eds) Rights and Constitutionalism
551; Sinclair assisted by Heaton 145.
123 2009 (3) BCLR 24 (CC), 2009 (3) SA 152 (CC), Heaton and Kruger Casebook on Family Law case [66]. On
this decision, see further ch 17 below.
124 S 9(1) of the Constitution. See also SB v RB [2015] 2 All SA 232 (ECLD, George).
125 See eg Prinsloo v Van der Linde 1997 (6) BCLR 759 (CC), 1997 (3) SA 1012 (CC); Harksen v Lane 1997 (11)
BCLR 1489 (CC), 1998 (1) SA 300 (CC); Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour inter-
vening) 1999 (2) BCLR 139 (CC), 1999 (2) SA 1 (CC).
126 Par 43; see also par 42.
127 Par 43.
128 S 9(3) of the Constitution. See also Heaton 2009 Annual Survey of South African Law 461.
 Chapter 12: The patrimonial consequences of divorce 143
129
customary marriage. If customary marriages are indeed restricted to African persons, the
racial discrimination would be direct, as only African persons would be able to obtain redis-
tribution upon divorce regardless of the matrimonial property system that operates in their
(customary) marriage. Even if customary marriages are open to all races, there would still be
indirect discrimination on the ground of race because customary marriages would remain
largely the preserve of African persons. The effect of the restricted power to redistribute
assets when a civil marriage ends in divorce is that a disproportionate number of white,
coloured and Asian persons are unable to seek redistribution. The restriction of the power in
respect of civil marriages has far-reaching deleterious consequences for the financially weaker
130
spouse (and the spouse’s children if they are placed in his or her care), and affects the
dignity of that spouse (and his or her children). It is submitted that the inequality before the
law and unequal protection and benefit of the law, and the unfair discrimination on the
ground of race are unjustifiable and that the severe restrictions imposed by section 7(3) are
131
unconstitutional.

12.5.3 The requirements for a redistribution order

(a) General
The court may exercise its discretion whether or not to grant a redistribution order only if the
two requirements in section 7(4) of the Divorce Act are met. These requirements are the fol-
lowing:
(1) The spouse who seeks redistribution must have contributed directly or indirectly to the
maintenance or increase of the other spouse’s estate during the subsistence of the mar-
riage.
(2) The court must be satisfied that, by reason of such contribution, it is equitable and just to
make a redistribution order.
In Buttner v Buttner 132 the Supreme Court of Appeal held that the court should not approach
an application for redistribution from the point of view that the absence of a contribution by
the other spouse must be proved; it is the presence of the contribution that must be proved
by the spouse seeking redistribution.
Whether a contribution has been made is a purely factual finding. However, being satisfied
that it would be equitable and just to make a redistribution order involves the exercise of a
discretion by the court. Once it has been determined that the prerequisites of section 7(3)
have been met133 and that the claimant made a contribution to the maintenance or increase
of the respondent’s estate during the subsistence of the marriage, the determination whether
it would be equitable and just to make a redistribution order is left entirely to the discretion
of the court.134

________________________

129 See ch 17 fn 1.
130 Children and their care-giving parent share the same post-divorce economic circumstances and standard
of living: see eg Van Zyl 1992 THRHR 297; Bonthuys 2001 THRHR 192.
131 On the arguments for finding that the restrictions in s 7(3) are unconstitutional, see (apart from the
sources cited in the preceding footnotes) also Barratt (ed) Persons and the Family 351–352; Heaton in Hea-
ton (ed) Law of Divorce and Dissolution of Life Partnerships 107; Heaton 2005 SAJHR 460–462; Robinson and
Horsten 2010 (1) Speculum Juris 113–116; Van Schalkwyk 2010 De Jure 182–88; Barratt 2013 SALJ 691. See
also Van Schalkwyk (2013) 10 LitNet Akademies (Regte) 11 November 2013, http://www.litnet.co.za/Article/
nahuwelikse-onderhandsebuitegeregtelike-verandering-van-die-huweliksgoederebedeling-stante (accessed
22 June 2015).
132 [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA), Heaton and Kruger Casebook on Family Law case [49].
133 See the discussion under the previous heading.
134 Beaumont v Beaumont 1987 (1) SA 967 (A).
144 South African Family Law

(b) The nature of the contribution to the maintenance or increase of the

other spouse’s estate
In terms of section 7(4), one spouse can contribute to the maintenance or increase of the
other spouse’s estate in the following ways:
(1) By rendering services (for example, by working in the other spouse’s business, without
any compensation or for a low salary).
(2) By saving expenses which would otherwise have been incurred (for example, by being a
homemaker and in this way saving the other spouse various expenses).
(3) In any other manner.
In Beaumont v Beaumont 135 the Appellate Division held that the wording of section 7(4) is suffi-
ciently wide to cover any contribution a spouse makes. Thus the section also covers the
performance of the “ordinary duties” of a wife in respect of looking after the home and
caring for the family, for in performing these duties the wife renders services and saves ex-
penses which necessarily contribute to the maintenance or increase of her husband’s estate.
This approach has been consistently followed in subsequent cases, although the weight
attached to the performance of domestic and child-care responsibilities has varied.136
In Kritzinger v Kritzinger 137 the Appellate Division again considered the nature of the contri-
bution the Act requires. Here, the court was faced with the astereotypical situation in which
the wife was wealthier than the husband and the husband had made the kind of career
sacrifice wives usually make. The wife was the managing director of a large department store
while her husband was a legal adviser to an oil company. During the subsistence of the mar-
riage, the husband was offered a post at the oil company’s headquarters in New York, but he
declined the offer to further his wife’s career and business interests in South Africa. The
marriage ended in divorce and each party claimed transfer of assets from the other. The
husband contended that he had indirectly contributed to the increase or maintenance of his
wife’s estate by not settling in New York and thus forfeiting promotion. He further alleged
that his contribution enabled his wife to obtain more shares in certain business concerns,
which resulted in the increase of her estate. The husband was successful in the court a quo but
an appeal against the decision was upheld. Firstly, the Appellate Division was not satisfied that
the husband could succeed on the facts and, secondly, the court required a causal connection
between the claimant’s conduct and the growth or maintenance of the other spouse’s estate
which, it held, was absent.138 The court further held that normally only a positive act would
constitute a contribution. Merely to refrain from action would therefore not usually qualify as
a contribution to the growth or maintenance of the other spouse’s estate. The court rejected
the husband’s career sacrifice as amounting to simply doing nothing. It further stated that if
the husband indeed had good prospects overseas, which he gave up because of concern for
his wife’s career and business interests, “he simply made a bad error of judgement in deciding
to stay where he was”.139 If, in contrast, his prospects were not really so rosy, he should be
grateful that he refused the overseas posting, as his wife’s career had flourished and he had
enjoyed the benefit of the high standard of living her income had brought them. Fortunately,
the view that the poorer spouse is compensated for his or her contributions by enjoying the
privileges of the affluent lifestyle that the wealthier spouse’s income produces during the
________________________

135 1987 (1) SA 967 (A), Heaton and Kruger Casebook on Family Law case [47].
136 See eg Katz v Katz 1989 (3) SA 1 (A); Van Zummeren v Van Zummeren [1997] 1 All SA 91 (E); Jordaan v
Jordaan 2001 (3) SA 288 (C); Childs v Childs 2003 (3) SA 138 (C); Bezuidenhout v Bezuidenhout [2004] 4 All
SA 487 (SCA), 2005 (2) SA 187 (SCA); Kirkland v Kirkland 2006 (6) SA 144 (C); Badenhorst v Badenhorst
[2006] 2 All SA 363 (SCA), 2006 (2) SA 255 (SCA); Buttner v Buttner [2006] 1 All SA 429 (SCA), 2006 (3)
SA 23 (SCA). On the weight attached to domestic and child-care responsibilities, see further the discussion
of the criterion for establishing the extent of the redistribution below in this chapter.
137 1989 (1) SA 67 (A), Heaton and Kruger Casebook on Family Law case [48].
138 See also Raik v Raik 1993 (2) SA 617 (W).
139 86E.
 Chapter 12: The patrimonial consequences of divorce 145

subsistence of the marriage has since been rejected by the Supreme Court of Appeal in
Bezuidenhout v Bezuidenhout.140 It is hoped that the view on career sacrifices will also be rejected
in the future.141
Although there must be a causal connection between the contribution and the growth or
142
maintenance of the other spouse’s estate, a redistribution order is not dependent on proof
of a causal link between the claimant’s contribution and every asset in the other spouse’s
estate.143 Furthermore, a monetary value need not be placed on the contribution before it can
be considered for purposes of a redistribution order.144

12.5.4 Other considerations the court takes into account

(a) General
In addition to the spouse’s contribution to the maintenance or increase of the other spouse’s
estate, the court must also take the following factors into consideration in terms of section
7(5) of the Divorce Act:
(1) The existing means and obligations of the parties, including any obligation which a
husband who entered into a civil marriage while being married to another woman at cus-
tomary law may have to the latter wife in terms of section 22(7) of the Black Admin-
istration Act. Section 22(7) was repealed by the Repeal of the Black Administration Act
and Amendment of Certain Laws Act 28 of 2005,145 but section 7 of the Reform of Cus-
tomary Law of Succession and Regulation of Related Matters Act 11 of 2009 re-cast the
repealed section. Section 22(7) dealt with the patrimonial rights of a wife in a customary
marriage who was “discarded” as a result of the subsequent civil marriage of her husband
to another woman. Prior to the commencement of the Marriage and Matrimonial Prop-
erty Law Amendment Act, a man could enter into a civil marriage while being married to
another woman in terms of customary law. The civil marriage automatically dissolved the
customary marriage, thus turning the wife in the customary marriage into a “discarded”
spouse.146 Section 22(7) protected the rights of the “discarded” wife by providing that the
civil marriage did not “in any way affect the material rights” of the spouses in the cus-
tomary marriage or the children born of the customary marriage. Now, section 7(1) of
the Reform of Customary Law of Succession and Regulation of Related Matters Act pro-
vides that a civil marriage does not affect the proprietary rights of any spouse in a cus-
tomary marriage or any children born of a customary marriage if the civil marriage was
entered into between the date of commencement of sections 22 and 23 of the Black Ad-
ministration Act and the date of commencement of the Marriage and Matrimonial Prop-
erty Law Amendment Act (that is, between 1 January 1929 and 2 December 1988) while
the husband was married to another woman at customary law.147
________________________

140 [2004] 4 All SA 487 (SCA), 2005 (2) SA 187 (SCA).

141 Although Kritzinger does not deal with domestic and family-care responsibilities, the decision implies that if
a spouse sacrifices or curtails his or her career out of domestic and/or family-care concerns, his or her
contribution is no greater than it would have been had he or she simply been a homemaker all along. The
decision therefore reinforces the public/private dichotomy by discouraging homemakers from engaging
in paid employment. The decision furthermore implies that the double or triple burden of a spouse who is
active in the labour market while also fulfilling domestic and/or family-care responsibilities is not worthy
of recognition and protection: Heaton 2005 SAJHR 560. On the public/private dichotomy and women’s
double or triple burden, see eg Barratt (ed) Persons and the Family 336; Sinclair assisted by Heaton 16–28,
69–71; Bonthuys 1999 THRHR 551–556; De Jong 1999 THRHR 79–80; Bonthuys 2001 THRHR 193–196;
O’Sullivan 2001 Acta Juridica 71–72; Heaton 2005 SAJHR 549–552.
142 Kritzinger v Kritzinger 1989 (1) SA 67 (A); see also Raik v Raik 1993 (2) SA 617 (W).
143 Bezuidenhout v Bezuidenhout [2004] 4 All SA 487 (SCA), 2005 (2) SA 187 (SCA).
144 Katz v Katz 1989 (3) SA 1 (A); Raik v Raik 1993 (2) SA 617 (W).
145 S 1(4) of the Repeal of the Black Administration Act and Amendment of Certain Laws Act 28 of 2005.
146 Nkambula v Linda 1951 (1) SA 377 (A).
147 S 1(a) and (b) of the Marriage and Matrimonial Property Law Amendment Act amended s 22(1) and (2)
of the Black Administration Act to prohibit a subsequent civil marriage with a woman who is not the
continued
146 South African Family Law

(2) Any donation one spouse made to the other during the subsistence of the marriage, or
which is still owed in terms of the spouses’ antenuptial contract.
(3) Any order for forfeiture of patrimonial benefits in terms of section 9 of the Divorce Act.148
(4) Any other factor which, in the opinion of the court, should be taken into account.
The extremely wide scope of the court’s discretion with regard to redistribution is highlighted
by section 7(5)(d), which permits it to consider “any other factor” in the exercise of its power
to make a redistribution order. Some of the “other” factors that have been taken into account
are considered below.
(b) Misconduct
The legislator expressly made fault or misconduct a relevant factor for purposes of assessing
maintenance under section 7(2) of the Divorce Act.149 Although there is no corresponding
provision in relation to a redistribution order, misconduct can be taken into account under
the wide terms of section 7(5)(d). However, in Beaumont v Beaumont 150 the Appellate Division
stated that “our Courts will adopt a conservative approach in assessing a party’s misconduct as
a relevant factor, whether under ss (2) or ss (3)”. Misconduct will not be considered “where
there is no conspicuous disparity between the conduct of the one party and that of the oth-
er”.151 In this way the advantages of the no-fault divorce system are not jeopardised. The most
important characteristic of our legislation is that justice must be done between the spouses,
irrespective of whether or not an order is made in terms of section 7(2) or section 7(3).
Therefore, if the marriage breakdown resulted from the misconduct of only one party, this is
a factor which may be taken into account in order to achieve justice, especially if the miscon-
duct is found to have been “gross and prolonged”.152 In Buttner v Buttner 153 the Supreme Court
of Appeal confirmed this approach to misconduct. It further held that if both parties are
blameworthy, the court will not take misconduct into account unless there is an imbalance in
the parties’ conduct that would make it inequitable to ignore their respective degrees of
blameworthiness.
(c) The interrelationship between section 7(2) and section 7(3) of the Divorce Act 70 of
1979, and the clean-break principle
As far as the interrelationship between section 7(2) and section 7(3) of the Divorce Act is con-
cerned, it was held in Beaumont v Beaumont 154 that, just like a redistribution order under
section 7(3) is taken into account when a maintenance order in terms of section 7(2) is
considered, a maintenance order can be taken into account when a redistribution order is
considered.155 The approach the court should adopt is to take

________________________

husband’s existing customary wife. S 22(1) and (2) of the Black Administration Act was repealed by the
schedule of the Recognition of Customary Marriages Act 120 of 1998. S 10(1) read with s 3(2) of the latter
Act now provides that a husband in an existing customary marriage may not enter into a civil marriage, un-
less the civil marriage is with one of his customary wives. If he is a party to more than one customary mar-
riage, the other customary marriages must be dissolved before he may enter into the civil marriage with his
remaining customary wife. See further ch 17 below.
148 Forfeiture of benefits is discussed above in this chapter.
149 See ch 13 below.
150 1987 (1) SA 967 (A) 994E; see also Kritzinger v Kritzinger 1989 (1) SA 67 (A); Kretschmer v Kretschmer 1989
(1) SA 566 (W); Archer v Archer 1989 (2) SA 885 (E).
151 994I.
152 Beaumont v Beaumont 1987 (1) SA 967 (A) 994–995; see also Kritzinger v Kritzinger 1989 (1) SA 67 (A);
Kretschmer v Kretschmer 1989 (1) SA 566 (W); Archer v Archer 1989 (2) SA 885 (E); Buttner v Buttner 2006 (3)
SA 23 (SCA); CC v MVC [2013] 4 All SA 327 (GSJ), 2014 (2) SA 430 (GJ).
153 [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA).
154 1987 (1) SA 967 (A).
155 The Act mentions an order in terms of s 7(3) as one of the factors to be taken into account when the court
makes an order under s 7(2). S 7(3), however, does not contain a corresponding provision in terms of
which an order under s 7(2) may be taken into account when an order is made under s 7(3). According to
continued
 Chapter 12: The patrimonial consequences of divorce 147

an overall view, from the outset, of how justice could best be achieved between the parties in the
light of possible orders under either ss (2) or ss (3) or both subsections, in relation to the means
and obligations, and the needs of the parties, and all the other relevant factors.156
The Appellate Division further referred to the clean-break principle, which dictates that the
financial obligations between the spouses should terminate as soon as possible after divorce.
A clean break can be achieved by making only a redistribution order in terms of section 7(3)
and no maintenance order under section 7(2).157 The court mentioned that in terms of
English legislation, the clean-break principle is applied in appropriate cases. Although our
legislation does not contain a corresponding provision, the Appellate Division did not regard
the concept underlying the clean-break principle as foreign to our law. It held that, because
of the obvious advantages the principle entails, our courts will consider the possibility of using
their powers in such a way as to achieve a complete termination of the financial dependence
of the one party on the other, if circumstances permit. The latter qualification is very im-
portant. The clean-break principle can be applied only if its application will not lead to
unfairness between the parties. In many cases the clean-break principle is not feasible, as the
amount required to achieve a clean break is too large and consequently places too heavy a
burden on the party who has to pay it, or is too small to provide for the needs of the recipi-
ent.158 Whether the clean-break principle is to be applied therefore depends on the circum-
stances of every case.159 In practice, the clean-break principle is increasingly being applied in
our law – unfortunately sometimes without proper consideration being given to whether it
causes injustice and results in substantive gender inequality.160
(d) Various other factors the courts have taken into account
Other factors the courts have taken into account include exchange-rate variations between
the date of valuation of the spouses’ foreign properties and the date of the court’s order;161 a
material unforeseen deviation from the value the spouses had agreed upon in respect of cer-
tain assets;162 the need for finality in litigation;163 the need not to jeopardise the financial sur-
vival of the businesses which constitute a large part of the wealth of one of the spouses;164 the
fiscal implications of compelling a spouse to sell particular assets in order to be able to pay an
amount to his or her spouse in terms of the redistribution order;165 and the implications of
selling property which serves as security for credit facilities granted to the spouse who has to
transfer assets or money in terms of the redistribution order.166 It has also been held that
section 7(5)(d) is wide enough to allow the trial court to decide whether or not evidence
relating to a previous marriage between the same parties can be taken into account when
167
their second marriage is dissolved by divorce.

________________________

the Appellate Division, an order in terms of s 7(2) can be taken into account under the wide terms of
s 7(5)(d), when an order is considered under s 7(3).
156 Beaumont v Beaumont 1987 (1) SA 967 (A) 992F.
157 The clean-break principle is not restricted to marriages in which the court has the power to order redistri-
bution of assets. In other marriages a clean break can be achieved simply by not making a maintenance
order.
158 See also Katz v Katz 1989 (3) SA 1 (A).
159 Beaumont v Beaumont 1987 (1) SA 967 (A).
160 See further ch 13 below, where the movement away from permanent maintenance awards is discussed.
161 Kirkland v Kirkland 2006 (6) SA 144 (C).
162 Ibid.
163 Ibid.
164 Bezuidenhout v Bezuidenhout [2004] 4 All SA 487 (SCA), 2005 (2) SA 187 (SCA).
165 Ibid.
166 Ibid. The court should also take into account factors such as the cost of repatriating foreign assets, the
profit potential of a particular asset, the upkeep and maintenance it requires, the financial risk associated
with owning it, and the issue of whether the post-divorce situation of the spouse who will acquire or keep
the particular asset will realistically enable him or her to retain it: see further Heaton 2005 SAJHR 566.
167 Webster v Webster 1992 (3) SA 729 (E).
148 South African Family Law

12.5.5 Assets which can be considered for purposes of a redistribution order

All the assets which fall into a spouse’s estate can be taken into account for the purposes of a
redistribution order. This includes assets a spouse inherited or received as donations during
the subsistence of the marriage.168
In Kirkland v Kirkland 169 the capitalised value of a husband’s interests in a retirement annui-
ty from which he derived a monthly income was taken into account for the purposes of a
redistribution order. The court stated that it did not consider the issue to be one of whether
those interests “are technically to be regarded as assets”.170 It simply took the capitalised value
into account in exercising its statutory discretion to redistribute the spouses’ assets. It adopted
the same approach in respect of the capitalised value of the husband’s interests in a trust
from which he was receiving income. In Kirkland the court also held that a loan a spouse
made to his or her child and intends never to recover from the child is not an asset in the
spouse’s estate.
Whether the assets of an inter vivos discretionary trust which was created during the subsist-
ence of the marriage may be taken into account is a complicated matter. The starting point is
171
that the property of a trust vests in the trustees in their official capacity as trustees. There-
fore, if a spouse has transferred assets to a trust, those assets no longer belong to the spouse.
(If the trust is invalid, the supposed trust assets obviously still fall into the transferor’s estate as
there was, in truth, no trust the assets could be transferred to.) In Badenhorst v Badenhorst 172
the Supreme Court of Appeal held that the fact that assets which have been transferred to a
trust vest in the trustees and do not form part of the spouse’s estate “does not per se exclude
them from consideration when determining what must be taken into account when making a
redistribution order”. The court held that the value of trust assets may be taken into account
to determine the value of the estate of one of the spouses if the trust is merely the alter ego of
the particular spouse. This will be done only if there is
evidence that such party controlled the trust and but for the trust would have acquired and
owned the assets in his own name. Control must be de facto and not necessarily de iure… De
iure control of a trust is in the hands of the trustees but very often the founder in business or
family trusts appoints close relatives or friends who are either supine or do the bidding of their
appointer. De facto the founder controls the trust. To determine whether a party has such con-
trol it is necessary to first have regard to the terms of the trust deed, and secondly to consider
the evidence of how the affairs of the trust were conducted during the marriage.173
In Badenhorst the husband had full control of the trust assets and used the trust as a vehicle
for his business activities. The Supreme Court of Appeal concluded that, “but for the trust,
ownership in all the assets would have vested in the respondent”.174 The court added the value
of the trust assets to the value of the husband’s estate in calculating the amount to be trans-
ferred to the wife. The High Court had earlier adopted the same approach in Jordaan v
Jordaan.175 In neither of these cases did the court find that the particular trusts were invalid
________________________

168 Van Zummeren v Van Zummeren [1997] 1 All SA 91 (E); Jordaan v Jordaan 2001 (3) SA 288 (C); Buttner v
Buttner [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA); Kirkland v Kirkland 2006 (6) SA 144 (C); but see
Beira v Beira 1990 (3) SA 802 (W).
169 2006 (6) SA 144 (C).
170 Par 83.
171 See eg Land and Agricultural Bank of South Africa v Parker 2005 (2) SA 77 (SCA); RP v DP 2014 (6) SA 243
(ECP), Heaton and Kruger Casebook on Family Law case [51].
172 [2006] 2 All SA 363 (SCA), 2006 (2) SA 255 (SCA) par 9, Heaton and Kruger Casebook on Family Law case
[50].
173 Par 9; see also Joffe Jan/Feb 2007 De Rebus 26.
174 Par 11.
175 2001 (3) SA 288 (C). See also Grobbelaar v Grobbelaar Case 26600/98 (T) (unreported) cited in Badenhorst v
Badenhorst [2006] 2 All SA 363 (SCA), 2006 (2) SA 255 (SCA). In the latter case the court apparently took
trust assets (and not only their value) into account even though the court did not find that the trust was a
sham. And see Brunette v Brunette 2009 (5) SA 81 (SE) where the court ordered the joinder of the
continued
 Chapter 12: The patrimonial consequences of divorce 149

and that the trust assets therefore still vested in the estate of the spouse who had transferred
them to the trust.
It is clear that the broad discretion that has been conferred on the court in respect of redis-
tribution orders (including the power to consider any factor in making its order), empowers
the court to take into account the value of the assets of a trust that has been used as the alter
ego of one of the spouses. What is unclear, however, is whether the court may take the value of
assets of an alter ego trust into account only if a redistribution order is at issue or whether it
may also do so in marriages which are subject to the accrual system or community of property.
176
In BC v CC the court extended the approach of taking the value of trust assets into ac-
count when making a redistribution order to a marriage subject to the accrual system. Dam-
buza J held that the legislature did not intend that the value of trust assets should be excluded
for purposes of calculating the accrual in a spouse’s estate because exclusion would lead to
abuse of the trust form. Referring to Jordaan, Badenhorst, and the unreported decision in Smith
177
v Smith, the judge pointed out that the courts have been willing to take the value of trust
assets into account in cases dealing with redistribution of assets. She held that determining
which assets must be considered in calculating the value of a spouse’s estate on divorce is “the
178
same in both the Matrimonial Property Act and the Divorce Act”. Therefore, the value of
trust assets can be taken into account regardless of whether a redistribution order or division
of accrual is at issue.
179
This view was rejected in MM v JM. The court held that there is a fundamental difference
between a redistribution order and adjudicating an accrual claim. This difference is that the
Divorce Act specifically empowers the court to order that such assets or part of the assets of
one spouse “as the court may deem just” must be transferred to the other spouse, while in the
case of an accrual claim “the court is not required to make an assessment of what it deems to
180
be ‘just’”. In the case of the accrual system, the court simply determines the amount that is
equal to half the difference between the accrual of the spouses’ respective estates on a factual,
mathematical basis. When doing so, the court must take only the personal property of the
spouses into account, because the Matrimonial Property Act does not permit it to exercise a
discretion to take the value of trust property into account.
181
In an obiter dictum in RP v DP Alkema J agreed with the finding in MM v JM that the ac-
crual claim is calculated on a factual, mathematical basis and that the Matrimonial Property
Act does not confer a discretion on the court to take into account assets which do not fall into
the personal estates of the spouses. However, he found that the issue of taking trust assets into
account should be approached in a different way. He held that if the trust form is abused and
182
a trustee treats the trust as his or her alter ego, the court may pierce the trust veil. If the court
pierces the trust veil, it looks behind transactions relating to the trust in order to decide
________________________

claimant’s husband in his capacity as trustee as the second respondent in a contested divorce action in
which the wife sought a redistribution order. The wife wanted the trial court upon divorce to regard the
trust assets as the assets of businesses the spouses conducted as partners. She alleged that the spouses con-
ducted the businesses without distinguishing between the assets of their partnership and those of the
trusts. The court found that the wife had made a prima facie case that the trust assets were regarded as
assets of the spouses’ partnership inter alia because the balance sheets of the trusts reflected a profit distri-
bution to the spouses. To determine whether the wife’s contentions that the trust assets were treated as
partnership assets were correct, the trial court would have to consider the manner in which the trusts had
been administered in the past. To enable the trial court to do so, the husband had to be joined in his
capacity as trustee.
176 2012 (5) SA 562 (ECP).
177 Case 619/2006 (SECLD) (unreported).
178 BC v CC 2012 (5) SA 562 (ECP) par 9.
179 2014 (4) SA 384 (KZP).
180 Par 12; see also par 19.
181 2014 (6) SA 243 (ECP), Heaton and Kruger Casebook on Family Law case [51].
182 See also Rees v Harris 2012 (1) SA 583 (GSJ); VZ v VZ (2011/5122) [2014] ZAGPJHC 42, 14 February 2014;
Van Zyl v Kaye 2014 (4) SA 452 (WCC).
150 South African Family Law

whether or not they involve assets which were truly separate from the trustee’s personal assets,
or whether “the separateness of trust assets was simulated to hide the personal assets of the
183
trustee”. In deciding whether particular assets are in truth trust or personal assets, the court
considers the terms of the trust deed; the extent of de facto control by the trustee over the
trust; the nature of the assets; the liabilities of the trust; and the management of the affairs of
the trust. Application of these principles implies that when the court pierces the trust veil, it
does so by virtue of a common-law power and it exercises a function that is distinct from the
discretion afforded to it by section 7(3) to (6) of the Divorce Act. This common-law function
is also distinct from calculating the accrual in terms of the Matrimonial Property Act. There-
fore, the fact that the Divorce Act affords a broad discretion to the court while the provisions
of the Matrimonial Property Act relating to calculation of the accrual do not afford a discre-
184
tion to the court, is irrelevant in respect of this function. It is only after this function has
been performed, that the second function, namely calculating the amount that is to be
redistributed in terms of the Divorce Act or calculating the amount of the accrual claim in
terms of the Matrimonial Property Act, comes into play.
It is hoped that the approach in RP v DP will be followed and that the value of trust assets
will be taken into consideration if the assets are in truth being controlled and used as if they
were the personal property of a particular spouse. This should be the position regardless of
185
the matrimonial property system. However, in view of the recent judgment of the Supreme
186
Court of Appeal in WT v KT a note of caution should be added. In this case the court stated
that the mere fact that a trust is the alter ego of a trustee is insufficient justification for piercing
the trust veil. In addition, the trustee who is using the trust as his or her alter ego must have a
fiduciary duty towards the person who is asking the court to pierce the trust veil. A fiduciary
duty would exist if the person was a beneficiary of the trust or a third party who had transacted
with the trust. Therefore a spouse who has never been a beneficiary of the trust and has never
entered into any transaction with the trust does not have standing to seek an order piercing
the trust veil. Application of this view will reduce the number of situations where courts can
take the value of the assets of an alter ego trust into account in marriages subject to the accrual
system or community of property.
In Beira v Beira 187 the position regarding the trust of which the wife was a beneficiary was
different to the alter ego trust issue that arose in the cases discussed above. Here, a husband
wanted the court that was asked to make a redistribution order to take into account the fact
that his wife would own substantial assets from a trust when the founders of the trust (the
wife’s parents) died. His argument was based on section 7(5)(d). The court held that some-
thing fortuitous such as an unexpected inheritance or trust benefits which have not yet vested
in a spouse cannot be taken into account. It must be emphasised that in this case the wife did
not have de facto control of the trust and she had not yet acquired any assets from the trust.
A redistribution order cannot be made against a party who is insolvent.188
In Petty v Petty 189 the court stated in an obiter dictum that the claimant bears “the onus of
proof in the identification of assets… that must be redistributed under the provisions of sec-
tion 7 of the Divorce Act”. It is not entirely clear what this means. If the statement merely
relates to proving which assets are to be considered for purposes of a redistribution order (for
example, which assets form part of the respondent’s estate) it is acceptable. However, if it is
________________________

183 Par 24.

184 Alkema J referred with approval to a similar finding in Smith v Smith Case 619/2006 (SECLD) (unreport-
ed).
185 See also Heaton in Atkin (ed) 2015 International Survey of Family Law 324; Heaton 2014 Annual Survey of
South African Law (forthcoming).
186 2015 (3) SA 574 (SCA).
187 1990 (3) SA 802 (W).
188 Redgard v Redgard 1989 (1) SA 113 (E).
189 [2002] 2 All SA 193 (T) 197c–d.
 Chapter 12: The patrimonial consequences of divorce 151

meant to convey that the court’s discretion to redistribute assets is restricted to those assets
the claimant identifies, it is incorrect, for the provisions of the Act do not indicate any such
limitation.
The claimant need not have made a contribution to specific assets for those assets to be
taken into account for purposes of a redistribution order. The fact that the claimant made a
contribution to the respondent’s estate is sufficient.190

12.5.6 The date on which the value of a spouse’s estate is to be calculated

191
In Katz v Katz the Appellate Division stated in an obiter dictum that, for purposes of a redis-
tribution order, the value of the spouses’ estates must “so far as that is practicable” be calcu-
lated as of the date of the court order, for otherwise “it could give rise to highly anomalous
192
consequences”. The court did not indicate what these consequences would be. Subsequent-
193
ly, in CC v CM the Gauteng Local Division of the High Court, Johannesburg used the
194
analogy of case law relating to the accrual system to hold that a party who has instituted a
195
claim for redistribution merely has a contingent right to redistribution until the divorce is
granted. Therefore, it held, discovery which has the object of establishing the value of a
spouse’s estate for purposes of a redistribution order can be pursued after divorce. This
dictum suggests that the court was of the view that the value of a spouse’s estate must be
calculated on or after divorce because the right to claim redistribution arises only on divorce.
196
However, it is submitted that, as is the case in respect of an accrual claim, the date on which
the values of the spouses’ respective estates should be determined should be distinguished
from the date on which the successful claimant acquires his or her claim for redistribution.
Litis contestatio should be used as the date on which the values of the respective estates are to
197
be determined.

12.5.7 The criterion for establishing the extent of the redistribution

When the judicial discretion to redistribute assets was introduced into our law, some South
African courts adopted the guideline that one-third of the total value of the spouses’ assets
should be allocated to the spouse who owns fewer assets.198 This approach was in line with the
starting point which operated in English law at that stage.
In Beaumont v Beaumont 199 the Appellate Division rejected the one-third starting point and
all others. It held that the most important feature of our legislation which the court must take
into account when exercising its discretion, is its assessment of what is just having regard to
the factors specifically mentioned in the Divorce Act and “any other factor which should in
the opinion of the court be taken into account”.200 The Appellate Division required that the
court should start “with a clean slate” and then fill in “the void by looking at all the relevant
facts and working through all the relevant considerations, and finally exercising a discretion
as to what would be just, completely unfettered by any starting point”.201 In Beaumont the trial

________________________

190 Jordaan v Jordaan 2001 (3) SA 288 (C); see also Van Zummeren v Van Zummeren [1997] 1 All SA 91 (E).
191 1989 (3) SA 1 (A).
192 Par 6.
193 2014 (2) SA 430 (GJ).
194 The cases are Reeder v Softline [2000] 4 All SA 105 (W), 2001 (2) SA 844 (W); Le Roux v Le Roux [2010] JOL
26003 (NCK). The court also cited Willemse v Willemse Case 3600/2004, 12 September 2006 (FS) (unre-
ported).
195 Which the court called “a continuant right”: par 49.
196 See ch 7 above.
197 See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 101.
198 Beaumont v Beaumont 1985 (4) SA 171 (W); Van Gysen v Van Gysen 1986 (1) SA 56 (C); MacGregor v Mac-
Gregor 1986 (3) SA 644 (C).
199 1987 (1) SA 967 (A).
200 991F.
201 998F–G.
152 South African Family Law

court had awarded one-third of the combined value of the spouses’ assets to the wife. On
appeal, the Appellate Division had to decide whether the trial court had properly exercised its
discretionary power in making this award. As the Appellate Division found that the trial court
had not misdirected itself in any way and had not exercised its discretion improperly, it
confirmed the one-third award.
In Bezuidenhout v Bezuidenhout 202 the Supreme Court of Appeal subsequently reiterated that
the court must start with a clean slate and not use guidelines or starting points. It specifically
rejected the approach that equality should be the yardstick and that spouses’ estates should
be divided equally unless there is good reason for not doing so. The latter approach had been
adopted by the Cape Provincial Division of the High Court (now the Western Cape Division
203
of the High Court, Cape Town) in Childs v Childs. The Supreme Court of Appeal held that
“our courts are not entitled as a matter of course to ‘divide the joint net assets of the parties
204
equally, regardless of their respective known and unequal contributions’”. In Bezuidenhout
the wife inter alia performed domestic duties, worked for a third party, entertained her hus-
band’s friends and customers, and assisted her husband in his business. She later worked in
his business full time. The Supreme Court of Appeal expressed its agreement with the view
that the traditional role of housewife, mother and homemaker should not be undervalued
simply because it is not measurable in terms of money, and stated that it would take this role
into account. However, when it came to making an award in favour of the wife, the court solely
considered the wife’s participation in the family business. Thus she was, in effect, penalised for
bearing the double burden of being a homemaker and a businesswoman.205 As her contribu-
tion to the business was adjudged to be less than that of her husband because he was said to
have been “much more influential” in making the business a success, the court awarded only
40 percent of the combined value of the spouses’ assets to the wife.
In a subsequent decision, Kirkland v Kirkland,206 the Cape Provincial Division of the High
Court made an equal division of the spouses’ combined assets and ordered the wife to trans-
fer money to the husband to achieve this division. It held that the principle of equality,
coupled with the spouses’ intention that all assets should belong to both of them together
and the fact that the husband had made the major financial contribution to the growth and
maintenance of the spouses’ assets dictated that he should be entitled to half the assets. The
court did not view the decision in Bezuidenhout as a rejection of “the principle of equality as
such”. It stated that the Supreme Court of Appeal had merely found that the principle of
equality did not fit the facts in Bezuidenhout.
Despite judicial statements regarding the courts’ supposed recognition of domestic and
child-care responsibilities, it seems that the one-third/two-thirds division is still popular. In
Joubert v Joubert 207 the wife had not only performed domestic services and made financial con-
tributions towards the purchase of the couple’s two matrimonial homes, but had also given up
her job after the birth of the couple’s first child because her husband no longer wanted her
to pursue her career. In the trial court, the wife was awarded a third of the spouses’ assets. On
appeal, it was held that the trial court had made its one-third/two-thirds award after fully and
precisely considering all the facts of the case and had therefore not exercised its judicial dis-
cretion improperly. The award was accordingly not set aside. In Badenhorst v Badenhorst 208 the
Supreme Court of Appeal also reverted to a division of roughly one third/two thirds. In this
case, the wife had “performed the traditional role of mother”209 and also assisted her husband

________________________

202 [2004] 4 All SA 487 (SCA), 2005 (2) SA 187 (SCA).

203 2003 (3) SA 138 (C).
204 Par 20, quoting Kritzinger v Kritzinger 1989 (1) SA 67 (A) 77F–G.
205 See also Heaton 2005 SAJHR 561; Van Schalkwyk 2006 De Jure 639.
206 2006 (6) SA 144 (C).
207 [2004] 1 All SA 426 (C).
208 [2006] 2 All SA 363 (SCA), 2006 (2) SA 255 (SCA).
209 Par 4.
 Chapter 12: The patrimonial consequences of divorce 153

on their farm. She later became a successful estate agent. The court explained the way in
which it arrived at the amount to be awarded to the wife as follows:
This amount is arrived at by taking the total of the nett asset value of the parties’ estates and that
of the trust, calculating a percentage which is considered just and equitable for appellant’s con-
tribution and deducting what she already stands possessed of.210
The “just and equitable” percentage the court used was 34,79, which is suspiciously close to
one third. In view of the constitutional objective of substantive gender equality, the courts’
preference for the one-third/two-thirds division is unacceptable, as it suggests that even
though a homemaker and child-carer’s services qualify as a contribution, financial and busi-
ness contributions are more valuable.211 The one-third/two-thirds division is even more objec-
tionable in the case of wives who have not only fulfilled domestic and child-care responsibil-
212
ities but have also been occupied in the labour market.
Buttner v Buttner 213 offers a ray of hope in this regard. In this case, the Supreme Court of
Appeal ordered a husband to pay 50 percent of the amount that was left of the net proceeds
of the sale of the spouse’s matrimonial home to his wife.214 The husband was a quantity sur-
veyor and businessman, while the wife primarily took care of the domestic and child-care
responsibilities. When the couple’s first child was born, the wife resigned from her employ-
ment in order to raise the child. The decision that she should resign was taken by agreement
between the spouses. After the second child’s birth, the wife was at times employed as a part-
time travel agent and part-time estate agent. During their marriage, the parties pooled their
income and regarded the assets acquired through their joint efforts as joint assets. They regis-
tered some assets in the husband’s name and others in the wife’s. In making the redistribu-
tion award, Van Heerden JA held that
there is nothing to indicate that either party regarded the contributions made by the respond-
ent [that is, the wife] primarily as housewife and mother, as being less valuable than those made
by the appellant [that is, the husband], nor that the respondent’s contributions were any less in-
strumental than those of the appellant in the acquisition of assets by the parties.215
She further held that the division of labour between the spouses “was a conscious choice
made by both of them”.216 She concluded that “in these circumstances, fairness demands that
effect be given, on divorce, to the principle of equal sharing which the parties consciously
applied throughout their married life”.217

12.5.8 The form a redistribution order may take

The court has a very wide discretion in so far as the form of the redistribution order is con-
cerned.218 However, as the wording of the Act does not permit this, the court may not order
the party in whose favour the redistribution order operates to transfer some of his or her own
assets to the party against whom the redistribution order operates.219
________________________

210 Par 16.

211 See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 106; Costa Sept 2005 De
Rebus 20; Heaton 2005 SAJHR 562.
212 See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 106.
213 [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA).
214 This amount was less than 50 percent of the value of the assets which had not yet been divided between
the spouses. However, as this was all the wife claimed at the trial, it was all that was awarded to her. When
reading the judgment (esp the statement that in the circumstances of the marriage “fairness demands that
effect be given, on divorce, to the principle of equal sharing which the parties consciously applied
throughout their married life”: par 25) one gets the impression that the court would have awarded a larger
amount to the wife had she asked for it.
215 Par 25.
216 Ibid.
217 Ibid.
218 Beaumont v Beaumont 1987 (1) SA 967 (A); Childs v Childs 2003 (3) SA 138 (C).
219 Bezuidenhout v Bezuidenhout [2003] 3 All SA 82 (C), 2003 (6) SA 691 (C). This part of the decision of the
trial court was not overruled on appeal in Bezuidenhout v Bezuidenhout [2004] 4 All SA 487 (SCA), 2005 (2)
SA 187 (SCA).
154 South African Family Law

The court is not bound to order the transfer of a specific asset or assets to the successful
claimant – it may order that a sum of money be transferred instead.220 If the court orders one
of the spouses to transfer assets or a sum of money in lieu of assets to the other spouse, it may
impose such conditions as it deems just for the satisfaction of its order. These conditions may,
for example, be the furnishing of security, payment of interest,221 or payment by means of
instalments.222
In Kritzinger v Kritzinger 223 the Appellate Division held that a redistribution order may not be
used to award a spouse damages for the loss of the other spouse’s contribution to their com-
bined earning power if the other spouse caused the breakdown of the marriage.

12.5.9 Consideration of a claim and a counter-claim for redistribution

In Kritzinger v Kritzinger 224 the Appellate Division held that a claim and a counterclaim for re-
distribution should generally not be considered by means of a “globular” approach. The
claim and counterclaim should be considered separately to ensure that each gets the atten-
tion it deserves. However, in Buttner v Buttner 225 the same court subsequently indicated in an
obiter dictum that the view that the overall or globular approach should not be applied, is too
inflexible and may have to be reconsidered.

12.5.10 The nature of the discretion the court exercises

The issue of whether the court exercises a discretion in the broad or the narrow sense when it
decides whether to order redistribution of assets and, if so, what the scope of the redistribu-
tion should be, is the subject of some uncertainty. In Beaumont v Beaumont 226 the Appellate
Division held that the discretion is very wide and that an appeal court may interfere with the
discretion of the trial court only if the trial court misdirected itself with regard to the law or a
material finding of fact or otherwise failed to exercise its discretion properly. In Bezuidenhout v
Bezuidenhout 227 it was argued that this part of the decision in Beaumont has been overtaken by
later judgments of the Appellate Division which draw a distinction between a discretion in the
narrow or strict sense and a discretion in the broad sense.228 A discretion in the narrow sense
“involves a choice between two or more different, but equally permissible, alternatives”, while
a discretion in the broad sense refers to “a mandate to have regard to a number of disparate
and incommensurable features in arriving at a conclusion”.229 It is only in respect of a dis-
cretion in the narrow sense that an appeal court’s powers of interference are limited. In the
case of a discretion in the broad sense, an appeal court may “substitute its own discretion for
that of the trial court if it differs from such court on the merits and may make the order which
it deems just”.230 In Bezuidenhout the Supreme Court of Appeal assumed, without deciding the
issue, that an appeal court can interfere with the trial court’s discretion only if the trial court
misdirected itself; in other words, it assumed that the discretion the trial court exercises in
terms of section 7(3) to (6) of the Divorce Act is a narrow one. Subsequently, in Buttner v
Buttner 231 the Supreme Court of Appeal again found it unnecessary to decide whether section
________________________

220 Archer v Archer 1989 (2) SA 885 (E); Bezuidenhout v Bezuidenhout [2004] 4 All SA 487 (SCA), 2005 (2) SA
187 (SCA).
221 An appeal court may order the party against whom it makes a redistribution order to pay interest as from
the date of the judgment of the trial court: Kirkland v Kirkland 2006 (6) SA 144 (C).
222 S 7(6).
223 1989 (1) SA 67 (A); see also Kretschmer v Kretschmer 1989 (1) SA 566 (W).
224 1989 (1) SA 67 (A).
225 [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA) par 24.
226 1987 (1) SA 967 (A).
227 [2004] 4 All SA 487 (SCA), 2005 (2) SA 187 (SCA).
228 See eg Media Workers Association of South Africa v Press Corporation of South Africa Ltd (“Perskor”) 1992 (4) SA
791 (A); Knox D’Arcy Ltd v Jamieson 1996 (4) SA 348 (A).
229 Bezuidenhout v Bezuidenhout [2004] 4 All SA 487 (SCA), 2005 (2) SA 187 (SCA) par 17.
230 Buttner v Buttner [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA) par 20.
231 [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA).
 Chapter 12: The patrimonial consequences of divorce 155

7(3) to (6) confers a discretion in the broad or the narrow sense on the trial court. In both
Bezuidenhout and Buttner the court was satisfied that the trial court had indeed misdirected itself
and that it could therefore interfere even if the discretion of the trial court were a narrow
one.232

________________________

232 See also Kirkland v Kirkland 2006 (6) SA 144 (C).

 13
MAINTENANCE OF A SPOUSE AFTER DIVORCE

13.1 General
The common-law duty of support between spouses comes to an end when the marriage is
1
terminated. However, a new duty of support may arise upon divorce, in one of two ways.
Firstly, the couple may agree that one of them will pay maintenance to the other. This agree-
ment creates a contractual duty of support between the parties. In terms of section 7(1) of the
Divorce Act 70 of 1979, the court may make an order in accordance with the terms of the
parties’ settlement agreement, thereby conferring the additional force of an order of court
on the terms of the agreement.2 Secondly, if the spouses have not entered into a settlement
agreement, if the court does not deem it fit to make an order in accordance with the spouses’
settlement agreement, or if the parties do not request the court to make an order in accord-
ance with their settlement agreement, the court may make a maintenance order in terms of
section 7(2) of the Act. In the latter case, the foundation of the duty of support is the order
3
the court makes by virtue of the power section 7(2) confers on it. Thus, the duty of support
which flows from this order has a statutory foundation. It too is not merely an extension of
the common-law duty of support.4

13.2 Maintenance orders in terms of section 7(2) of the

Divorce Act 70 of 1979
13.2.1 General
Section 7(2) of the Divorce Act empowers the court which orders a divorce to make an order
it finds just in respect of the payment of maintenance by one party to the other for any period
until the death or remarriage of the party in whose favour the order operates. Either spouse
can be ordered to pay maintenance to the other. As section 7(2) couples a maintenance
order with a decree of divorce, a maintenance order cannot be granted in favour of a former
5
spouse after the marriage has been dissolved.

________________________

1 See ch 5 above, cases such as EH v SH 2012 (4) SA 164 (SCA), and the sources cited in fn 4 below.
2 See ch 12 above.
3 See also De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 126.
4 See eg Santam Bpk v Henery 1999 (3) SA 421 (SCA); Khan v Khan 2005 (2) SA 272 (T); Welgemoed v Mennell
[2007] 3 All SA 304 (SE), 2007 (4) SA 446 (SE); Botha v Botha 2009 (3) SA 89 (W). But see Zwiegelaar v
Zwiegelaar [2001] 1 All SA 261 (A), 2001 (1) SA 1208 (SCA) par 12 where the Supreme Court of Appeal
stated in an obiter dictum that the common-law duty of support normally ceases upon the dissolution of the
marriage but may be “extended after divorce if the court is satisfied having regard to the jurisdictional re-
quirements laid down in s 7(2) of the Act that it is just to do so” (emphasis in the original). On the founda-
tion of post-divorce spousal maintenance, see further De Jong and Heaton in Heaton (ed) Law of Divorce
and Dissolution of Life Partnerships 122–123; Heaton 2007 THRHR 642–643.
5 See eg Schutte v Schutte 1986 (1) SA 872 (A). See also Barratt (ed) Persons and the Family 357; De Jong and
Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 123.

157
158 South African Family Law

Neither spouse has a right to post-divorce maintenance, because the court has a discretion
to make a maintenance order.6 A maintenance order will be made only if the spouse who
7
seeks maintenance needs it and provides a factual basis for the making of the order. In EH v
8
SH the Supreme Court of Appeal held that in the absence of proof of need, “it would not be
‘just’ as required by this section for a maintenance order to be issued”. In other words, prov-
ing a need for maintenance is vital for obtaining a maintenance order in terms of section
7(2). The Supreme Court of Appeal further held that the mere fact that the spouse who is
seeking maintenance is living with another person in a life partnership does not disentitle
him or her to post-divorce maintenance. However, if he or she is being fully maintained by
the person with whom he or she is living, he or she does not need maintenance from his or
her former spouse. In these circumstances, post-divorce maintenance will not be awarded.
The court’s discretion is exercised with due regard to the factors that are listed in section
7(2). The requirement in section 7(2) that the court must make the order it finds just, de-
mands that no single factor should always predominate in deciding whether maintenance is
to be awarded and/or how much is to be awarded.9 The court’s approach thus is to consider
each case on its own merits in the light of all the facts and circumstances peculiar to it, and to
decide what is just.10
In Buttner v Buttner 11 the Supreme Court of Appeal held that justice must be effected
between the parties; in other words, a just maintenance order is one that effects justice
between the parties. In Botha v Botha 12 the Witwatersrand Local Division of the High Court
(now the Gauteng Local Division of the High Court, Johannesburg) held that a just mainte-
nance order contains “a moral component of what is thought to be ‘right’ and ‘fair’”. The
order must be “‘appropriate’ as between the parties” in the sense of being deserved and fair
when measured against the factors listed in section 7(2).13 Furthermore, the interests of both
spouses and the impact the order will have on each spouse must be considered.
Although the court must make a just maintenance order, it need not establish financial
equality between the parties, since any one or more of the factors the court must take into
account in terms of section 7(2) may justify a disparity of income between the parties.14

13.2.2 Factors the court must take into account15

Section 7(2) provides that the following factors must be taken into account when the court
makes its order:
(1) The spouses’ existing or prospective means.
(2) The spouses’ respective earning capacities.
(3) The spouses’ financial needs and obligations.
(4) Each spouse’s age.
(5) The duration of the marriage.
(6) The spouses’ standard of living during the marriage.
________________________

6 See eg Botha v Botha 2009 (3) SA 89 (W); AV v CV 2011 (6) SA 189 (KZP).
7 See eg Botha v Botha 2009 (3) SA 89 (W); AV v CV 2011 (6) SA 189 (KZP); EH v SH 2012 (4) SA 164 (SCA).
On calculating the amount of a spouse’s maintenance needs and the amount of a maintenance award, see
De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 141–143, 166–169.
8 2012 (4) SA 164 (SCA) par 13.
9 Grasso v Grasso 1987 (1) SA 48 (C).
10 See eg Swart v Swart 1980 (4) SA 364 (O); Grasso v Grasso 1987 (1) SA 48 (C); Beaumont v Beaumont 1987 (1)
SA 967 (A).
11 [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA), Heaton and Kruger Casebook on Family Law case [49].
12 2009 (3) SA 89 (W) par 46.
13 Ibid.
14 Reid v Reid 1992 (1) SA 443 (E).
15 For a more detailed discussion of the factors, see De Jong and Heaton in Heaton (ed) Law of Divorce and
Dissolution of Life Partnerships 128–134; Van Zyl in Clark (ed) Family Law Service pars C27–C33.
 Chapter 13: Maintenance of a spouse after divorce 159

(7) Each spouse’s conduct in so far as it may be relevant to the breakdown of the marriage.
(8) Any redistribution order in terms of section 7(3) of the Divorce Act.16
(9) Any other factor which, in the court’s opinion, should be taken into account.
In so far as the financial needs and obligations of the parties are concerned, the courts have
adopted conflicting views on whether expenses that extend beyond those of the claimant may
17
be taken into account. In Butcher v Butcher the court stated that in having to use the house-
hold budget to run the family home and provide groceries for a three-member household
consisting of the wife and the spouses’ two adult children, the wife incurred an obligation as
envisaged by section 7(2), even though the children have an independent right to claim
18 19
maintenance from their father. In MB v NB the court stated that in the process of deter-
mining a party’s maintenance claim on divorce “due allowance has to be made for much
more than just the party’s personal expenditure: for instance, the cost of providing for de-
pendants has to be brought into account, and this may range beyond those with a legal claim,
20
and embrace moral claims by siblings, parents and even friends”. However, in Botha v Botha,
which was decided in the same division of the High Court as MB v NB, the court disapproved
of the inclusion of amounts relating to an adult child from a previous relationship, colleagues
and friends. It is submitted that the view in MB v NB is too lenient. It seems just to include
expenses relating to the parties’ adult dependent children, but the same cannot be said of
21
expenses relating to colleagues or friends or moral claims (as opposed to legal claims).
In respect of the spouses’ standard of living, the courts no longer seem to favour the view
that was adopted in cases like Grasso v Grasso 22 and Pommerel v Pommerel 23 namely, that if one of
the parties is wealthy, there is no reason why the other party should have to drop his or her
standard of living after divorce or enter the labour market. Thus, for example, it was held in
Botha v Botha 24 that merely establishing that the poorer spouse’s income is insufficient to
enable her to sustain the standard of living the spouses enjoyed during the subsistence of the
marriage and that the other spouse can afford to pay maintenance does not comply with
section 7(2) and does not achieve justice as between the parties. Regardless of whether or not
one approves of the approach that is evident from cases like Botha, the reality for most divorc-
ing couples is that neither spouse is wealthy enough to be able to support two households at
the same standard of living the spouses enjoyed while they were married. Accordingly, the
courts normally accept that both spouses have to adopt a lower standard of living after divorce.
In reality, however, it is usually the former wife whose standard of living drops most. Wives are
usually at least partly financially dependent on their husbands. As is indicated below in this
chapter, the courts have become loath to make permanent maintenance awards. Nowadays
they tend to favour the clean break and award rehabilitative maintenance or no maintenance
25
at all. Another reason for the drop in a woman’s standard of living after divorce is that even
if maintenance is awarded to a wife upon divorce, she often struggles to enforce the mainte-
27
nance order.26 Furthermore, the amount that is awarded as maintenance is usually low.
________________________

16 On redistribution orders, see ch 12 above.

17 2009 (2) SA 421 (C), Heaton and Kruger Casebook on Family Law case [62] par 17.
18 On maintenance for adult, dependent children, see ch 23 below.
19 2010 (3) SA 220 (SGJ), Heaton and Kruger Casebook on Family Law case [88] 231C.
20 2009 (3) SA 89 (W).
21 See also De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 131.
22 1987 (1) SA 48 (C).
23 1990 (1) SA 998 (E), Heaton and Kruger Casebook on Family Law case [53].
24 2009 (3) SA 89 (W).
25 In Pillay v Pillay 2004 (4) SA 81 (SEC) the court summarised the circumstances where the courts are
inclined to award little or no maintenance: the spouse who seeks maintenance is young or relatively young,
is well qualified, has no (young) children he or she needs to look after, has worked throughout the mar-
riage and/or is working at the time when he or she applies for maintenance and/or is in good health,
and/or the marriage was of short duration.
26 See ch 5 above on the enforcement of maintenance orders.
27 See further De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 119–122.
160 South African Family Law

A spouse’s misconduct may be taken into account when a maintenance order is made, but
not at the expense of fairness.28 Furthermore, only misconduct which has a bearing on the
breakdown of the marriage is relevant.29 Fault assumes greater relevance if the misconduct of
one of the parties was gross,30 especially if the other party was prepared to attempt a reconcili-
ation.31 Domestic violence which contributed to the breakdown of the marriage should also to
32
be taken into account as gross misconduct.
Some of the “other” factors the courts have taken into account in respect of maintenance
for a spouse after divorce are the child-care responsibilities of the spouse who is claiming
maintenance;33 the best interests of the spouses’ children;34 the inflation rate;35 the frankness
with which each party conveyed their financial position and needs;36 and the patriarchal nature
of the spouses’ marriage.37 It has been suggested that the courts should also consider the
38
economic advantages and disadvantages arising from the marriage. The income tax implica-
39
tions of maintenance payments should also be taken into account.
13.2.3 The movement towards rehabilitative maintenance or no maintenance
at all
In the past, women were usually financially dependent on their husbands, and it was generally
accepted that a husband had to maintain his former wife until her death or remarriage –
especially if the dissolution of the marriage was his fault. This position has changed. Women
who are in paid employment are increasingly denied maintenance, because they are assumed
to be able to meet their own maintenance needs even if they have a much lower earning
capacity than their husband.
The courts also increasingly expect of women who are not engaged in paid employment at
all or who are engaged in only limited paid employment to take up or to increase their
participation in such employment after divorce, and grant employable women rehabilitative
maintenance only.40 In other words, women who have an earning capacity are awarded
maintenance only for a limited, fixed period, sufficient to tide them over while they are being
trained or retrained to take up paid employment or to increase their participation in such
employment, while assets are being transferred, or while therapy is being provided.41 In Botha
________________________

28 Swart v Swart 1980 (4) SA 364 (O).

29 Ibid.
30 Beaumont v Beaumont 1987 (1) SA 967 (A); Buttner v Buttner [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA).
31 Grasso v Grasso 1987 (1) SA 48 (C).
32 See also Bonthuys in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 490; De Jong and Heaton
in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 134.
33 See eg Kroon v Kroon 1986 (4) SA 616 (E), Heaton and Kruger Casebook on Family Law case [52]; Grasso v
Grasso 1987 (1) SA 48 (C); Buttner v Buttner [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA); Kooverjee v
Kooverjee [2006] 4 All SA 369 (C), 2006 (6) SA 127 (C).
34 See eg Grasso v Grasso 1987 (1) SA 48 (C); Kooverjee v Kooverjee [2006] 4 All SA 369 (C), 2006 (6) SA 127 (C).
S 28(2) of the Constitution and ss 6(2) and 9 of the Children’s Act 38 of 2005 afford paramountcy to the
child’s best interests.
35 Vedovato v Vedovato 1980 (1) SA 772 (T); Brink v Brink 1983 (3) SA 217 (D); Grasso v Grasso 1987 (1) SA 48
(C); Osman v Osman 1992 (1) SA 751 (W).
36 Kooverjee v Kooverjee [2006] 4 All SA 369 (C), 2006 (6) SA 127 (C).
37 Ibid.
38 De Jong 1999 THRHR 84.
39 See further De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 142–143;
De Matos Ala 2011 SALJ 17.
40 Rehabilitative maintenance is simply a type of maintenance and not “an animal of its own”: Kruger v Goss
[2010] 1 All SA 422 (SCA), 2010 (2) SA 507 (SCA).
41 See eg Singh v Singh 1983 (1) SA 781 (C); Kroon v Kroon 1986 (4) SA 616 (E); Grasso v Grasso 1987 (1) SA 48
(C); V v V 1998 (4) SA 169 (C); Joubert v Joubert [2004] 1 All SA 426 (C); Pillay v Pillay 2004 (4) SA 81 (SE);
Kooverjee v Kooverjee [2006] 4 All SA 369 (C), 2006 (6) SA 127 (C); Botha v Botha 2009 (3) SA 89 (W); MB v
NB 2010 (3) SA 220 (GSJ); AV v CV 2011 (6) SA 189 (KZP). See also De Jong 1999 THRHR 77 who under-
took an empirical study in the Transvaal Provincial Division of the High Court (now the Gauteng Division
of the High Court, Pretoria) which showed that this trend was already evident in this court in 1997.
 Chapter 13: Maintenance of a spouse after divorce 161

v Botha 42 the court described the purpose of rehabilitative maintenance as enabling the
spouse who
has been disadvantaged or disabled in some way by the marriage . . . through training or therapy
or opportunity, to be restored either to the economic position vis-à-vis employment which she
occupied prior to the marriage, or to be reintroduced to the ability to participate effectively and
profitably in normal economic life.
The court thus expressly required a causal connection between the marriage and the spouse’s
inability to be self-supporting. In the circumstances of Botha, the court concluded that the
wife did not need rehabilitative maintenance as there was no evidence that she was “less able
to support herself or has suffered in her ability to support herself by reason of the marriage”,
that she earned less than she would have earned if she had not married her husband, that her
employment was less secure, or that rehabilitative maintenance would enable her to support
herself at a higher standard of living from her own income.43 The wife was therefore not
awarded any maintenance at all.
In Kooverjee v Kooverjee 44 the court held that although the courts frequently limit rehabilita-
45
tive maintenance to periods ranging from six to 18 months, “a proper analysis of the
rationale behind the awarding of rehabilitative maintenance will conclude that an arbitrary
period for the payment of rehabilitative maintenance will not address the ultimate achieve-
ment of self-sufficiency”. This dictum is most welcome and it is hoped that the courts will in
future adopt a more realistic approach towards the period it takes for the spouse who has the
lower earning capacity to become financially self-sufficient. In Kooverjee the court referred to
the high standard of living the spouses had enjoyed during the subsistence of the marriage,
the husband’s ability to maintain that standard of living, and the fact that continued care of the
couple’s children by their mother would be in their best interests. The court was of the view
that in the circumstances of this case it was possible for both parties to maintain their standard
of living after the divorce while simultaneously enabling the wife to become self-supporting.
The court made a tapered award for rehabilitative maintenance, which took account of the
wife’s decreasing need to devote time to child-care as her children grew older. The mainte-
nance decreased every two years and was payable until the children completed their tertiary
education or became self-supporting, or for a period of ten years, whichever event occurred
first. In addition, the husband was ordered to pay the wife’s medical expenses as well as
expenses relating to her moving to a different house and relating to the installation of a
telephone and electricity in that house.
If it is alleged that a wife should be able to support herself by entering the labour market
but she does not want to do so, the court must consider whether her decision not to enter the
labour market is reasonable in the circumstances of the particular case.46 The mere fact that
she is able to earn an income does not in itself disentitle her to maintenance.47 Furthermore,
no notional earning capacity will be attributed to a woman who does not have the necessary
skills to enable her to be trained or retrained for a job, occupation or profession after di-
vorce.48 The factors the court takes into account to determine whether the wife should enter
the labour market include her age and health; the duration of the marriage; the parties’ stan-
dard of living during the marriage; the length of the wife’s absence from the labour market;
whether she has any marketable skills; and her child-care commitments.49

________________________

42 2009 (3) SA 89 (W) par 106.

43 Par 107.
44 [2006] 4 All SA 369 (C), 2006 (6) SA 127 (C) par 11.2.12(ix), Heaton and Kruger Casebook on Family Law case
[54].
45 See eg V v V 1998 (4) SA 169 (C); Joubert v Joubert [2004] 1 All SA 426 (C); Pillay v Pillay 2004 (4) SA 81 (SEC).
46 Pommerel v Pommerel 1990 (1) SA 998 (E).
47 Ibid.
48 Kroon v Kroon 1986 (4) SA 616 (E).
49 Ibid; Pommerel v Pommerel 1990 (1) SA 998 (E).
162 South African Family Law

The movement away from permanent maintenance orders is in keeping with the clean-
break principle, which seeks to make spouses economically independent from each other as
soon as possible after divorce.50 Unfortunately, the clean-break principle is all too frequently
applied in a way that ignores or underplays the long-term consequences of the domestic and
child-care responsibilities women bear both during the subsistence of the marriage and after
its dissolution and the career sacrifices many of them make. Thus it is falsely assumed that “a
woman who has in the past not invested as much in her career as her husband, can merely
resume a full-time job and quickly advance to a state of equal economic independence”.51 The
result is that women and the children in their care predominantly bear the financial costs of
divorce.52 The courts should attach proper weight to the domestic and child-care responsi-
bilities women bear and the career sacrifices they make which render true financial self-
sufficiency illusory for many of them. The decision in Kooverjee v Kooverjee 53 is encouraging in
this regard. The court stressed that the de facto roles of women in society must not be ignored
and that “forcing a model of formal equality onto our society, may just reinforce the existing
unequal roles and hamper the achievement of true and substantive equality”.54 Ignoring past
inequalities contributes to continued discrimination against women. In respect of the earning
capacity of spouses, the court must therefore take into account “that the division of roles in
families, influence[s] not only the past earning capacity of the parties, but also their future
earning capacities”.55

13.2.4 Lump-sum maintenance

In the past, the courts have held that section 7(2) does not empower them to order that
maintenance must be paid by way of a lump sum (that is, by way of a single amount instead of
periodic payments).56 They argued that, as section 7(2) provides that the court must make a
maintenance order “for any period” until the death or remarriage of the party in whose
favour the order operates, the legislator clearly had periodic payments in mind. They further
relied on the analogy provided by section 1 of the Maintenance Act 23 of 1963, which defined
a maintenance order as “any order for the periodical payment of sums of money towards the
maintenance of any person”. The latter argument fell away when the Maintenance Act 99 of
1998 came into operation, as section 1 of this Act empowers the Maintenance Court to make
an order for the payment of maintenance by way of a lump sum.
In Zwiegelaar v Zwiegelaar 57 the Supreme Court of Appeal took the first step towards lump-
sum maintenance awards by holding that a spouse may be ordered to pay monthly mainte-
nance as well as a lump sum for household necessaries (that is, a so-called “resettlement

________________________

50 See eg Beaumont v Beaumont 1987 (1) SA 967 (A), Heaton and Kruger Casebook on Family Law case [47];
Archer v Archer 1989 (2) SA 885 (E); Katz v Katz 1989 (3) SA 1 (A); Pillay v Pillay 2004 (4) SA 81 (SE); Koover-
jee v Kooverjee [2006] 4 All SA 369 (C), 2006 (6) SA 127 (C); Botha v Botha 2009 (3) SA 89 (W); AV v CV 2011
(6) SA 189 (KZP). On the clean-break principle, see further ch 12 above.
51 Clark and Goldblatt in Bonthuys and Albertyn (eds) Gender, Law and Justice 220.
52 See eg De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 119–121; De
Jong 1999 THRHR 75. See further Bonthuys 2001 THRHR 192 who analyses the interrelationship between
care, property division and post-divorce maintenance and shows that the rules regarding property division
and maintenance favour men at the expense of their ex-wives and children.
53 [2006] 4 All SA 369 (C), 2006 (6) SA 127 (C).
54 Par 11.2.6.
55 Par 11.2.11.
56 Purnell v Purnell 1989 (2) SA 795 (W); Zwiegelaar v Zwiegelaar [1998] 4 All SA 151 (C), 1999 (1) SA 1182 (C).
See also Schmidt v Schmidt 1996 (2) SA 211 (W) and Martin v Martin 1997 (1) SA 491 (N), which dealt with
the meaning of the comparable phrase “periodical payment” in s 1 of the Maintenance Act 23 of 1963, and
Greenspan v Greenspan 2000 (2) SA 283 (C) where the court held that it does not have the power to make a
lump-sum award for interim maintenance in terms of rule 43 of the Uniform Rules of Court. On rule 43,
see ch 15 below.
57 [2001] 1 All SA 261 (A), 2001 (1) SA 1208 (SCA) par 16, Heaton and Kruger Casebook on Family Law case
[55].
 Chapter 13: Maintenance of a spouse after divorce 163

allowance”). The court found that the periodic maintenance payments section 7(2) envisages
need not all be equal in size, and that
[i]n principle there can be no objection to an order which in effect makes provision for fixed
monthly payments but in respect of one or more months makes provision for the payment of an
increased amount, or provides for recurring, unquantified future amounts such as medical ex-
penses or school fees.58
59
In view of the subsequent decision of the Supreme Court of Appeal in Oshry v Feldman it
60
should be clear that the court may make lump-sum awards. In this case, it was held that the
court may award lump-sum maintenance in terms of the Maintenance of Surviving Spouses
61
Act 27 of 1990. Although the facts of the decision limit the judgment to lump-sum mainte-
nance for a surviving spouse, some of the dicta are framed in broad terms and are equally
62
applicable to lump-sum post-divorce maintenance. The court held that the earlier cases in
which the view had been adopted that maintenance excludes a lump-sum amount were no
longer applicable as they were either based on the 1963 Maintenance Act or failed to take
into account that the definition of “maintenance order” in the 1963 Act was no longer in
operation. Section 1 of the 1998 Maintenance Act defines a maintenance order as “any order
for the payment, including the periodical payment, of sums of money towards the mainte-
nance of any person issued by any court in the Republic”. The 1998 Act therefore does not
exclude the payment of maintenance in the form of a lump sum.

13.2.5 Token or nominal maintenance

If there is no reason to make a maintenance order at the time of the divorce, but it is foreseen
that one of the spouses may need maintenance at some future stage and/or that the mainte-
nance debtor will be able to meet the claimant’s existing maintenance needs at some stage in
63
the future, the court may make an order for token or nominal maintenance (that is, a small
monthly amount, such as R1 or R10). The nominal maintenance award can later be varied to
a more meaningful amount if this becomes necessary.64 The reason why courts make orders
for token maintenance is that if a spouse does not get a maintenance order upon divorce, he
65
or she can never get one.
In the past, some courts granted orders for token maintenance more or less as a matter of
course without properly considering the factors in section 7(2) of the Divorce Act.66 This
approach provided the claimant spouse with a free policy against the normal risks of life with
67
the maintenance debtor as the insurer, so to speak. Other courts adopted a stricter
68
approach. For example, in Qoza v Qoza the court held that the factors in section 7(2) must
be taken into account in order to decide, firstly, whether there is a need for maintenance to
be paid and, if so, by whom to whom. The factors must further be taken into account in order

________________________

58 See also the order the court made in Kooverjee v Kooverjee [2006] 4 All SA 369 (C), 2006 (6) SA 127 (C).
59 2010 (6) SA 1 (SCA), Heaton and Kruger Casebook on Family Law case [40].
60 But see M v M (2011/12734) [2011] ZAGPJHC 176, 23 November 2011, where the court in an obiter dictum
doubted whether a lump-sum award is competent.
61 On maintenance in terms of the Maintenance of Surviving Spouses Act, see ch 10 above.
62 See also De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 138–139;
Heaton 2010 Annual Survey of South African Law 483.
63 See eg Caesar v Caesar 1973 (2) SA 760 (R); Nel v Nel 1977 (3) SA 288 (O); Hurn v Hurn 1978 (3) SA 252
(E); Zeeman v Zeeman 1979 (2) SA 222 (C); Swart v Swart 1980 (4) SA 364 (O); Brink v Brink 1983 (3) SA 217
(D); Buttner v Buttner 2006 (3) SA 23 (SCA); MG v RG 2012 (2) SA 461 (KZP).
64 Variation can be sought in terms of s 8 of the Divorce Act or s 16 of the 1998 Maintenance Act.
65 See above in this chapter.
66 See eg Nel v Nel 1977 (3) SA 288 (O); Portinho v Portinho 1981 (2) SA 595 (T).
67 See eg Ford v Ford 1965 (1) SA 264 (D); Hurn v Hurn 1978 (3) SA 252 (E); Brink v Brink 1983 (3) SA 217
(D); Swart v Swart 1980 (4) SA 364 (O).
68 1989 (4) SA 838 (Ck); see also Lincesso v Lincesso 1966 (1) SA 747 (W); Portinho v Portinho 1981 (2) SA 595
(T); Schutte v Schutte 1986 (1) SA 872 (A).
164 South African Family Law

to decide the amount that has to be paid and the period for which it is to be paid.69 An order
for token maintenance should therefore not be made unless it is shown that the order is
needed. The latter approach was approved and adopted by the Supreme Court of Appeal in
Buttner v Buttner.70 Thus a nominal maintenance award may no longer be made as a matter of
course. It may be made only if application of the factors in section 7(2) to the facts and
71
circumstances of the particular case indicates that such an award is just.

13.3 Rescission, suspension and variation of a maintenance order

13.3.1 General
A maintenance order which was made in terms of the Divorce Act may be rescinded, sus-
pended or varied in terms of section 8(1) of the Act72 if there is sufficient reason for doing so.73
In Cohen v Cohen 74 the Supreme Court of Appeal held that if a Maintenance Court simply
varies the amount of maintenance which is payable in terms of an existing High Court order
and does not expressly or by necessary implication deal with other aspects of the order, those
other aspects remain in force. Thus, for example, a dum casta clause (that is, a clause which
provides that the maintenance recipient will forfeit maintenance if he or she leads an unchaste
life) does not cease to be of force if a Maintenance Court varies the amount of maintenance
that is payable and fails to repeat the dum casta clause in its order.75 The Maintenance Act was
76
subsequently amended in keeping with the decision in Cohen.

________________________

69 But see Ford v Ford 1965 (1) SA 264 (D); Brink v Brink 1983 (3) SA 217 (D). In Brink the court intimated
that inflation constitutes a strongly persuasive factor when a nominal maintenance order is being consid-
ered.
70 [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA).
71 But see MG v RG 2012 (2) SA 461 (KZP), where the court held that making a token maintenance order in
favour of an indigent woman, whose husband did not oppose the divorce action, would be in keeping with
the judgments of the Constitutional Court which require judicial awareness of the vulnerability of women
as a group and with the court’s duty to ensure that the rights in the Bill of Rights are protected, “particular-
ly in cases where because of particular vulnerability those who approach courts for relief might not fully
understand their rights or court processes”: par 24. The court further stated that failing to order token
maintenance would mean that the wife could never claim maintenance even if her circumstances changed
and that “[t]he consequences in such scenario are self-evidently disastrous for the appellant”. These dicta
create the unfortunate impression that women from poor, uneducated backgrounds are more or less en-
titled to token maintenance. Such an approach to granting token maintenance to any category of women is
not in keeping with Buttner v Buttner [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA) and is not support-
ed. See also Heaton 2012 Annual Survey of South African Law 356.
72 If an order that was made upon divorce deals only with medical expenses and not with other aspects of
maintenance, the order still qualifies as one dealing with maintenance. It can therefore be amended in
terms of s 8: Van Aswegen v Van Aswegen 2006 (5) SA 221 (SE).
73 But see Botha v Botha 2005 (5) SA 228 (W) where the court, clearly incorrectly, held that s 8 relates only to
variation of orders made in respect of children. Our courts regularly rely on s 8 as empowering them to
vary a maintenance order made in favour of a former spouse: see eg Purnell v Purnell 1989 (2) SA 795 (W);
Reid v Reid 1992 (1) SA 443 (E); Rubenstein v Rubenstein 1992 (2) SA 709 (T); Van Aswegen v Van Aswegen
2006 (5) SA 221 (SE); Georghiades v Janse van Rensburg 2007 (3) SA 18 (C); Welgemoed v Mennell [2007] 3 All
SA 304 (SE), 2007 (4) SA 446 (SE); Bond v Bond [2009] JOL 23915 (C). For criticism of the decision in
Botha, see Van Schalkwyk 2007 De Jure 425. For a discussion of the conflicting case law on the appropriate
forum in respect of the application for rescission, suspension or variation, see De Jong and Heaton in
Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 145–147.
74 2003 (3) SA 337 (SCA).
75 See also Botha v Botha 2005 (5) SA 228 (W).
76 S 22 of the Maintenance Act.
 Chapter 13: Maintenance of a spouse after divorce 165

13.3.2 The meaning of “sufficient reason” for purposes of section 8(1) of the
Divorce Act 70 of 1979
The expression “sufficient reason” that is used in section 8(1) of the Divorce Act is not defin-
able. Whether sufficient reason is present is a factual question which must be answered in
view of the circumstances of each case. The applicant bears the burden of proving that suffi-
cient reason exists.77
Although some courts have held that the circumstances which prevailed when the mainte-
nance order was granted must have changed substantially before section 8(1) can be success-
fully invoked,78 others have not required proof of a change in circumstances.79 As a general
rule, sufficient reason will be absent unless the circumstances have changed materially.
However, changed circumstances are not a statutory prerequisite and there may be situations
in which sufficient reason is present without a material change of circumstances having taken
place.80
The courts are generally unwilling to vary maintenance which was agreed on in a settle-
ment agreement, firstly, because settlement agreements usually reflect a “package deal” and
the courts do not want to rewrite settlement agreements and, secondly, because the courts
support the principle of pacta sunt servanda (that is, agreements must be complied with).81
A maintenance order will not be varied merely because one party is dissatisfied with it.82
Nor will a maintenance order be varied simply because the applicant agreed to an unjust
settlement on divorce.83 Special circumstances must be proved before the court will permit a
party to question the justness of the existing maintenance order. Thus, when the existing
order results in a disparity of income between the parties, such disparity should generally
continue as it is not the function of the court which varies an existing maintenance order to
bring about parity between the parties.84 However, fraudulent non-disclosure of information
which, if disclosed, would have led to a lesser amount being awarded as maintenance or no
amount being awarded at all, does constitute sufficient reason for variation or rescission.85
The party who alleges that the order should be varied or rescinded on the ground of such
non-disclosure bears the onus of proving the extent to which the maintenance would have
been less had the truth been told or proving that no maintenance would have been awarded
at all.86
The remarriage of the party who must pay maintenance is usually not considered sufficient
reason for variation of the maintenance order87 as the courts are reluctant to vary an order
when a person’s difficulty in meeting his or her obligations results from his or her own volun-
tary undertaking of extra responsibilities. In Davis v Davis 88 it was held that this rule should
also apply in reverse. In this case, the court refused to take the added expenditure caused by a
________________________

77 Reid v Reid 1992 (1) SA 443 (E); Van Aswegen v Van Aswegen 2006 (5) SA 221 (SE).
78 See eg Roos v Roos 1945 TPD 84; Hancock v Hancock 1957 (2) SA 500 (C); Pieterse v Pieterse 1965 (4) SA 344
(T); Reid v Reid 1992 (1) SA 443 (E); Sparks v Sparks 1998 (4) SA 714 (W).
79 Havenga v Havenga 1988 (2) SA 438 (T); Beukes v Beukes 1995 (4) SA 429 (O); Douglas v Douglas [1996] 2 All
SA 1 (A); Van Aswegen v Van Aswegen 2006 (5) SA 221 (SE).
80 Ibid.
81 See eg Reid v Reid 1992 (1) SA 443 (E); Botha v Botha 2005 (5) SA 228 (W); Van Aswegen v Van Aswegen 2006
(5) SA 221 (SE); Georghiades v Janse van Rensburg 2007 (3) SA 18 (C); Bond v Bond [2009] JOL 23915 (C).
82 Sparks v Sparks 1998 (4) SA 714 (W).
83 Reid v Reid 1992 (1) SA 443 (E).
84 Ibid.
85 Hotz v Hotz 2002 (1) SA 333 (W).
86 Ibid.
87 Hancock v Hancock 1957 (2) SA 500 (C); Van der Walt v Van der Walt 1961 (4) SA 854 (O); Heinrich v Heinrich
1968 (2) PH B9 (SWA); Dawe v Dawe 1980 (1) SA 141 (Z); Reid v Reid 1992 (1) SA 443 (E); but see also Chi-
zengeni v Chizengeni 1989 (1) SA 454 (Z). Van Schalkwyk 2002 De Jure 155 supports the decision in Chi-
zengeni. He argues that failing to recognise the liable party’s remarriage as sufficient reason for variation
amounts to unfair discrimination against the liable party’s new spouse.
88 1993 (1) SA 293 (SE).
166 South African Family Law

woman’s voluntary emigration to England into account as a factor justifying an increase in

maintenance.
The mere fact that the party in whose favour the maintenance order operates lives with
another person does not constitute sufficient reason for rescission of the maintenance order,
unless the maintenance order expressly includes a dum casta clause.89 As indicated above, a
dum casta clause provides that the maintenance recipient will forfeit maintenance if he or she
leads an unchaste life. Nowadays the clause is usually limited to living with another person in
a life partnership.90 In the absence of a dum casta clause, the fact that the person is being
maintained by his or her life partner can be taken into account in determining his or her
need for maintenance if a variation of the maintenance order is sought. However, in view of
91
the decision of the Supreme Court of Appeal in EH v SH logic dictates that the mere fact
that the maintenance recipient is a party to a life partnership does not justify rescission of the
maintenance order.
On its own, inflation does not constitute sufficient reason to justify an increase in mainten-
ance. However, it is one of the factors which are taken into account when variation of a main-
tenance order is sought, especially in respect of evaluating the ability of the party against whom
the order operates to pay more and the other party’s need for more maintenance.92

13.3.3 Waiver of the right to claim rescission, suspension or variation of a

maintenance order
Prior to the then Appellate Division’s decision in Schutte v Schutte 93 it was unclear whether the
parties to a divorce action could renounce their right to approach the court for rescission,
variation or suspension of a maintenance order. In Schutte a divorcing couple concluded a
settlement agreement in terms of which the husband undertook to pay a specific amount of
maintenance to the wife. This obligation was made subject to the provision that the mainte-
nance would not be increased or reduced. The Appellate Division held that this provision was
valid and that a settlement agreement containing such a clause could be made an order of
court in terms of section 7(1) of the Divorce Act. It should be noted that in this case the
provision bound both parties in the sense that the agreed maintenance was subject to neither
increase nor reduction. The court did not express a view on whether or not a unilateral
waiver of the right to approach the court (for example, if only the right to seek an increase
were excluded) would be valid.
In Polliack v Polliack 94 the question of unilateral waiver did not arise, but Roux J asked the
following question in an obiter dictum:
[I]f it is competent, not unlawful and contra bonos mores for two persons to contract out of and
not rely upon . . . s 8(1) [of the Divorce Act], why should it be incompetent, unlawful and contra
bonos mores for one or three persons to do exactly the same thing?
It is submitted that there is no reason why a unilateral waiver should not be allowed.95 Our
courts seem to have adopted this view too, for today they deal with unilateral waivers without
questioning their validity.96 However, our courts do not lightly find that a party has waived his
________________________

89 Watson v Watson 1959 (1) SA 185 (N); Hughes v The Master 1960 (4) SA 936 (C); Schlesinger v Schlesinger 1968
(1) SA 699 (W); Drummond v Drummond 1979 (1) SA 161 (A).
90 As a dum casta clause imposes a one-sided sanction on the maintenance recipient, who is usually the wife,
and thus provides the maintenance debtor with a means of controlling the life and sexuality of the mainte-
nance recipient, it allows an ex-husband to use money to retain control over his ex-wife, which constitutes
unjustifiable sex and gender inequality in violation of s 9(3) of the Constitution: Heaton Bill of Rights Com-
pendium par 3C27.
91 2012 (4) SA 164 (SCA).
92 Kommissaris van Binnelandse Inkomste v Steyn 1992 (1) SA 110 (A).
93 1986 (1) SA 872 (A). In Girdwood v Girdwood 1995 (4) SA 698 (C), Van Zyl J criticised the decision in Schutte.
See also Davis v Davis 1993 (1) SA 621 (C); Luttig v Luttig 1994 (1) SA 523 (O).
94 1988 (4) SA 161 (W); see also Luttig v Luttig 1994 (1) SA 523 (O).
95 See also Hahlo, 5th edn, 369; Visser and Potgieter 196.
96 See eg Van Aswegen v Van Aswegen 2006 (5) SA 221 (SE); Georghiades v Janse van Rensburg 2007 (3) SA 18 (C).
 Chapter 13: Maintenance of a spouse after divorce 167

or her right to seek variation of a maintenance order, and they are by no means in agreement
on what constitutes a waiver.97

13.4 Termination of a maintenance order

13.4.1 General
A maintenance order is terminated if a court rescinds it. Insolvency does not terminate a
maintenance order.98 Nor does the maintenance debtor’s remarriage terminate his or her
duty to pay maintenance to his or her former spouse.

13.4.2 An order in terms of section 7(1) of the Divorce Act 70 of 1979

If the court makes an order in terms of section 7(1) of the Divorce Act in accordance with the
terms of a settlement agreement that provides for payment of maintenance, the provisions of
the agreement determine when the maintenance obligation comes to an end. Thus, the duty
to pay maintenance terminates on the death of the maintenance debtor if the agreement so
provides. If the agreement is silent on or gives rise to doubt as to whether the obligation
continues after the maintenance debtor’s death, the courts favour continuation.99
As the entitlement to maintenance vests in a particular natural person, an order made in
terms of section 7(1) comes to an end when the maintenance recipient dies, regardless of
what the settlement agreement may provide.100
If the settlement agreement contains an express agreement that the maintenance debtor
will continue paying maintenance after the maintenance recipient has remarried,101 the order
is not terminated by the maintenance recipient’s remarriage. The issue of whether the duty
continues if the settlement agreement is silent regarding the maintenance recipient’s remar-
riage has been the subject of a number of conflicting decisions. Two conflicting approaches
have been adopted: one is that the duty terminates upon the recipient’s remarriage102 and the
other is that it does not.103
In Odgers v De Gersigny 104 the Supreme Court of Appeal dealt with the issue in the context of
a settlement agreement that was never made an order of court. The agreement provided that
the husband would pay maintenance to his wife for 24 months and included a non-variation
clause. Two months after their divorce, the wife remarried. Maya JA held that, in view of the
provision in the settlement agreement, the husband had to continue paying maintenance for
the remainder of the 24 months, despite his former wife’s remarriage. She held that regard-
less of whether or not a settlement agreement is made an order of court in terms of section
7(1), the terms of the agreement must be interpreted to determine when the duty to pay
maintenance comes to an end. She approved of the approach to the interpretation of

________________________

97 On the case law dealing with the interpretation of clauses relating to alleged waivers, see De Jong and
Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 153–155.
98 Weinberg v Weinberg 1958 (2) SA 618 (C).
99 See eg Colly v Colly’s Estate 1946 WLD 83; Owens v Stoffberg 1946 CPD 226; Hughes v The Master 1960 (4) SA
936 (C); Kruger v Goss 2010 (2) SA 507 (SCA).
100 De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 164; Heaton 2007
THRHR 644. See also Hodges v Coubrough 1991 (3) SA 58 (D); Odgers v De Gersigny 2007 (2) SA 305 (SCA);
Van Schalkwyk 2002 De Jure 144; Sonnekus 2007 TSAR 360. But see the incorrect remark in Welgemoed v
Menell [2007] 3 All SA 304 (SE), 2007 (4) SA 446 (SE) that the parties can agree that maintenance will
be payable beyond the death of the maintenance recipient.
101 Such a clause is valid: Hahlo, 5th edn, 356; Hahlo 1981 SALJ 334; Van Schalkwyk 2002 De Jure 148;
Heaton 2007 THRHR 644.
102 Geldenhuys v Meyers Case 556/96, 19 July 1996 (SEC) (unreported); Van der Vyver v Du Toit 2004 (4) SA
420 (T).
103 Smit v Pienaar Case 13829/94, 20 Nov 1997 (C) (unreported); Welgemoed v Mennell [2007] 3 All SA 304
(SE), 2007 (4) SA 446 (SE).
104 2007 (2) SA 305 (SCA), Heaton and Kruger Casebook on Family Law case [56].
168 South African Family Law

settlement agreements which had been adopted in Hodges v Coubrough.105 In Hodges the court
had held, inter alia, that the field of interpretation of contracts is very different from the field
of interpretation of statutes. In the case of interpretation of a statute, the intention to be
ascertained is that of the legislator, who is legislating in general terms and with general effect.
In the case of interpretation of a contract, “it is the intention of private individuals, minding
their own business and dealing solely with that” which is at issue.106 Thus, the parties may in
their settlement agreement agree on continuation of the duty to pay maintenance in circum-
stances in which section 7(2) does not allow continuation. In the present case, the wording of
the settlement agreement was such that Maya JA concluded that the agreement expressly
permitted continuation of the duty to pay maintenance after the maintenance recipient’s
remarriage.
It is submitted that the decision in Odgers is correct. The decisions in which the courts
adopted the view that the maintenance recipient’s remarriage terminates the maintenance
debtor’s duty to pay maintenance unless the agreement expressly provides that the duty con-
tinues, applied principles relating to section 7(2) of the Divorce Act to settlement agree-
ments. At the beginning of this chapter it is indicated that the duty of support which arises
from a settlement agreement is governed by the terms of the agreement, while the duty of
support that results from an order in terms of section 7(2) has a statutory foundation. As the
basis of the duty of support arising from a settlement agreement differs completely from the
basis of the duty to which section 7(2) applies, there is no justification for importing the
limitations contained in section 7(2) with regard to the duration of the duty of support into
the interpretation of settlement agreements. There is also no indication that the legislator
intended such importation.107

13.4.3 An order in terms of section 7(2) of the Divorce Act 70 of 1979

If the order is made in terms of section 7(2) of the Divorce Act, the duty to pay maintenance
comes to an end at the time stipulated in the order or upon the death or remarriage of the
party in whose favour the order operates, whichever event occurs first.
Prior to the decision of the Supreme Court of Appeal in Kruger v Goss,108 it was unclear
whether the duty continued after the death of the maintenance debtor. In Copelowitz v Cope-
lowitz 109 the High Court had stated in an obiter dictum, in respect of the predecessor to section
7(2),110 that the duty to pay post-divorce maintenance to a spouse was not terminated by the
death of the liable party and that the party in whose favour the order operated had a claim
for maintenance against the deceased estate of the liable party. In Hodges v Coubrough,111 by
contrast, it had been held that section 7(2) does not empower the court to grant an order for
the payment of maintenance that survives the death of the liable party and binds his or her
deceased estate.
Kruger v Goss 112 settled the issue by holding that an order that was made in terms of section
7(2) cannot be enforced against the deceased estate of the maintenance debtor. The
________________________

105 1991 (3) SA 58 (D).

106 66F.
107 See further Heaton 2007 THRHR 649–650; Heaton 2007 Annual Survey of South African Law 944–945; see
also De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 164. But see Van
Schalkwyk 2002 De Jure 144 and Sonnekus 2001 TSAR 800, May 2002 De Rebus 26, 2007 TSAR 351 and 2008
De Jure 215 who prefer the view that the maintenance recipient’s remarriage terminates the duty of sup-
port unless the settlement agreement expressly provides for continuation.
108 [2010] 1 All SA 422 (SCA), 2010 (2) SA 507 (SCA), Heaton and Kruger Casebook on Family Law case [57].
109 1969 (4) SA 64 (C). In Kommissaris van Binnelandse Inkomste v Steyn 1992 (1) SA 110 (A) the Appellate
Division accepted that the party in whose favour a maintenance order made under s 7(2) operates has a
claim for maintenance against the deceased estate of the liable party. However, the matter was not argued
before the court.
110 Ie, s 10(1)(a) of the Matrimonial Affairs Act 37 of 1953.
111 1991 (3) SA 58 (D).
112 [2010] 1 All SA 422 (SCA), 2010 (2) SA 507 (SCA).
 Chapter 13: Maintenance of a spouse after divorce 169

Supreme Court of Appeal held that section 7(2) must be viewed against its common-law
background. In terms of the common law, the spousal duty of support terminates on termina-
tion of the marriage. Although the legislator enacted the Maintenance of Surviving Spouses
Act, which provides a surviving spouse with a claim against the estate of his or her deceased
spouse if he or she is unable to provide for his or her reasonable maintenance needs from his
or her own means and earnings,113 the common law has “remained otherwise untouched”.114
The Supreme Court of Appeal supported the conclusion of the court in Hodges v Coubrough
that section 7(2) did not alter the common law by permitting enforcement of a maintenance
order against the deceased estate of the liable party. The Supreme Court of Appeal held that
although a spouse may bind his or her deceased estate for payment of post-divorce main-
tenance in a settlement agreement, section 7(2) does not empower the court to do so. This
decision strikes one as most unjust. It creates a differentiation between maintenance recipi-
ents under section 7(1) and section 7(2) and deprives maintenance recipients of their
maintenance claims only if they acquired these claims by virtue of an order in terms of section
115
7(2). The decision is not only at odds with the right to and the value of equality, but also
fails to protect and promote the right to and the value of dignity because it denies some
maintenance recipients whose former spouses die their court-awarded maintenance without
any regard to their possible vulnerability, even though the courts have repeatedly emphasised
116
the duty to protect the vulnerable.

________________________

113 The Maintenance of Surviving Spouses Act is discussed in ch 10 above.

114 Par 11.
115 If a settlement agreement that has been made an order of court in terms of s 7(1) is silent on whether the
maintenance recipient’s claim survives the death of the maintenance debtor, the courts favour continu-
ation of the claim: see above in this chapter.
116 See eg Gumede v President of the Republic of South Africa 2009 (3) SA 152 (CC); Hassam v Jacobs 2009 (5) SA
572 (CC); Oshry v Feldman 2010 (6) SA 19 (SCA). For further criticism of the decision in Kruger v Goss, see
Heaton 2010 Annual Survey of South African Law 473; Sonnekus 2010 TSAR 635, 637; De Jong and Heaton
2011 SALJ 211; Van Schalkwyk 2011 De Jure. See also De Jong and Heaton in Heaton (ed) Law of Divorce
and Dissolution of Life Partnerships 165.
 14
THE INTERESTS OF THE CHILDREN OF
DIVORCING PARENTS

14.1 Introduction
That the best interests of the child are the most important issue with regard to the legal posi-
tion of the child of a divorcing couple is well known. The discussion in this chapter starts with
an exposition of the child’s best interests. Then the Mediation in Certain Divorce Matters Act
24 of 1987 and section 6 of the Divorce Act 70 of 1979 are discussed. This is followed by an
examination of the aspects regarding the legal position of the child which the court may regu-
late upon divorce. The enforcement of those aspects is discussed next. Finally, rescission, sus-
pension and variation of an order that was made upon divorce are dealt with.

14.2 The best interests of the child

Section 28(2) of the Constitution of the Republic of South Africa, 1996 provides that a child’s
best interests are of paramount importance in every matter concerning the child.1 Section 6
of the Children’s Act 38 of 2005 furthermore sets out general principles which must guide the
implementation of legislation and guide proceedings, actions and decisions by organs of state
relating to a specific child or children in general.2 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 (that is, chapter 2 of the Constitution) and the best interests of the child standard as
set out in section 7 of the Children’s Act.3 In addition, section 9 of the Children’s Act requires
that the paramountcy of the child’s best interests must apply in all matters concerning a
child’s care, protection and well-being. The Convention on the Elimination of All Forms of
Discrimination Against Women also provides that the child’s best interests are paramount.4
The Convention on the Rights of the Child requires that the child’s best interests must be “a
5
primary consideration” in all actions concerning the child, while the African Charter on the
Rights and Welfare of the Child requires that the child’s best interests must be “the primary
consideration” in all actions concerning the child.6 Being a state party to these international
instruments, South Africa is obliged to comply with the duties the instruments impose. It is
therefore clear that the child’s best interests must be the yardstick in respect of the legal
position of a child of divorcing parents.7
________________________

1 On s 28(2), see further ch 22 below.

2 S 6(1).
3 S 6(2)(a).
4 Art 16(1)(d). South Africa acceded to the Convention on 15 Dec 1995.
5 Art 3(1). South Africa ratified the Convention on 16 June 1995.
6 Art 4. South Africa ratified the Charter on 7 Jan 2000.
7 On the protection of the child’s best interests by the Constitution of the Republic of South Africa, 1996,
Convention on the Rights of the Child, African Charter on the Rights and Welfare of the Child and Chil-
dren’s Act 38 of 2005, see further ch 22 below.

171
172 South African Family Law

What is in a child’s best interests is obviously an issue which is determined by the facts and
context of each case.8 In terms of section 7(1) of the Children’s Act, the following factors
must be taken into consideration when they are relevant:9
(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 care-giver 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 care-giver or person, to
provide for the child’s needs, including his or her emotional and intellectual needs.10
(4) The likely effect any change in the child’s circumstances would have on the child,
including the likely effect of the child’s separation from either parent or both parents,
a sibling, another child, or any other care-giver or person with whom the child has been
living.
(5) The practical difficulty and expense of the child having contact with his or her parents,
or a specific parent, and whether that difficulty or expense would substantially affect
the child’s right to maintain personal relations and direct contact with that parent on a
regular basis.
(6) The child’s need to remain in the care of his or her parent, family and extended family,
and to maintain a connection with his or her family, extended family, tribe, culture or
tradition.
________________________

8 The concept of “the best interests of the child” is frequently criticised as being too indeterminate to be a
useful tool, engendering conflict and litigation, and entrenching the rights of parents rather than children.
On the problems encountered when applying the concept, and the arguments for and against its appli-
cation, see eg B v M [2006] 3 All SA 109 (W), 2006 (9) BCLR 1034 (W); 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)); Barratt (ed) Persons and the Family 181; Boezaart in Heaton (ed)
Law of Divorce and Dissolution of Life Partnerships 175–176; Davel in Davel and Skelton (eds) Commentary on the
Children’s Act 2–7; Schäfer Child Law in South Africa 154–155; Van Heerden in Van Heerden et al (eds) Bob-
erg’s Law of Persons and the Family 502–504; Van Zyl Divorce Mediation and the Best Interests of the Child 5–12;
Schäfer 1987 SALJ 153–154; Heaton 1990 THRHR 95; Fick 1991 Koers 40–44; Clark 1992 SALJ 394–395;
Bonthuys 1997 SAJHR 623–624, 636–637; Ramolotja 1999 (1) Codicillus 10; Bonthuys 2000 SAJHR 499–501;
Clark 2000 Stell LR 15, 18–19; Labuschagne 2000 CILSA 338; Pieterse 2000 Stell LR 340–341; Davel and De
Kock 2001 De Jure 274 fn 11; Norrie 2002 SALJ 624–625; Davel and Boniface 2003 THRHR 143–144; Ferreira
2010 THRHR 201. On the Western/European, African and Islamic perspectives on the best interests of the
child, see Goolam in Eekelaar and Nhlapo (eds) The Changing Family 369; Ngidi in Boezaart (ed) Child Law
in South Africa ch 9; Bennett 1999 Obiter 145; Knoetze 1999 Obiter 207; Maithufi 1999 Obiter 198; Vahed 1999
CILSA 364; Pieterse op cit 341–342; Bekker and Van Zyl 2002 Obiter 116; Knoetze 2002 Obiter 348; Goolam
2005 PELJ 1; Bekker 2008 Obiter 395; Olowu 2008 Law, Democracy and Development 62; Moyo 2012 African
Human Rights Law Journal 142. On the role of culture and religion in determining the child’s best interests,
see further Heaton 2009 (2) Journal for Juridical Science 10–15.
9 Although a list such as the one in s 7(1) is undoubtedly of great assistance to all bodies and persons who have
to apply the concept of “the best interests of the child”, no list of factors can ever remove the risk of the
concept being manipulated to reflect the subjective views or values of the body or person who has to apply
the concept: see eg Boezaart in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 175; Van
Heerden in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 503, 543, 544; Davel and De Kock
2001 De Jure 288; Malherbe 2008 TSAR 284. A related difficulty is that historical, political, social, economic
and other factors can be incorporated into the determination of the child’s best interests: see eg B v M
[2006] 3 All SA 109 (W), 2006 (9) BCLR 1034 (W); Boezaart in Heaton (ed) op cit 176; Van Heerden op cit
503; Davel in Davel and Skelton (eds) Commentary on the Children’s Act 2-7; Mosikatsana 1998 Michigan Jour-
nal of Race and Law 391; Bonthuys 2001 SALJ 342. These criticisms can be properly addressed only if each
body or person who has to determine the child’s best interests evaluates each individual case or situation in
the light of the individual child’s position and the effect that the individual child’s circumstances are hav-
ing or will probably have on the child: Heaton 2009 (2) Journal for Juridical Science 9.
10 A parent’s guilt in respect of the breakdown of the marriage is relevant only in so far as it may be indicative
of his or her suitability and ability to exercise parental responsibilities and rights in the best interests of the
child: Fletcher v Fletcher 1984 (1) SA 130 (A); Ex parte Critchfield [1999] 1 All SA 319 (W), 1999 (3) SA 132
(W); B v M [2006] 3 All SA 109 (W), 2006 (9) BCLR 1034 (W).
 Chapter 14: The interests of the children of divorcing parents 173

(7) The age, maturity, stage of development, gender, background and any other relevant
characteristic of the child.
(8) The child’s physical and emotional security and his or her intellectual, emotional,
social and cultural development.
(9) Any disability the child may have.
(10) Any chronic illness from which the child may suffer.
(11) The child’s need to be brought up in 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 deg-
radation, exposing him or her to violence, exploitation or other harmful behaviour, or
exposing him or her to maltreatment, abuse, degradation, ill-treatment, violence, or
harmful behaviour towards another person.
(13) Any family violence involving the child or a family member of the child.
(14) Which action or decision would avoid or minimise further legal or administrative pro-
ceedings regarding the child.
A major objection to this list is that it is closed; in other words, the factors are supposedly
exhaustive of what could be relevant in determining the best interests of the child. However,
it is unthinkable that a court would refuse to take any other factor into account if it were
relevant in a particular case. Such a refusal would, in any event, be likely to contravene sec-
tion 28(2) of the Constitution, as it would not render the child’s best interests of paramount
importance, and the presiding officer would be extremely hard-pressed to find a constitution-
ally justifiable reason for excluding the factor.11
The court must attach such weight to each of the relevant factors as it considers fit and,
ultimately, reach a conclusion based on a value judgement regarding what is in the child’s best
interests in the particular case.12 A child-centred approach must be used. This approach re-
quires “a close and individualised examination of the precise real-life situation of the particu-
lar child involved”.13 However, the court must also consider the rights of the child’s parent(s),
for rendering the child’s best interests paramount does not mean that all other constitutional
rights may simply be ignored, or that limitations of the child’s best interests are impermis-
sible.14 The child’s best interests must be applied “in a meaningful way without unduly oblite-
rating other valuable and constitutionally protected interests”.15 Thus, for example, if a
seriously disabled parent sought post-divorce care of his or her child, the court would have to

________________________

11 See also Heaton 2009 (2) Journal for Juridical Science 8. Bonthuys 2001 THRHR 192 points out that division
of assets and post-divorce spousal maintenance shape the economic circumstances of children and their
care-giving parent after the divorce. She therefore pleads for the integration of the child’s best interests
with property division and maintenance. See also Bonthuys 2008 THRHR 200–203. On the use of the term
“care-giving parent”, see below in this chapter.
12 See eg K v M [2007] 4 All SA 883 (E); P v P [2007] 3 All SA 9 (SCA), 2007 (5) SA 94 (SCA).
13 M v S (Centre for Child Law, Amicus Curiae) 2007 (12) BCLR 1312 (CC) (also reported as S v M (Centre for
Child Law as Amicus Curiae) 2008 (3) SA 232 (CC), 2007 (2) SACR 539 (CC)) par 24. See also J v National
Director of Public Prosecutions (Childline South Africa and others as Amici Curiae) 2014 (7) BCLR 764 (CC) par
38. For a discussion of the implications of an individualised, contextualised, child-centred approach, see
Heaton 2009 (2) Journal for Juridical Science 1.
14 Minister of Welfare and Population Development v Fitzpatrick 2000 (7) BCLR 713 (CC), 2000 (3) SA 422 (CC);
LS v AT 2001 (2) BCLR 152 (CC) (also reported as Sonderup v Tondelli 2001 (1) SA 1171 (CC)); M v S (Cen-
tre 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)). See also De Reuck v Director of Public Prose-
cutions (Witwatersrand Local Division) 2003 (12) BCLR 1333 (CC), 2004 (1) SA 406 (CC), 2003 (2) SACR 445
(CC) par 55 (obiter). For a discussion on how to deal with conflict of interests between parents and chil-
dren, see Robinson 2013 THRHR 400.
15 M v S (Centre for Child Law, Amicus Curiae) 2007 (12) BCLR 1312 (CC) (also reported as S v M (Centre for
Child Law as Amicus Curiae) 2008 (3) SA 232 (CC), 2007 (2) SACR 539 (CC)) par 25.
174 South African Family Law

take the parent’s right to be free from unfair discrimination on the ground of disability16 and
the child’s right to have paramountcy afforded to his or her best interests into account. The
competing interests would have to be weighed up and a proportionality assessment made to
determine whether the court should award care to the disabled parent.17
18
14.3 The Mediation in Certain Divorce Matters Act 24 of 1987
After the institution of a divorce action19 or an application for the variation, rescission or sus-
pension of an order regarding guardianship, care or contact that was made in terms of the
Divorce Act,20 a Family Advocate may be requested to institute an enquiry in terms of the Medi-
ation in Certain Divorce Matters Act.21 The request may be made by the court or a party to the
proceedings.22 If the Family Advocate deems it in the child’s interests, he or she may also of
his or her own accord ask the court to authorise an enquiry.23 In Van Vuuren v Van Vuuren 24
the court indicated that a Family Advocate ought to apply for an order authorising an enquiry
if one of the following situations was envisaged:
(1) Care of a young child will not be awarded to the child’s mother.
(2) Siblings will be separated.
________________________

16 S 9(3) of the Constitution.

17 See further ch 22 below.
18 Although the title and preamble of this Act suggest that the Act provides for mediation, this is not so: see
ch 15 below.
19 S 4(1)(a) of the Mediation in Certain Divorce Matters Act 24 of 1987. A divorce action includes an applica-
tion in terms of rule 43 of the Uniform Rules of Court: Terblanche v Terblanche 1992 (1) SA 501 (W). In Ter-
blanche the court correctly rejected the decision in Davids v Davids 1991 (4) SA 191 (W) in which it had been
held that the Act does not apply to applications in terms of rule 43. Rule 43 is discussed in ch 15 below.
20 S 4(1)(b) of the Mediation in Certain Divorce Matters Act. But see K v K 2008 (5) SA 431 (W) in which the
court, immediately after granting a divorce order, ordered the Family Advocate to institute an enquiry in
terms of s 4(1)(b). As no application for the variation, rescission or suspension of an order with regard to
guardianship, care or contact had been launched, because the divorce order had only just been granted,
the court’s order requesting the Family Advocate to institute an enquiry in terms of s 4(1)(b) was without a
statutory foundation.
21 S 4(1) of the Mediation in Certain Divorce Matters Act. The Family Advocate may also launch an enquiry
regarding a child born from a customary marriage or from unmarried parents, a child in maintenance pro-
ceedings under the Maintenance Act 99 of 1998 and a child in domestic violence proceedings under the
Domestic Violence Act 116 of 1998: s 8(3) of the Recognition of Customary Marriages Act 120 of 1998; s 21
of the Children’s Act; s 10(1A) of the Maintenance Act; s 5(1A) of the Domestic Violence Act. Since the
coming into operation of the Jurisdiction of Regional Courts Amendment Act 31 of 2008 on 9 August 2010,
Family Advocates have also had the power to launch enquiries in divorce and nullity proceedings and relat-
ed matters in the Regional Divisions of the Magistrate’s Court: see the insertion of s 29(1B)(d) into the
Magistrates Courts Act 32 of 1944 by s 7 of the Jurisdiction of Regional Courts Amendment Act. The Chil-
dren’s Act extends the Family Advocate’s powers to an even bigger range of matters: ss 22(4)–(6), 23(3),
28(3)(e), 29(5)(a), 33(5), 34(1)(b), 34(3)(b)(ii)(aa), 34(4), 49(1)(a) and 62 of the Children’s Act. As the
Family Advocate is a creature of statute and the Mediation in Certain Divorce Matters Act does not empow-
er the Family Advocate to investigate and report on the child’s welfare after the court has made its order,
the court may not instruct the Family Advocate to “investigate the progress” of, eg, the joint care it orders:
Ex parte Critchfield [1999] 1 All SA 319 (W), 1999 (3) SA 132 (W). See further Van Schalkwyk 2001 De Jure
204–205.
22 S 4(1).
23 S 4(2). In terms of reg 2 of the regulations issued under the Act, the plaintiff in a divorce action in which
any relief regarding guardianship, care or contact is claimed, or an applicant in a subsequent application
for variation, rescission or suspension of an order regarding guardianship, care or contact must complete a
sworn or affirmed form corresponding substantially to Annexure A of the regulations. By perusing the com-
pleted form, the Family Advocate can evaluate the need for an enquiry.
24 1993 (1) SA 163 (T), Heaton and Kruger Casebook on Family Law case [58]. In this case, the judge further
warned legal representatives to guard against concessions in respect of children being made by the finan-
cially weaker party in order to get a better financial settlement. He failed to mention that the opposite of-
ten occurs, ie the financially stronger party claims or threatens to claim care in order to induce the other
party to accept a financially inferior settlement. On the latter point, see further fn 72 below and Heaton
2005 SAJHR 567.
 Chapter 14: The interests of the children of divorcing parents 175

(3) Care will be awarded to a person other than the child’s parent.
(4) An arrangement regarding care or contact will be made which is prima facie (that is, on
the face of it) not in the child’s interests.
The purpose of the enquiry is to enable the Family Advocate to furnish the court with a
report and recommendations on any matter concerning the welfare of the minor or depend-
ent children born of the marriage.25 A family counsellor assists the Family Advocate in the
enquiry.26 The Family Advocate must help the court by putting information before it, must
refrain from bias and make balanced recommendations.27 The court is not obliged to accept
the Family Advocate’s report and/or recommendations. It may reject them completely or in
part, or accept the Family Advocate’s factual findings but make an order that differs from the
Family Advocate’s recommendations.28
A Family Advocate may also, if he or she deems it in the child’s interests, appear at the trial
of a divorce action or the hearing of an application. If a court requests the Family Advocate to
appear, the Family Advocate must do so. The Family Advocate may adduce any available
relevant evidence and cross-examine witnesses.29

14.4 The Divorce Act 70 of 1979

Section 6 of the Divorce Act specifically regulates the position of minor or dependent chil-
dren born of the divorcing couple. The section does not apply to stepchildren. Thus, for
example, section 6 does not empower the court to award care of a wife’s child from a previous
marriage to the husband she is currently divorcing or to allow him contact with her child. The
High Court may, however, in its capacity as upper guardian of all minors make any order it
deems in the best interests of the child.30 In this capacity it may, for example, grant contact to
the husband in the above example.
In terms of section 6(1)(a), the court may not grant a decree of divorce until it is satisfied
that the arrangements made or contemplated with regard to the welfare of any minor or
dependent child of the marriage are satisfactory or the best that can be achieved in the

________________________

25 S 4(1).
26 S 3. A family counsellor is usually a social worker, while a Family Advocate is a lawyer who is qualified to be
admitted as an advocate and is fit for appointment as a Family Advocate because of his or her experience in
the adjudication or settlement of family matters: s 2(2).
27 See eg Whitehead v Whitehead 1993 (3) SA 72 (SEC); Van den Berg v Le Roux [2003] 3 All SA 599 (NC).
28 Van den Berg v Le Roux [2003] 3 All SA 599 (NC).
29 S 4(3). The same Family Advocate who conducted the enquiry may appear as counsel at the trial: Van den
Berg v Le Roux [2003] 3 All SA 599 (NC). On the role and functions of the Family Advocate, and the com-
position, successes and failures of the office of the Family Advocate, see Van den Berg v Le Roux; Terblanche v
Terblanche 1992 (1) SA 501 (W); Whitehead v Whitehead 1993 (3) SA 72 (SEC); Soller v G 2003 (5) SA 430 (W);
Brown v Abrahams [2004] 1 All SA 401 (C), 2004 (4) BCLR 349 (C); Pennello v Pennello [2004] 1 All SA 32
(SCA), 2004 (3) BCLR 243 (SCA) (also reported as Pennello v Pennello (Chief Family Advocate as Amicus Curi-
ae) 2004 (3) SA 117 (SCA)); Barratt (ed) Persons and the Family 369–370; Boezaart in Heaton (ed) Law of
Divorce and Dissolution of Life Partnerships 183–186; Bosman and Van Zyl in Robinson (ed) Law of Children and
Young Persons 64–65; Bosman-Swanepoel et al 34–39; Church and Church in Church (ed) LAWSA Marriage
par 147; De Jong Egskeidingsbemiddeling in Suid-Afrika 54–93; De Jong in Boezaart (ed) Child Law in South
Africa 118–119; Glasser in Burman (ed) The Fate of the Child ch 5; Kaganas and Budlender 3–6, 10–18; Kassan
in Sloth-Nielsen and Du Toit (eds) Trials and Tribulations, Trends and Triumphs 235; Kruger in Clark (ed)
Family Law Service par F57A; Schäfer in Bainham et al (eds) Frontiers of Family Law 30 et seq; Skelton in Sloth-
Nielsen and Du Toit (eds) Trials and Tribulations, Trends and Triumphs 220–221; Skelton and Carnelley
(eds) Family Law 141–142; Van Heerden in Van Heerden et al (eds) Boberg’s Law of Persons and the Family
517–524; Van Zyl Divorce Mediation and the Best Interests of the Child 112–121, 123–126; Van Zyl 2000 Obiter
372; Berman et al 2000 SAJHR 535; Clark 2000 Stell LR 6–9; Van Schalkwyk 2001 De Jure 203; Whittle Oct
2001 De Rebus 22; Barratt 2002 THRHR 571–573; Glasser 2002 De Jure 223, 2002 THRHR 74; De Ru 2008
THRHR 702–705; Marumoagae May 2012 De Rebus 40.
30 See ch 23 below on the court’s powers as upper guardian.
176 South African Family Law

circumstances.31 Furthermore, section 6(1)(b) requires that if the Family Advocate has insti-
tuted an enquiry, the court must consider the Family Advocate’s report and recommenda-
tions before granting the divorce.
As section 10 of the Children’s Act affords every child who is of such an age, maturity and
stage of development as to be able to participate in any matter concerning him or her the
right to participate in an appropriate way and to have due consideration given to his or her
32
views, the court must also establish whether this section has been complied with. It is very
33
rare for the child to appear in court in person to present his or her views. In divorce pro-
ceedings, the court usually relies on the Family Advocate to enquire as to the child’s views and
to include those views in his or her report. However, several authors have expressed concerns
about the Family Advocate’s frequent failure to establish the child’s views and the inaccuracy
with which the child’s views are sometimes conveyed.34 Furthermore, it must be borne in
mind that the Family Advocate does not act as the child’s legal representative. The Family
Advocate acts as an advisor to the court and “a professional and neutral channel of communi-
cation between the conflicting parents (and perhaps the child) and the judicial officer”.35
Section 6(2) of the Divorce Act empowers the court to cause any investigation it deems
necessary to be carried out and to order any person to appear before it. Thus the court may,
for example, make an order that the child must be interviewed by an expert, such as a psych-
ologist, and that the expert’s report must be submitted to the court and/or that the expert
must appear in court to give evidence. The expert’s report and evidence can include the
child’s views. Either parent, or both parents, may be ordered to pay the costs of the expert
investigation and appearance.36 Parents may, of course, also appoint their own expert(s), and
frequently do so.37
Another way in which the child’s views can be conveyed is by having a legal representative
appointed for the child in terms of section 6(4) of the Divorce Act and having the parents, or
either of them, pay the costs of such legal representation if necessary. However, the court
38
apparently rarely exercises the power section 6(4) confers on it. Section 28(1)(h) of the
________________________

31 In K v K 2008 (5) SA 431 (W) the court made a divorce order even though contact still needed to be
investigated and resolved. Immediately after granting the divorce order, the court made another order in
which it requested the Family Advocate to enquire into and report on the father’s contact with the child:
see fn 20 above. Solely on the basis of the arrangements that had been made in respect of care, the court
concluded that the provisions made with regard to the welfare of the child were satisfactory. The court was
apparently motivated to make the two orders it did because it wanted to save the parties legal expenses
since they had “limited resources”: par 1. Laudable as this objective may be, the court’s approach unfortu-
nately fails to put the child’s best interests in the paramount position that s 28(2) of the Constitution and
s 6 of the Children’s Act demand, because it isolates contact from the other issues relating to the child’s
welfare. See further De Jong and Kruger 2010 THRHR 153.
32 Barrie 2013 TSAR 124 suggests a progressive interpretation of s 10, with reference to the approach of
Australian courts.
33 Kassan in Sloth-Nielsen and Du Toit (eds) Trials and Tribulations, Trends and Triumphs 232; Palmer in
Keightley (ed) Children’s Rights 112; Kassan 2003 De Jure 169–170; Pillay and Zaal 2005 SALJ 687; Sloth-
Nielsen 2008 SAJHR 503; Mahlobogwane 2010 Obiter 241–242.
34 See eg Africa et al in Burman (ed) The Fate of the Child ch 6; Pillay and Zaal 2005 SALJ 687–689. Pillay and
Zaal op cit suggest that making a confidential video-recording of the family counsellor’s interview with the
child for the presiding officer to view might be a better avenue to convey the child’s views.
35 Soller v G 2003 (5) SA 430 (W) par 27.
36 S 6(2).
37 On the escalating use of experts, the problems occasioned by the interaction between legal and child wel-
fare experts and the question of the usefulness of expert evidence in care disputes, see Bonthuys 2001 SALJ
329. On the proper role and approach of experts, see further Stock v Stock 1981 (3) SA 1280 (A); Jackson v
Jackson 2002 (2) SA 303 (SCA); P v P [2007] 3 All SA 9 (SCA), 2007 (5) SA 94 (SCA); Boezaart in Heaton
(ed) Law of Divorce and Dissolution of Life Partnerships 187–188; Lambiase and Kumes 1987 SALJ 704; De Ru
2008 THRHR 704; Lerm May 2015 De Rebus 36.
38 See eg SJ v CJ 2013 (4) SA 350 (GSJ), where the amount each of the parties should contribute to the
maintenance of their adult dependent daughter, who was physically and mentally handicapped, was in dis-
pute. The court found it unnecessary to appoint anyone to care for the interests of the child, as there was,
continued
 Chapter 14: The interests of the children of divorcing parents 177

Constitution further entitles the child to legal representation in civil proceedings if absence
of such representation would result in substantial injustice. The legal representation is pro-
vided by the state, at state expense. Thus, even if a child’s parents cannot pay for legal repre-
sentation for the child in divorce proceedings, a legal representative must be appointed for
the child if substantial injustice would otherwise result.39
Section 6(3) of the Divorce Act provides that once the court has considered the family ad-
vocate’s report and recommendations and is satisfied that the arrangements made or con-
templated with regard to the welfare of the child are satisfactory or the best that can be
achieved in the circumstances, it may make any order it deems fit with regard to the child’s
guardianship, custody, access and maintenance.40 As the Children’s Act requires that, having
regard to his or her age, maturity and stage of development, the child must be informed of any
action or decision taken in a matter which significantly affects him or her,41 the child must be
informed of the order the court has made. The Act does not specify who must inform the
child; presumably it would usually be the child’s parent or the legal representative of one of
the parents or of the child.

14.5 Aspects the court may regulate

14.5.1 General
Section 6(3) of the Divorce Act provides that the court which makes a divorce order may
make any order it deems fit in respect of the “maintenance of a dependent child of the
marriage” or the “custody or guardianship of, or access to, a minor child of the marriage”. In
respect of the part of the section which refers to custody, guardianship and access, it should
be noted, firstly, that “custody” refers to all parts of the concept of “care” as defined in the
Children’s Act except maintenance and contact, while “access” is the common-law equivalent
of the concept of “contact” as defined in the Children’s Act.42 The Children’s Act did not
repeal the terms or the concepts of “custody” and “access”.43 The Act provides that “[i]n
addition to the meaning assigned to the terms ‘custody’ and ‘access’ in any law, and the
common law, the terms ‘custody’ and ‘access’ must be construed to also mean ‘care’ and
‘contact’ as defined in [the Children’s] Act”.44
Various terms and phrases are now used in practice for what are called “custody” and
“access” at common law. They include “care”, “custody”, and “care and custody” for “custody”.
“Residency”, “permanent residency”, “primary residence”, or appointing the parent as “the
primary caregiver” are sometimes used for those elements of “care” which refer to the child’s
________________________

in the court’s view, no conflict between the interests pursued by the plaintiff and those of her dependent
daughter.
39 On legal representation for a child in divorce proceedings, see further Boezaart in Heaton (ed) Law of
Divorce and Dissolution of Life Partnerships 189, 191–201; Kassan in Sloth-Nielsen and Du Toit (eds) Trials and
Tribulations, Trends and Triumphs 227; Barratt 2002 THRHR 569–570; Kassan 2003 De Jure 169–171, 174;
Sloth-Nielsen 2008 SAJHR 502–503; Bekink and Bekink 2009 (2) Speculum Juris 95, 103; Carnelley 2010
Obiter 638. On s 28(1)(h) of the Constitution, see further ch 22 below.
40 On this provision, see further below in this chapter.
41 S 6(5).
42 In terms of the common law, parental authority/parental power consists of guardianship, custody and access.
S 1(1) of the Children’s Act uses the term “parental responsibilities and rights” instead of “parental power”
or “parental authority”. In terms of s 1(1) of the Act, “parental responsibilities and rights” refer to the re-
sponsibilities and rights cited in s 18. S 18(2) defines these responsibilities and rights non-exhaustively to
include caring for the child, maintaining contact with the child, acting as the child’s guardian, and con-
tributing to the child’s maintenance. The first three elements roughly match the components of common-
law parental authority. At common law, the fourth component of what is now called “parental responsibil-
ities and rights”, namely contributing to the child’s maintenance, exists quite independently of parental
authority. The definition of “care” in s 1(1) of the Children’s Act, however, includes the duty of support:
see par (a)(iii) of the definition. On parental responsibilities and rights, see further ch 23 below.
43 Wheeler v Wheeler [2011] 2 All SA 459 (KZP) (also reported as WW v EW 2011 (6) SA 53 (KZP)).
44 S 1(2). The meaning of the terms “care” and “contact” are explained in more detail below in this chapter.
178 South African Family Law
45
living with a parent. “Contact”, “access” and “contact and access” are used for “access”.46 In
Wheeler v Wheeler,47 the Pietermaritzburg court came to the conclusion that it would be pref-
erable if the terminology in the Children’s Act were consistently used in divorce proceedings.
The court stated that when one parent is to have what is called “custody” at common law
while the other parent is to have what is called “access” at common law,48 the court should
make an order that both parents will have full parental responsibilities and rights but that the
child “shall reside with” a particular parent and that the specified parent will have “the
responsibility and right to care for” the child while the other parent will have “the responsibil-
ity and right to maintain contact with” the child. The court held that the terms “primary
caregiver” and “primary residence” should be used only to qualify joint care.49 However, it is
submitted that the term “care-giver” ought to be avoided in the context of parents and guard-
ians because the Children’s Act ascribes a particular meaning to “care-giver” which excludes a
parent and guardian.50 For this reason, the terms “care-giving parent” and “non-care-giving
parent” are used in this book in preference to “care-giver” or “care-giver parent” and “non-
care-giver” or “non-care-giver parent”.
In respect of section 6(3) of the Divorce Act, it should be noted that the court’s power to
make an order relating to guardianship, custody/care and access/contact is limited to minor
children. The reason for this limitation is that parents cease to have guardianship, care and
contact when their child becomes a major.51 The part of the section which refers to mainten-
ance is not subject to the same limitation, because a parent’s duty of support continues until
his or her child becomes self-supporting, regardless of whether this happens before or after
the child attains majority.52 Thus, the court which grants the divorce may make an order re-
garding the maintenance of a minor child born of the marriage as well as an adult child born
of the marriage if the child is still dependent on his or her parents for maintenance.
As section 6(3) of the Divorce Act expressly distinguishes between guardianship, custody,
access and maintenance, each of these elements of parental responsibilities and rights is dis-
cussed separately below. However, instead of using the terms “custody” and “access”, the
terms “care” and “contact” are used because they are in keeping with the terminology used in
the Children’s Act.

14.5.2 Guardianship
(a) The meaning of “guardianship”
At common law, “guardianship” has a wide and a narrow meaning. In the narrow sense, it
refers to the capacity to administer a minor’s estate on his or her behalf, and to assist the
________________________

45 Schäfer in Clark (ed) Family Law Service par E49 submits that divorce pleadings should refer simply to
“care”.
46 See eg Wheeler v Wheeler [2011] 2 All SA 459 (KZP) (also reported as WW v EW 2011 (6) SA 53 (KZP)).
47 [2011] 2 All SA 459 (KZP) (also reported as WW v EW 2011 (6) SA 53 (KZP)). See also Zaal and Couzens
2012 TSAR 188.
48 On “access”, see below in this chapter.
49 On the meaning of “joint care”, see below in this chapter.
50 See also Schäfer Child Law in South Africa 220. S 1(1) of the Act defines “care-giver” as “any person other
than a parent or guardian, who factually cares for a child and includes –
(a) a foster parent;
(b) a person who cares for a child with the implied or express consent of a parent or guardian of the child;
(c) a person who cares for a child whilst the child is in temporary safe care;
(d) the person at the head of a child and youth care centre where a child has been placed;
(e) the person at the head of a shelter;
(f) a child and youth care worker who cares for a child who is without appropriate family care in the com-
munity; and
(g) the child at the head of a child-headed household”.
51 In terms of s 17 of the Children’s Act, a minor attains majority at the age of 18 years. On termination of
minority, see further Heaton Persons 112–116.
52 See ch 23 below.
 Chapter 14: The interests of the children of divorcing parents 179

minor in legal proceedings and the performance of juristic acts. In the wide sense, it also
includes care. The Children’s Act limits the meaning of “guardianship” to the narrow sense of
the term.53 In terms of section 18(3) of the Act, “guardianship” refers to administering and
safeguarding a child’s property and property interests, assisting or representing the child in
administrative, contractual and other legal matters, and giving or refusing any consent that is
legally required in respect of the child (such as consent to the child’s marriage or adop-
tion).54
(b) The order the court may make in respect of guardianship
As indicated above, the court which orders a divorce may make any order it deems fit regard-
ing guardianship. In terms of the Children’s Act,55 both parents of a child born of married
parents are the child’s guardians. As a general rule, either parent may exercise any aspect of
guardianship independently. This general rule is subject to the exception that the consent of
both parents is needed for the minor’s marriage, adoption, or departure or removal from
South Africa, for the minor’s application for a passport, and for the alienation or encum-
brance of the minor’s immovable property. The consent of both parents is also necessary
when any legal rule or court order requires it.56
Usually the parents continue to exercise equal, concurrent guardianship (also sometimes
called joint guardianship) after divorce. If the court deviates from the usual position and
awards guardianship to one of the parents, that parent exercises guardianship alone, but the
other parent’s consent to the child’s marriage and adoption is still required.57 The parent to
whom guardianship is awarded may also not appoint a successor to the exclusion of the other
parent.58 This type of guardianship is sometimes called guardianship simpliciter or single
guardianship. If the court awards “guardianship” to one of the parents, this does not mean
that that parent obtains sole guardianship, for an order awarding sole guardianship must be
made in express terms.59
If the court awards sole guardianship to one of the parents, that parent becomes the child’s
only guardian to the exclusion of the other parent. Sole guardianship means that, apart from
the child’s adoption,60 the sole guardian is the only parent whose consent needs to be
obtained for those acts in respect of which both parents’ consent is normally required. Sole
guardianship is not readily awarded. It may, for example, be awarded when the other parent’s
whereabouts are unknown or when he or she has shown no interest in the child or in
________________________

53 Wheeler v Wheeler [2011] 2 All SA 459 (KZP) (also reported as WW v EW 2011 (6) SA 53 (KZP)).
54 Ss 1(1) and 18(3) of the Children’s Act.
55 Ss 19(1) and 20.
56 S 18(3)(c), (4) and (5) of the Children’s Act.
57 S 233(1)(a) of the Children’s Act expressly requires both parents’ consent to the adoption of their child
regardless of whether the child was born of married or unmarried parents. As regards consent to marry,
s 6(3) of the Divorce Act and s 5(1) of the Matrimonial Affairs Act 37 of 1953 draw a distinction between
guardianship and sole guardianship and refer to “the power to consent to the marriage of the child” only
in the context of sole guardianship. This distinction suggests that a parent of a child born of married par-
ents only has the sole power to consent to the minor’s marriage if he or she has been awarded sole guardi-
anship. On adoption, see further ch 23 below and on consent to a minor’s marriage, see ch 3 above.
58 This is implicit in the wording of s 6(3) of the Divorce Act and s 27(1)(a) of the Children’s Act.
59 The only differences between guardianship simpliciter and sole guardianship seem to be that guardianship
simpliciter does not empower the guardian to appoint a successor to the exclusion of the other parent, and
that both parents’ consent to their minor child’s marriage and adoption is required in the case of guardi-
anship simpliciter. Louw 2003 De Jure 122 fn 48 submits that, apart from the difference regarding appoint-
ment of a successor, sole guardianship has the same effect as guardianship simpliciter.
60 S 233(1)(a) of the Children’s Act expressly requires both parents’ consent to their child’s adoption, but
s 236(1)(e) provides that a parent’s consent is not required if a court has divested the parent of the right to
consent to the adoption of his or her child. It is arguable that an order awarding sole guardianship to one
of the parents amounts to an order divesting the other parent of the right to consent to the adoption of his
or her child.
180 South African Family Law

performing his or her duties as guardian. In terms of section 6(3) of the Divorce Act, a court
which awards sole guardianship to one of the parents upon divorce may order that, on the
predecease of that parent, someone other than the surviving parent will become the child’s
legal guardian, either jointly with, or to the exclusion of the surviving parent. The Children’s
Act further empowers the sole guardian to appoint his or her successor as sole guardian in his
or her will.61 However, before making such an appointment the sole guardian must give due
consideration to any views and wishes the child expresses, bearing in mind the child’s age,
maturity and stage of development.62

14.5.3 Care
(a) The meaning of “care”
Section 1(1) of the Children’s Act defines “care” as encompassing the following:
(1) Within available means, providing the child with a suitable place to live, living condi-
tions that are conducive to the child’s health, well-being and development, and the
necessary financial support.
(2) Safeguarding and promoting the child’s well-being.
(3) Protecting the child from maltreatment, abuse, neglect, degradation, discrimination,
exploitation, and any other physical and moral harm or hazards.
(4) Respecting, protecting, promoting and securing the fulfilment of, and guarding against
any infringement of the child’s constitutional rights and the rights set out in the Chil-
dren’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) Accommodating any special needs the child may have.
(10) Generally ensuring that the child’s best interests are the paramount concern in all mat-
ters affecting the child.
Most of the elements of care are also part of the common-law concept of “custody”.63 In terms
of the common law, “custody” refers to a person’s capacity physically to have the child with
him or her and to control and supervise the child’s daily life. Items (1) and (8) above, howev-
er, respectively relate to maintenance and contact, which are, at common law, separate from
custody.
(b) The order the court may make in respect of care
During the subsistence of their marriage, both parents have care of the children born of the
marriage. Upon the parents’ divorce, the court may make any order regarding care it deems
in the child’s best interests.64
In the past, care was normally awarded to one of the parents, with mothers being preferred
because it was simply assumed that they make better care-giving parents (especially of young
________________________

61 S 27(1)(a).
62 S 31(1)(a) and (b)(iii) of the Children’s Act.
63 Wheeler v Wheeler [2011] 2 All SA 459 (KZP) (also reported as WW v EW 2011 (6) SA 53 (KZP)).
64 For overviews of some of the cases in which the concept “the best interests of the child” was applied in the
context of care disputes, see Hoffman and Pincus 18–53 and Palmer in Keightley (ed) Children’s Rights 98.
For a comparative survey of the procedural mechanisms for determining the child’s best interests in care
disputes, see Barratt and Burman 2001 SALJ 556.
 Chapter 14: The interests of the children of divorcing parents 181

or handicapped children and daughters of whatever age).65 In Van der Linde v Van der Linde 66
the court declared that mothers are not necessarily better able to be good parents on a day-to-
day basis. Hattingh J held that “mothering” refers to caring for a child’s physical and emo-
tional well-being and that mothering is not only a component of a mother but also forms part
of a father’s being. The court emphasised that the quality of a parent’s role is not simply
determined by gender. Consequently, a father can be just as good a “mother” as the child’s
biological mother, and, conversely, a mother can be just as good a “father” as the child’s bio-
logical father. The maternal preference has subsequently been rejected in several cases. The
generally accepted view now seems to be that maternity may not, on its own, be used to deter-
mine which parent should be awarded care/residency. However, acknowledging the “facts of
the dynamics of pregnancy”67 and “the fact that there is often no one who can quite take the
place of a child’s mother or whose presence and natural affection can give a child the sense
of security and comfort that a child derives from its own mother”68 does not amount to unfair
discrimination on the ground of gender. The best interests of the child remain the para-
mount consideration. In considering those interests, the court may have regard to maternity,
but may not afford undue weight to it or turn it into the only consideration.69
The rejection of the assumption that mothers make better care-giving parents is undoubt-
edly in accordance with the equality clause of the Constitution.70 It is also in keeping with sec-
tion 28(1)(b) of the Constitution, which affords all children the right to parental care, and
not only maternal care. Furthermore, the Convention on the Elimination of All Forms of Dis-
crimination Against Women and the Convention on the Rights of the Child require recogni-
tion of the common responsibilities of parents for the upbringing and development of their
children, and the African Charter on the Rights and Welfare of the Child requires state par-
ties to ensure that spouses have equal responsibilities and rights with regard to their children
during the subsistence of their marriage as well as upon its dissolution.71 It should be remem-
bered though, that gender equality claims should never, on their own, determine the out-
come of a care dispute, for the child’s interests must be the paramount concern.72
Partly because of considerations of gender equality, joint care is increasingly being awarded.
The term “joint care” is used for joint legal care and joint physical care/joint residency. In the
case of joint legal care, the joint care is limited to joint decision-making about important
________________________

65 The preference afforded to mothers of young children is called the tender-years rule or tender-years doc-
trine.
66 1996 (3) SA 509 (O), Heaton and Kruger Casebook on Family Law case [59].
67 Ex parte Critchfield [1999] 1 All SA 319 (W), 1999 (3) SA 132 (W) 143B.
68 K v M [2007] 4 All SA 883 (E) 892e–g.
69 Madiehe (born Ratlhogo) v Madiehe [1997] 2 All SA 153 (B); Van Pletzen v Van Pletzen 1998 (4) SA 95 (O); Ex
parte Critchfield [1999] 1 All SA 319 (W), 1999 (3) SA 132 (W); K v M [2007] 4 All SA 883 (E).
70 S 9. See also the prohibition on unfair discrimination on the grounds of sex and gender in s 6(a) read with
the “prohibited grounds” in s 1(1) of the Promotion of Equality and Prevention of Unfair Discrimination
Act 4 of 2000. See further P v P [2007] 3 All SA 9 (SCA), 2007 (5) SA 94 (SCA).
71 Art 15(3)(d) of the Convention on the Elimination of All Forms of Discrimination Against Women; art 18(1)
of the Convention on the Rights of the Child; art 18(2) of the African Charter on the Rights and Welfare of
the Child.
72 Bonthuys 2001 THRHR 192 points out (209) that, having invested more emotional and physical energy in
child-care, women are still more eager than men to retain care. This fact is often used as a bargaining tool
by husbands who sue, or threaten to sue, for care to convince their wives to accept financially inferior settle-
ments. She warns that the movement away from the maternal preference reduces women’s bargaining
power both during marriage and upon divorce. She further shows that there is an interrelationship be-
tween care, property division and maintenance that favours men. Because the post-divorce financial posi-
tion of the care-giving parent is intimately linked to that of the children in the parent’s care, the present
distribution of property upon divorce and the allocation of financial resources after divorce by way of
maintenance operate to the disadvantage, not only of women but also the children in their care. See also
Bonthuys in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 480; Bonthuys 2000 SAJHR 504–
505. See further Bonthuys in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 479–481; Bon-
thuys 1999 THRHR 547; Du Toit 2001 De Jure 459, 2002 TSAR 46, 526.
182 South African Family Law

issues, such as whether an operation should be performed on the child, where the child
should be educated, and in which language and religion the child should be brought up. The
child usually resides with only one parent, and decisions which are taken on a day-to-day basis,
such as whether the child may watch certain television programmes, whether he or she may
stay over at a friend’s house, and so forth, are left to that parent. In contrast, joint physical
care/joint residency entails that the child spends substantial amounts of time, such as part of
each week, or alternate weeks, with each parent.73
One of the reasons why the courts used to be hesitant to make joint care awards74 was
because it was believed that one parent should control the child’s life, so that the child would
know where he or she stands. The risk of parental conflict and disagreement was also fre-
quently used as an argument against joint care. An objection to joint legal care was that,
because it does not involve sharing of day-to-day care of the child, joint legal care “puts the
care-taking parent in a position of responsibility without power whilst giving the non-care-
taker parent (usually the father) power without responsibility”.75 In the case of joint physical
care/joint residency, logistical difficulties may arise unless the parents live reasonably near
one another. Of course, joint physical care is not feasible when the parents live in different
parts of the country.76 It was also argued that the danger of the instability caused by frequent
moves and inconsistency in living arrangements renders joint care undesirable.
The supporters of joint care argue that it ensures a continuing personal relationship be-
tween the child and both parents and prevents situations in which one parent assumes the
dominant role in the child’s life, with the other parent becoming an “absent” parent. Further-
more, joint care avoids a “winner-takes-all” situation, which is said to exacerbate hostility and
conflict between parents, which, in turn, harms the child. It is further claimed that joint care
reduces or even eliminates child abduction. Joint care also counteracts sex and gender stereo-
types and alleviates the burden of the primary caretaker (usually the mother) who often has
to enter the job-market after divorce.77
In the most recent reported decision on joint care, namely Krugel v Krugel,78 De Vos J re-
jected the arguments against joint care on the ground that they do not serve the child’s best
interests. She stated that a more liberal approach to granting joint care might be appropriate
in view of the changing roles and responsibilities of parents and the concept of children’s
rights. She specifically rejected hostility between the parents as a bar to joint care. She held
that, as long as both parents are fit and proper persons, they should have equal say in their
child’s upbringing. In deciding whether or not to order joint care, the court has to consider

________________________

73 On the distinction between joint legal and joint physical care/joint residency, see further Krugel v Krugel
2003 (6) SA 220 (T); Boezaart in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 206–207; Van
Heerden in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 551–552.
74 In Kastan v Kastan 1985 (3) SA 235 (C); Venton v Venton 1993 (1) SA 763 (D); Corris v Corris 1997 (2) SA 930
(W); V v V 1998 (4) SA 169 (C) and Krugel v Krugel 2003 (6) SA 220 (T), orders for joint care were granted,
while they were denied in Schlebusch v Schlebusch 1988 (4) SA 548 (E) and Pinion v Pinion 1994 (2) SA 725
(D).
75 Clark and Van Heerden 1995 SALJ 323.
76 See eg B v M [2006] 3 All SA 109 (W), 2006 (9) BCLR 1034 (W).
77 On the advantages and disadvantages of, and the courts’ approach to joint care, see further Boezaart in
Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 207; Bosman and Van Zyl in Robinson (ed)
Law of Children and Young Persons 61–62; Clark and Goldblatt in Bonthuys and Albertyn (eds) Gender, Law
and Justice 236–240; Hoffman and Pincus 53–56; Kaganas in Murray (ed) Gender and the New South African
Legal Order 169; Palmer in Keightley (ed) Children’s Rights 108–111; Schäfer in Clark (ed) Family Law Service
par E51; Van Heerden in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 551–558; Van Zyl
Divorce Mediation and the Best Interests of the Child 72–76; Joubert 1986 De Jure 353; Schäfer 1987 SALJ 149;
Schoeman 1989 THRHR 462; Meintjes-Van der Walt 1991 De Rebus 462; Schäfer 1994 THRHR 671; Clark
and Van Heerden 1995 SALJ 315; Van Westing 1995 TSAR 605; Bonthuys 2006 Stell LR 491–493.
78 2003 (6) SA 220 (T), Heaton and Kruger Casebook on Family Law case [61].
 Chapter 14: The interests of the children of divorcing parents 183

whether input from both parents, “even if that input is at times disharmonious”, is not prefer-
able to an uninvolved parent.79 She held that
[u]nless the disagreement is of such a nature that the child is put at risk either physically or
emotionally, it still seems preferable for the child to learn to deal with the ups and downs of two
involved parents, than to lose half of his or her rightful parental input.80
De Vos J concluded that joint care promotes the rights of children and also helps to establish
sex equality by reshaping gender roles within parenthood.
Although, in principle, joint care is supported, it is submitted that the court should, as a
rule, not make an order for joint care if one of the parents has committed or threatened to
commit domestic violence against the other parent. Research has abundantly shown that
violence against a child’s care-giving parent harms the child.81 Furthermore, it must be borne
in mind that the perpetrator of domestic violence may use future instances of contact be-
tween the parents as opportunities to inflict further violence. Fortunately, section 7(1) of the
Children’s Act recognises these facts. It specifically requires that the child’s best interests must
be determined by taking into account the need to protect the child from any physical or
psychological harm that may be caused by exposing him or her to maltreatment, abuse, deg-
radation, ill-treatment, violence, or harmful behaviour towards another person and any family
82
violence involving the child or a family member of the child.
The court may impose limitations on a parent’s right of care/residency,83 such as that he or
she may not remove the child from the court’s area of jurisdiction without the other parent’s
consent.84 Such a limitation entails that, quite apart from the requirement in the Children’s
Act that both parents must consent to their child’s departure or removal from South Africa,85
the care-giving parent may not freely relocate with the child within South Africa; nor may he
or she take the child on holiday to another area of jurisdiction without the other parent’s per-
mission. Such an order is sometimes made when it is feared that the care-giving parent will
run away with the child. Awarding contact to the non-care-giving parent does not mean that
the care-giving parent may not remove the child from the court’s area of jurisdiction.86
The court further has the power to award deferred or postponed care/residency to a par-
ent. This means that the parent will get care of the child at a later stage only, for example,
once the child has been returned to the area of jurisdiction of the court, or after the parent
has satisfied the court that adequate arrangements have been made to receive the child into
his or her care.
The court may award split or divided care/residency to the parents. Split or divided care
refers to one parent having care of some children and the other parent having care of the
other children. Such an order is not granted lightly, as the courts are loath to separate sib-
lings. Split or divided care is normally awarded only if the care-giving parent neglects some of
the children, or if the change will bring about a substantial improvement in a specific child’s
position.87 Split or divided care also refers to giving care first to one parent and then to the
________________________

79 Par 22.
80 Ibid.
81 On the effects of domestic violence on children, see Bonthuys 1999 SAJHR 312–314, 317–319, 325–326. On
domestic violence, see further ch 21 below.
82 See also Boezaart in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 207. See further Bonthuys
in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 485–489.
83 In Soller v G 2003 (5) SA 430 (W) the court confirmed a care award in favour of a child’s mother but re-
stricted the mother’s care by allowing the child to live with his father. The child was ordered, however, to
spend specified periods with his mother and to phone her at least twice a week. This limitation on the
mother’s right of care is similar to awarding care to the father and contact to the mother.
84 See eg Di Bona v Di Bona 1993 (2) SA 682 (C).
85 S 18(3)(c)(iii). On this requirement, see further above in this chapter and ch 23 below.
86 See eg Theron v Theron 1939 WLD 355; Stock v Stock 1981 (3) SA 1280 (A). On contact, see below in this
chapter.
87 Van der Linde v Van der Linde 1996 (3) SA 509 (O).
184 South African Family Law

other parent. For example, a boy’s mother may have care while the child is young, with the
father gaining care when the child reaches a specified age.
The court also has the power to award sole care to either parent. This may happen, for
example, if one of the parents has abused the child. In exceptional cases the court may de-
prive both parents of care and award it to a third party.88

14.5.4 Contact
(a) The meaning of “contact”
As indicated above in this chapter, “contact” is the statutory equivalent of the common-law
right of access. It refers to maintaining a personal relationship with the child and communi-
cating with the child on a regular basis if the child lives with someone else. The communica-
tion may take place in person (for example, by visiting the child or being visited by the child)
or in any other way (for example, via telephone calls, telefaxes, letters, videos, video calls,
electronic mail and mobile phone text messages).89
(b) The order the court may make in respect of contact
Parents who are getting divorced may agree on how contact should occur. The agreement
may be in general terms, such as that the non-care-giving parent will have reasonable contact,
or it may be very specific as to the frequency of contact, the times during which and the
places where contact may be exercised, and so forth. In other words, the parties may agree on
structured or defined contact.
If the parties do not enter into an agreement or if the court does not make an order in
accordance with the terms of their agreement,90 the court may make whatever order it deems
fit regarding contact. The court may order structured or defined contact or make an order in
general terms, such as that the non-care-giving parent is awarded reasonable contact. An
award of reasonable contact means that the non-care-giving parent may have contact with the
child at reasonable times, places and intervals. The parents usually reach agreement on what
is reasonable in their particular circumstances. By virtue of having been entrusted with the
child’s care, the care-giving parent has the final say in the case of a dispute, but he or she may
not impose unreasonable restrictions or conditions negating contact.91 The care-giving parent
may, for example, usually not insist that contact take place at his or her home or in his or her
presence.92 Nor may he or she refuse to allow the other parent to introduce the child to his or
her new spouse, civil union partner, life partner or companion, unless contact with that per-
son is not in the child’s best interests.93 If the parents are unable to agree on what constitutes
reasonable contact, either of them may approach the court for an order structuring contact as
it sees fit.94
The court may impose any conditions and/or restrictions on contact that it deems in the
best interests of the child. For example, if siblings are not in the same parent’s care, the court
may order that contact be exercised in such a way that the children spend weekends togeth-
er.95 If the relationship between the non-care-giving parent and the child is very poor, the
________________________

88 Edge v Murray 1962 (3) SA 603 (W); see also Hoyi v Hoyi 1994 (1) SA 89 (E). For criticism of the courts’ “un-
critical preference for biological parents in custody disputes” (337), see Pieterse 2000 Stell LR 324.
89 S 1(1) of the Children’s Act. On so-called “virtual visits” by means of electronic communication tools such
as e-mail, instant messages, video conferences and video calls, see Bregman June 2007 De Rebus 34; Knoetze
Nov 2013 De Rebus 24.
90 On the court’s power to make an order in accordance with the terms of a settlement agreement, see ch 12
above.
91 See eg Vucinovich v Vucinovich 1944 TPD 143; Marais v Marais 1960 (1) SA 844 (C); Du Preez v Du Preez 1969
(3) SA 529 (D).
92 See eg Mitchell v Mitchell 1904 TS 128; Hodgkinson v Hodgkinson 1949 (1) SA 51 (E).
93 See eg Wolfson v Wolfson 1962 (1) SA 34 (SR).
94 Marais v Marais 1960 (1) SA 844 (C); Bongers v Bongers 1965 (2) SA 82 (O).
95 Van Rooyen v Van Rooyen [2001] 2 All SA 37 (T). On the benefits of contact between siblings, see La-
buschagne and Van der Linde 2003 De Jure 349–351. On split or divided care, see above in this chapter.
 Chapter 14: The interests of the children of divorcing parents 185

court may order phased-in contact. In other words, the court may order that initially contact
is to occur only occasionally, and that contact should become more regular as the re-
96
lationship improves. The court may also postpone contact until the non-care-giving parent
has, for example, successfully undergone treatment for alcoholism, drug-dependency or
abusive behaviour. A parent’s contact may also be suspended pending a psychological or psy-
chiatric evaluation to determine whether contact is in the child’s best interests and/or pend-
ing the parent’s undergoing psychological or psychiatric treatment or therapy.97
The court may also order supervised contact. This entails that a specified person, such as
the care-giving parent or his or her representative, a social worker, psychologist, psychiatrist
or an independent person nominated by the Family Advocate must be present when the non-
care-giving parent exercises his or her right of contact.98 An order for supervised contact is
normally made only if contact entails a clear risk to the child, such as abuse or abduction, or
if a long period of time has elapsed since the child last had contact with the parent.
Other restrictions the court may impose include prohibiting physical contact. The parent
may be prohibited from seeing or visiting the child in person but may be allowed to com-
municate with the child by means of telephone calls, telefaxes, letters, videos, video calls,
electronic mail, mobile phone text messages and so forth.99
If the divorce order is silent on contact, the non-care-giving parent is still entitled to have
contact with the child. The court will deny the non-care-giving parent contact only if this is in
the child’s best interests.100 Extreme antipathy by the care-giving parent towards the non-care-
giving parent is an insufficient ground for denying the non-care-giving parent contact.101 Like-
wise, the mere fact that the child is opposed to contact does not invariably mean that the non-
care-giving parent must be denied contact. The child’s views and the reasons for his or her
opposition to contact must be considered with due regard to his or her age, maturity and
stage of development.102 For example, if teenagers are vehemently opposed to contact by their
father because he committed domestic violence against their mother and has had only irregu-
lar contact with them for some time, the court may well deny the father contact, as the court
did in I v S.103 If the court is convinced that this is in the child’s best interests, it may award
contact to a third party who does not have an inherent right of contact, such as a sibling,
grandparent, or step-parent, but then it does so in its capacity as upper guardian of all
minors.104
The court should be careful how it formulates its judgment about the reasons why con-
ditions are being imposed on contact or why contact is being denied. In Van Rooyen v Van
Rooyen 105 a lesbian mother sought an order defining her contact rights to her two children, a
________________________

96 See eg Redelinghuys v Redelinghuys [2010] ZAECPEHC 68 (22 October 2010).

97 R v H [2006] 4 All SA 199 (C), 2005 (6) SA 535 (C).
98 See eg Clutton v Clutton 1929 EDL 174; LS v AT 2001 (2) BCLR 152 (CC) (also reported as Sonderup v
Tondelli 2001 (1) SA 1171 (CC)); Duncan v Coetzee [2012] ZAECPEHC 71 (25 September 2012).
99 On the different types of contact, see further Boezaart in Heaton (ed) Law of Divorce and Dissolution of Life
Partnerships 211; Bosman and Van Zyl in Robinson (ed) Law of Children and Young Persons 62–63; Schäfer
The Law of Access to Children ch 9. On defined or structured contact, see also Schäfer in Clark (ed) Family
Law Service par E61.
100 See eg Van den Berg v Van den Berg 1959 (4) SA 259 (W); Dawn v Dawn 1968 (1) PH B3 (D).
101 Kougianos v Kougianos Case AR926/94 (N) (unreported), discussed by Singh 1996 SALJ 701. The court
overturned the decision of the court a quo (Kougianos v Kougianos Case 957/93 (D) (unreported), dis-
cussed by Singh 1996 SALJ 170) in which the father had been denied contact because of the intense aver-
sion of the mother to his having contact.
102 S 10 of the Children’s Act.
103 2000 (2) SA 993 (C). Although this case concerned the position of children born of unmarried parents, a
court would surely reach the same conclusion in respect of children born of married parents who are get-
ting divorced. On the ways in which domestic violence is relevant with regard to contact, and the effect of
domestic violence on children, see Bonthuys 1999 SAJHR 312–314, 317–319, 325–326.
104 On the High Court’s upper guardianship of all minors, see ch 23 below.
105 1994 (2) SA 325 (W).
186 South African Family Law

boy aged 11½ and a girl aged 9½. Her fitness as a mother was never in dispute. In a decision
replete with judgemental remarks about the abnormality and unacceptability of homosexual
relationships, Flemming DJP held that although the mother had the freedom to choose her
own lifestyle her children’s best interests could not be served by allowing them to be exposed
to their mother’s lesbian relationship. He granted the mother contact but imposed several
conditions under which she had to exercise it. He required, inter alia, that her female partner
be excluded from her bedroom when the children slept over during weekends and be alto-
gether excluded from the house when the children spent school holidays with their mother.
She was further ordered to take all reasonable steps to prevent exposing the children to
lesbianism or articles such as videos or photographs which might connote homosexuality or
approval of lesbianism. Van Rooyen was decided prior to the coming into operation of the Bill
of Rights.
After the coming into operation of the Bill of Rights, Foxcroft J in V v V 106 criticised Flem-
ming DJP’s remarks in Van Rooyen and held that, in view of the equality clause,107 it is legally
wrong to describe homosexual orientation as abnormal. He pointed out, however, that
because the child’s rights are paramount, “situations may well arise when the best interests of
the child require that action is taken for the benefit of the child which effectively cuts across
the parents’ rights”.108 In V the parents had for approximately two years before their divorce
by arrangement exercised joint care. At the time of the divorce, the father asked the court to
award sole care to him and to allow the mother, who was a lesbian, only supervised contact
and only in his home. The court held that the mother was a good and fit mother and that it
would be unfair to her and the children to force her to exercise contact in the position of a
visitor to her ex-husband’s home. The court concluded that joint care should continue.109
In a sequel to the Van Rooyen decision referred to above, the court subsequently granted
the mother interim care of her daughter after a rift developed between father and daugh-
ter.110 The father had read his daughter’s diary and had been incensed by learning that she
had entered into an intimate relationship with her boyfriend and had once taken Ecstasy. He
became emotionally abusive and terrified his daughter. In his judgment, Bertelsmann J sup-
ported Foxcroft J’s view in V that describing homosexuality as abnormal violated the equality
clause. He held that there is no justification for regarding a lesbian home as per se less suitable
than one in which another sexual orientation prevails. He further held that Flemming DJP’s
order in the original Van Rooyen case was
clearly constitutionally untenable as it prevents the applicant and her partner from living a nor-
mal life as partners, sharing a bedroom, displaying affection for one another and using whatever
household and personal items they would normally do in their home in the presence of the chil-
dren.111

________________________

106 1998 (4) SA 169 (C) 189B, Heaton and Kruger Casebook on Family Law case [60].
107 S 9 of the Constitution.
108 189B–C.
109 In Greyling v Minister of Welfare and Population Development Case 98/08197 (W) (unreported), the removal of
a woman’s child from her care on the ground of her lesbianism was also set aside: Jordaan 1998 De Jure
303.
110 Van Rooyen v Van Rooyen [2001] 2 All SA 37 (T).
111 41b. On the constitutional arguments regarding the position of a homosexual parent, see further De Vos
Bill of Rights Compendium pars 3J51–3J52; Heaton Bill of Rights Compendium par 3C30; Van Heerden in Van
Heerden et al (eds) Boberg’s Law of Persons and the Family 545–546; Visser and Potgieter 170 fn 108; Bon-
thuys 1994 Stell LR 298; Brits 1994 THRHR 710; De Vos 1994 SALJ 687; Lind 1995 SALJ 488–489; Singh
1995 SAJHR 571; Viljoen 1995 Stell LR 232; Pantazis 1996 SAJHR 291; Clark 1998 CILSA 288; Jordaan 1998
De Jure 302; Labuschagne 1999 SALJ 492–493; Ramolotja 1999 (1) Codicillus 13–14; Clark 2000 Stell LR 16–
17; Van Schalkwyk 2000 THRHR 296–297; Robinson 2005 Journal for Juridical Science 107. On the various
approaches the courts adopt in determining the child’s best interests if the child’s parent is lesbian or gay,
see Bonthuys op cit 310 et seq; Clark 1998 CILSA 288; Jordaan op cit. See further Bonthuys 1999 THRHR
561–564. Pantazis 2000 SALJ 51 points out that courts invariably assume that children are heterosexual.
continued
 Chapter 14: The interests of the children of divorcing parents 187

14.5.5 Maintenance
(a) The meaning of “maintenance”
Maintenance is not defined in the Children’s Act and thus retains its common-law meaning of
encompassing items like food, clothing, accommodation, medical care and a suitable educa-
tion.112
(b) The order the court may make in respect of maintenance
After their divorce, both parents remain obliged to support their children in accordance with
their respective means.113 Normally, the non-care-giving parent is ordered to pay the care-
giving parent a specified amount of maintenance for the children on a weekly or monthly
basis. However, the parent with whom an adult114 but dependent child lives may not claim
maintenance on behalf of the adult child, because only the adult child has locus standi to sue
for his or her maintenance.115 The adult child need not, however, institute separate proceed-
ings to claim maintenance. He or she may be joined as a party in the divorce proceedings and
claim maintenance in his or her own name in those proceedings because section 6(3) of the
Divorce Act empowers the court which grants a divorce to make any order it deems fit in
regard to the maintenance “of a dependent child of the marriage”.116
This position, which is a direct result of the lowering of the age of majority to 18 years,
places many dependent young adults in a prejudicial position, for the following reasons.
Firstly, it is generally accepted that it is undesirable for children to become involved in the
conflict between their divorcing parents by being joined as parties in divorce proceedings.
Secondly, the adversarial system of litigation still forms part of the divorce process. Although
our courts permit a relaxation of the adversarial approach in cases involving children, this
approach does not benefit young adults as they are no longer children. Thirdly, it may be very
awkward for the parent with whom the child lives to expect the adult child to pay over some
of the maintenance received as a contribution to the child’s living costs. Further, some adult
dependent children refuse to institute their own maintenance claims, thereby placing an even
heavier burden on the parent with whom they reside, who is usually the mother. This further
117
exacerbates the already vulnerable position many women find themselves in after divorce.
In two recent cases our courts have come to the aid of mothers and adult dependent chil-
118
dren who resided with them after divorce, albeit in very different ways. In Butcher v Butcher a
mother applied for maintenance for herself and her two daughters aged 18 and 21 who lived
with her, in terms of rule 43 of the Uniform Rules of Court, pending divorce litigation. She
applied for maintenance in the form of a specified monthly amount for herself, as well as
certain expenses related to the household and the daughters’ clothing, pocket money, cell
phone accounts and the maintenance of their motor vehicles. The court confirmed that only
an adult child has locus standi to sue the other parent for maintenance, as neither the Divorce
________________________

He indicates that if a child is homosexual, the child’s parent(s) may discriminate against him or her and
not act in his or her best interests: 64.
112 Wheeler v Wheeler [2011] 2 All SA 459 (KZP) (also reported as WW v EW 2011 (6) SA 53 (KZP)); Heaton in
Davel and Skelton (eds) Commentary on the Children’s Act 3-5. For a more detailed description of the con-
tent of maintenance, see ch 23 below.
113 S 15(3)(a)(i) and (ii) of the Maintenance Act; s 21(2) of the Children’s Act; Herfst v Herfst 1964 (4) SA
127 (W); Zimelka v Zimelka 1990 (4) SA 303 (W); Osman v Osman 1992 (1) SA 751 (W); B v B [1999] 2 All
SA 289 (SCA) (also reported as Bursey v Bursey 1999 (3) SA 33 (SCA)). On the duty of support in respect
of a child, see further ch 23 below.
114 In terms of s 17 of the Children’s Act, a minor attains majority (ie, becomes an adult) at the age of 18
years.
115 Smit v Smit 1980 (3) SA 1010 (O); Butcher v Butcher 2009 (2) SA 421 (C), Heaton and Kruger Casebook on
Family Law case [62].
116 Butcher v Butcher 2009 (2) SA 421 (C). See also above in this chapter.
117 See in general De Jong 2013 THRHR 654.
118 2009 (2) SA 421 (C), Heaton and Kruger Casebook on Family Law case [62].
188 South African Family Law

Act nor the Children’s Act expressly authorises one parent to claim maintenance from the
other parent on behalf of the child. The court consequently dismissed the claim for specific
individual expenses in respect of the adult children such as their pocket money, cell phone
accounts, clothing and motor vehicle expenses, finding that these expenses must be claimed
as maintenance by the child. However, the court held that the parent with whom the adult
dependent child lives may include amounts relating to the child’s general expenses, such as
the child’s food and groceries and other general household expenses which may also relate to
the child, in her claim for interim maintenance. One of the reasons for this finding is that, in
terms of section 7(2) of the Divorce Act, one of the considerations the court must take into
account when deciding a claim for spousal maintenance is the parties’ respective financial
needs and obligations. If an adult dependent child lives with a parent, that parent has to “use
her household budget to run the family home and provide groceries for a three-member
119
household”. In this way she incurs an “obligation” within the meaning of section 7(2). This
obligation was taken into account in determining the amount of the interim maintenance to
120
which the mother was entitled.
121
In a case with a very similar set of facts, a different approach was followed. In JG v CG the
parent with whom the child was living also claimed maintenance for herself in terms of rule
43. She not only claimed for her own expenses but also for expenses relating to general
household items in which the child shared (such as groceries consumed, in part, by the child)
and expenses relating specifically to the child (such as his clothing, cell phone, pocket mon-
ey, haircuts, studies and recreational expenses). Advocating a proper and purposive interpre-
tation of rule 43 read with sections 6 and 7(2) of the Divorce Act and the common law, the
court rejected the decision in Butcher, and allowed the parent to claim not only shared or
general expenses, but also specific individual expenses in respect of an adult dependent child
who had not been joined in the proceedings. The court emphasised that this type of award
would not be appropriate in every case, but that the facts and circumstances of each case must
determine whether the court should make the order requested.
Although the approach in JG v CG is simpler, more convenient, and more practical than
the approach adopted in Butcher, it remains to be seen which of these decisions will be fol-
lowed in future. The legislature ought to address this problem by enacting legislation that
expressly confers locus standi on a parent with whom a dependent adult child lives to sue the
other parent for maintenance on the child’s behalf. This legislation should not limit the adult
122
dependent child’s locus standi in any way.
De Jong is of the view that, generally, adult dependent children should not be joined as
parties in divorce proceedings to institute their own maintenance claims. She advocates an
expansive interpretation of the Children’s Act to include adult dependent children in respect
of their maintenance claims upon their parents’ divorce, recommending that these claims
123
should be dealt with by their parents in parenting plans together with minor siblings’
maintenance claims and arrangements regarding the minor children’s guardianship, care
and contact. If the divorcing parents no longer have any minor children, or where they do
not conclude a parenting plan, the maintenance claims of adult dependent children could be
dealt with in the spouses’ settlement agreement. If the parents cannot agree on a parenting
plan or settlement agreement, the parent with whom the adult dependent child resides
124
should be able to institute a maintenance claim on behalf of the child.

________________________

119 Par 17.

120 Ibid.
121 2012 (3) SA 103 (GSJ), Heaton and Kruger Casebook on Family Law case [63].
122 See Heaton 2009 Annual Survey of South African Law 480; 2012 Annual Survey of South African Law 349.
123 In terms of ss 33–35 of the Children’s Act. On parenting plans, see ch 23 below.
124 De Jong 2013 THRHR 661–665.
 Chapter 14: The interests of the children of divorcing parents 189

The care-giving parent cannot claim maintenance from the other parent if the latter does
not have the means to support the child. In Zimelka v Zimelka 125 the court emphasised that a
maintenance order is ancillary to the duty of support.126 It does not follow that because there
is a duty of support, there must be an award against the non-care-giving parent. The practical
incidence of the duty of support depends on the facts of each case and the parent’s ability to
contribute to the child’s maintenance at the particular time. In this case, the original divorce
order provided that care was awarded to the father and that he would maintain the children
without a contribution from their mother. The father subsequently applied for an order com-
pelling the mother to contribute to the children’s maintenance. The court found that the
mother could not afford to pay maintenance and that she did in fact make a substantial con-
tribution to the children’s maintenance, as they spent part of the year with her.127 Conse-
quently, the court refused to vary the original order.
The care-giving parent may not claim so much maintenance for the child that the non-care-
giving parent retains no income. In Baart v Malan 128 the parties entered into a settlement
agreement which was incorporated into the divorce order.129 They agreed that the children
would be placed in their father’s care. As her contribution to the children’s maintenance, the
mother undertook to pay her gross salary each month, as well as her annual bonus, to the
children’s father. She assumed this burden for a period of 20 years. After honouring her
obligations for 17 months, she sought an order varying the agreement. The court found that
the effect of the agreement was that the mother was required to pay more than she earned
each month as her monthly income tax payments were deducted from her salary before she
received it. This meant that the agreement deprived her of any material benefit from her
employment. The court concluded that the clause was unconscionable and contrary to public
policy and struck it from the deed of settlement.

14.6 Enforcement of guardianship, care and contact

14.6.1 Introduction
The various elements of parental responsibilities and rights can be enforced by way of civil
and criminal remedies. The enforcement of maintenance is discussed in chapter 5 above. The
discussion below deals only with the enforcement of guardianship, care and contact.

14.6.2 Interdict
Anyone who threatens to interfere with the legitimate and proper exercise of any element of
guardianship, care or contact can be interdicted from doing so.130 For example, if the non-
care-giving parent threatens to remove the child from the school in which the care-giving
parent has, in the proper exercise of his or her responsibility and right of care, placed the
child, an interdict can be issued against the non-care-giving parent. If interference has already
occurred, the person can also be instructed to restore the status quo ante (that is, the previous
position) and/or be interdicted from engaging in further interference. For example, if one
parent removes the child from the other parent’s lawful care, he or she can be ordered to
________________________

125 1990 (4) SA 303 (W); see also Kemp v Kemp 1958 (3) SA 736 (D); B v B [1999] 2 All SA 289 (SCA) (also
reported as Bursey v Bursey 1999 (3) SA 33 (SCA)).
126 S 15(1) of the Maintenance Act also recognises that a maintenance order is ancillary to the duty of sup-
port. This section provides that a maintenance order in respect of a child is directed at the enforcement
of the common-law duty of support as it exists at the time of making the order and is expected to contin-
ue. On the Maintenance Act, see ch 5 above.
127 On taking the value of the labour involved in rendering child-care into account in respect of a mainten-
ance award, see further Bonthuys 2001 THRHR 204–205.
128 1990 (2) SA 862 (E).
129 On settlement agreements, see ch 12 above.
130 See eg Taylor v Taylor 1952 (4) SA 279 (SR); Van Tonder v Van Tonder 2000 (1) SA 529 (O).
190 South African Family Law

return the child and refrain from removing the child in future. This rule applies even in the
absence of an existing court order awarding care to the parent from whom the child was
removed.131

14.6.3 An order directing compliance

If either parent fails to comply with the terms of an existing court order regarding guardian-
ship, care or contact, the court may issue an order directing compliance.132 However, if the
breach took the form of removing the child from South Africa, the South African court does
not have jurisdiction to order the child’s return. Instead, the court which has jurisdiction in
the area where the child now resides must be approached for an order compelling the child’s
return to South Africa. If a South African court made an order in such a situation, the order
could not be enforced by the South African court and would therefore be ineffective.133 If the
country or state to which the child has been removed is a party to the Hague Convention on
the Civil Aspects of International Child Abduction and the child is below the age of 16 years,
the provisions of this Convention can be used to obtain the child’s return to South Africa so
that any dispute regarding care or contact can be decided here. The Convention is discussed
in chapter 23 below.

14.6.4 Reasonable force

It has been held that a parent who wants to enforce contact may use reasonable force to do so
and may expect the care-giving parent to take steps to persuade an unwilling child to submit
to contact.134 Whether this approach is acceptable in present times is unclear. What is clear is
that the child’s views on why he or she does not want contact must be established and given
due consideration, taking his or her age, maturity and stage of development into account.135 It
is submitted that if an older child is intractably opposed to contact and his or her opposition
136
is not simply the product of parental indoctrination or parental alienation syndrome, the
child ought not to be forced to endure contact.

14.6.5 Criminal sanctions

Refusing to allow someone who has a right to contact or who holds parental responsibilities
and rights in terms of a court order or a parental responsibilities and rights agreement that
has taken effect137 to exercise such right is a crime.138 Preventing the exercise of such right is
also a crime.139 Furthermore, a person who has care while another person has a right of con-
tact or has parental responsibilities and rights in terms of a court order or a parental respon-
sibilities and rights agreement that has taken effect, must immediately notify the other person
in writing of any change in his or her residential address.140 Failure to give such notice is a
crime.141 Punishment for any of these crimes is a fine or imprisonment for up to one year.142
________________________

131 See eg Van Tonder v Van Tonder 2000 (1) SA 529 (O).
132 See eg Matthews v Matthews 1983 (4) SA 136 (SE); Jonker v Stoffels [2010] JOL 25571 (NCK). On the
practical problems the parent may encounter in obtaining such an order, see Hlophe 1998 SALJ 441.
133 See eg Di Bona v Di Bona 1993 (2) SA 682 (C); B v S [2006] 4 All SA 515 (SCA), 2006 (5) SA 540 (SCA).
134 Oppel v Oppel 1973 (3) SA 675 (T); Germani v Herf 1975 (4) SA 887 (A); Katz v Katz [2009] JOL 23557
(GSJ), but see Pommerel v Pommerel Case 4042/1986 (SE) (unreported).
135 S 10 of the Children’s Act.
136 On parental alienation syndrome, see Bosman-Sadie and Corrie 64; Chürr LitNet Akademies (Regte) 8 April
2015, http://www.litnet.co.za/Article/aantekeninge-oor-regsaspekte-van-ouervervreemdingsindroom-in-
suid-afrika (accessed 22 June 2015).
137 A parental responsibilities and rights agreement takes effect when it is registered by the Family Advocate
or made an order of court in terms of s 22(4) of the Children’s Act. See further ch 23 below.
138 S 35(1) of the Children’s Act.
139 Ibid.
140 S 35(2)(a) of the Children’s Act.
141 S 35(2)(b) of the Children’s Act.
142 S 35(1) and (2)(b) of the Children’s Act.
 Chapter 14: The interests of the children of divorcing parents 191

Anyone who wilfully and in a mala fide manner exercises any aspect of guardianship, care or
contact in violation of an existing court order can also be charged with contempt of court.
The same applies if someone frustrates an order regarding guardianship, care or contact wil-
fully and in a mala fide manner.143 For example, if a divorce order includes a term that the
care-giving parent may not remove the child to another province without first obtaining the
other parent’s consent, the care-giving parent can be charged with contempt of court if he or
she secretly relocates the child to another province. It must be borne in mind, however, that
the mere fact that a parent may be in contempt of court does not mean that the court is com-
pelled to enforce the existing order. If enforcement is not in the child’s best interests, the
court will refuse to enforce the order. Thus, for example, a court will not order that a child be
returned to the care of someone who is known to be abusing him or her.

14.7 Rescission, suspension and variation of an order made upon

divorce
Section 8(1) of the Divorce Act provides that the court may rescind or vary an order regard-
ing guardianship, care, contact or maintenance, or suspend a maintenance order or contact
order made upon divorce if there is sufficient reason for doing so.144 If the Family Advocate
has instituted an enquiry in terms of the Mediation in Certain Divorce Matters Act, the court
may not grant an application for rescission, variation or suspension unless it has considered
the Family Advocate’s report and recommendations.145 The paramount concern is the child’s
best interests.146 The child may participate in the matter depending on his or her age, maturi-
ty and stage of development.147
It should also be borne in mind that section 5(1) of the Matrimonial Affairs Act 37 of 1953
empowers the court to make whatever order it deems fit in respect of guardianship or care of,
or contact with, a child who was born of married parents. This order may be made on the
application of either parent if the child’s parents are already divorced. In other words, section
5(1) of the Matrimonial Affairs Act can be used to obtain a post-divorce order regarding
guardianship, care or contact.148
Further, in its capacity as upper guardian of all minors, the High Court has the power to
vary, rescind or suspend any order regarding guardianship, care, contact or maintenance,149
and a Maintenance Court may vary or rescind a maintenance order in respect of a child in
terms of the Maintenance Act 99 of 1998.150
If a South African court is approached for rescission, variation or suspension of an order a
foreign court made in respect of a child who now resides in South Africa, the common-law
rule is that the court must establish what is in the child’s best interests and make an inde-
pendent judgment on the evidence before it.151 However, if the child is below the age of 16
________________________

143 See eg Hepburn v Miller [2008] JOL 21354 (W), where a suspended sentence of a fine of R20 000 was
imposed on the transgressing parent and Jonker v Stoffels [2010] JOL 25571 (NCK), where the respondent
was sentenced to one month’s imprisonment. The latter sentence was suspended for 10 days provided the
respondent delivered the child to the applicants as ordered.
144 On the meaning of “sufficient reason”, see ch 13 above.
145 S 8(1) of the Divorce Act. On enquiries in terms of the Mediation in Certain Divorce Matters Act, see
above in this chapter.
146 See above in this chapter. See also Gumbi v Goba [2011] JOL 26631 (KZP).
147 S 10 of the Children’s Act.
148 On s 5(1) of the Matrimonial Affairs Act, see ch 23 below.
149 On the court’s powers as upper guardian, see ch 23 below.
150 On variation and rescission of a maintenance order in terms of the Maintenance Act, see ch 5 above. On
the termination of a maintenance order when the child in respect of whom the maintenance must be
paid becomes self-supporting or reaches the age stipulated in the order, see ch 23 below.
151 The same rule applies if enforcement of a foreign care or contact order is sought: see eg Märtens v Märtens
1991 (4) SA 287 (T); Di Bona v Di Bona 1993 (2) SA 682 (C); Kirsh v Kirsh [1999] 2 All SA 193 (C) (also
reported as K v K 1999 (4) SA 691 (C)). Generally on the recognition and enforcement of foreign care
continued
192 South African Family Law

years and has been wrongfully removed to, or is wrongfully retained in South Africa from a
fellow contracting state, the left-behind parent can seek the child’s return in terms of the
Hague Convention on the Civil Aspects of International Child Abduction so that the merits of
any care or contact dispute can be decided in the foreign country, as is explained in chapter
23 below.

________________________

orders in South Africa, see Forsyth 422–423; Schulze in Heaton (ed) Law of Divorce and Dissolution of Life
Partnerships 666–668; Nicholson 1993 (2) Codicillus 4, 1999 CILSA 228–229.
 15
MISCELLANEOUS MATTERS
REGARDING DIVORCE

15.1 Personal consequences of divorce

15.1.1 General
Like the parties’ status changes when they get married, their status also changes when they
1
get divorced. For instance, they are free to remarry after the divorce, and the restrictions on
their capacity to act and to litigate which operated if they were married in community of
2
property cease to apply. Further, the non-owning or non-renting party loses the right to
occupy the former matrimonial home.3 Both parties also lose their right to inherit from one
4
another in terms of the rules of intestate succession. In so far as testate succession is con-
cerned, a special rule applies for three months after the divorce. This rule is discussed under
a separate heading below.
Some of the personal consequences of marriage continue to apply despite the divorce.
Thus the prohibition on marriage between a party and his or her relations by affinity in the
direct line which arose as a result of the marriage continues to operate after the divorce.5
Further, a spouse who was a minor when he or she married retains the status of majority the
marriage conferred on him or her even if the marriage ends in divorce before he or she turns
7
18.6 A divorced woman may continue to use her married surname. She may also resume a
surname she bore at any previous time (such as her maiden name) or add any surname she
8
bore at any prior time to the surname she assumed after getting married. Her former hus-
band does not have the same choice. As indicated in chapter 5, this differentiation between
(former) wives and (former) husbands may well be unconstitutional.

15.1.2 The effect of divorce on a will

It often happens that one spouse nominates the other as a beneficiary in his or her will. If the
spouses subsequently divorce, the question arises whether the former spouse will still inherit

________________________

1 No waiting period applies; either spouse (or both spouses) may remarry as soon as the divorce has been
granted.
2 Gugu v Zongwana [2014] 1 All SA 203 (ECM). See further Sonnekus in Heaton (ed) Law of Divorce and
Dissolution of Life Partnerships 45–48.
3 In Dique v Van der Merwe [2001] 2 All SA 289 (T), 2001 (2) SA 1006 (T) it was held that a widow cannot
invoke the right to occupy the matrimonial home as this right exists only during the subsistence of the
marriage. Logically, the same applies to a divorced spouse. On mechanisms which can be used to afford the
non-owning spouse the right to continue occupying the matrimonial home, see Sonnekus in Heaton (ed)
Law of Divorce and Dissolution of Life Partnerships 50–54.
4 See further Sonnekus in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 49.
5 See ch 3 above and s 8(6) of the Civil Union Act 17 of 2006.
6 Voet 4.4.6; Cohen v Sytner (1897) 14 SC 13.
7 S 26(1) of the Births and Deaths Registration Act 51 of 1992.
8 Ibid. See further Sonnekus in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 39–44.

193
194 South African Family Law

in terms of the will. If the testator changes his or her will to disinherit his or her former
spouse the answer is clear – the former spouse will not inherit. But what happens if the
testator does not change his or her will? The latter situation is governed by section 2B of the
Wills Act 7 of 1953. It provides that if a testator dies within three months of his or her mar-
riage being dissolved by divorce or annulment, any will he or she executed prior to the
dissolution of the marriage will be implemented as if his or her former spouse had died before
the dissolution of the marriage. In other words, the former spouse will be deemed to have
died before the dissolution of the marriage and will therefore not inherit. This is the position
unless it appears from the will that the testator intended to benefit his or her former spouse
despite the dissolution of the marriage. Thus, if the testator no longer wishes his or her former
spouse to inherit, he or she should revoke the existing will. If the will is not revoked and the
testator dies more than three months after the dissolution of the marriage, the testator’s
former spouse inherits if he or she was benefited in the will.9
The provision can be explained by means of the following example. A man benefits his wife
in his will. The spouses subsequently get divorced. One month after the divorce the man dies
without having changed his will. In terms of section 2B, his former wife does not inherit
unless it is clear from the will that the man intended that she should inherit even if they got
divorced. If this intention does not appear from the will, she does not inherit because she is
deemed to have died before the divorce. If, however, the man in this example had died more
than three months after the divorce, his former wife would have inherited from him because
then the deeming clause in section 2B would not have applied.

15.2 Divorce proceedings

15.2.1 The meaning of the concept “divorce action”
Section 1 of the Divorce Act 70 of 1979 defines the concept “divorce action”. It includes the
following:
(1) An action for a decree of divorce or other relief in connection with a divorce.
(2) An application pendente lite for any of the following:
(a) An interdict.
(b) Interim care of, or contact with, a minor child of the marriage.
(c) The payment of maintenance.
(3) An application for a contribution towards the costs of a divorce action.
(4) An application to institute the action or make the application in forma pauperis (that is,
like a pauper).
(5) An application for substituted service of process in the action or application.
(6) An application for edictal citation of a party to the action or application.

15.2.2 Jurisdiction in a divorce action10

Section 2(1) of the Divorce Act provides that a court has jurisdiction if the parties or either of
them:
(1) Is domiciled in the court’s area of jurisdiction on the date on which the action is institut-
ed; or
________________________

9 See further Sonnekus in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 49–50; Sonnekus 1996
THRHR 294.
10 See in general Catto in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 506–511; Hahlo, 5th
edn, 436–438; Lee and Honoré par 133; Kruger in Clark (ed) Family Law Service par F54; Brooks 1979
THRHR 103; Farris 1993 THRHR 277; Horn 1993 Obiter 170. See also Vermeulen v Vermeulen; Buffel v Buffel
1989 (2) SA 771 (NC).
 Chapter 15: Miscellaneous matters regarding divorce 195

(2) Is ordinarily resident in the court’s area of jurisdiction on that date and has been ordin-
arily resident in South Africa for at least one year immediately prior to that date.
The “court” the section refers to is the High Court or a Regional Division of the Magistrate’s
11
Court (also called a Regional Court).
In terms of section 8(2) of the Divorce Act, a court other than the one which made the ori-
ginal divorce order has jurisdiction regarding rescission, suspension or variation of the order
if the parties are domiciled within its area of jurisdiction or the applicant is domiciled within
its area of jurisdiction and the respondent consents to such jurisdiction.12

15.2.3 Instituting a divorce

A spouse must personally institute divorce proceedings. A curator bonis does not have locus
standi to institute divorce proceedings on behalf of a spouse, because “the relationship of
husband and wife is so personal that it would be most inexpedient to allow a third party –
even if he be the curator to the lunatic [that is, the mentally ill person] – to determine
whether or not a divorce should be obtained on behalf of the lunatic”.13
No section of the Divorce Act stipulates the method by which a divorce must be brought
before court. However, the courts require that all divorce proceedings be brought by way of
an action.14
In the Gauteng Local Division of the High Court, Johannesburg an undefended divorce of
a childless couple can be heard without either party being present to give oral evidence, for
all evidence may be submitted by way of affidavit.15

15.2.4 Procedure in divorce and other family-law matters

The adversarial procedure currently applies in most family-law matters, including divorces.
However, a purely adversarial procedure is widely regarded as inappropriate for dealing with
these matters.16 Alternative dispute resolution, especially mediation, as an adjunct to (or even
as a replacement for) the adversarial procedure has been suggested as a more suitable option.
The first official step in the direction of mediation in family law was contained in the Medi-
ation in Certain Divorce Matters Act 24 of 1987, which came into operation on 1 October
1990.17 The title of the Act creates the impression that the Act is concerned with the provision
of mediation services in divorce matters. This is a half-truth. Firstly, the Act is limited solely to
________________________

11 S 1(1) of the Divorce Act. For a critical discussion of the legislation which conferred jurisdiction in a
divorce action on the Regional Divisions of the Magistrate’s Court, see Sloth-Nielsen 2011 Journal for Juridi-
cal Science 1.
12 Parties cannot grant jurisdiction to a court by way of agreement if neither of them is domiciled within the
area of the court’s jurisdiction: Granoth v Granoth 1983 (4) SA 50 (C).
13 Ex parte AB 1910 TPD 1332 1341; see also Spangenberg v De Waal [2008] 1 All SA 162 (T). Although these
decisions relate specifically to a curator bonis, it is submitted that a curator ad litem and a curator personae also
do not have locus standi to institute divorce proceedings, because the extremely personal nature of a mar-
riage is unaffected by the type of curator who is appointed for one of the spouses.
14 In Ex parte Inkley and Inkley 1995 (3) SA 528 (C) the court held that the legal convictions of the community
on the importance of marriage require that a marriage not be terminated without proper consideration of
all the relevant facts, and that motion proceedings are accordingly not suitable for a divorce. But see De
Jong 1996 THRHR 505 who submits that motion proceedings ought to be allowed in respect of undefended
divorces. For a step-by-step guide on instituting a divorce action, see Van Zyl Nov 1999 De Rebus 44; but see
also Kern Jan 2000 De Rebus 5 for a warning on the information on edictal citation in that step-by-step
guide.
15 South Gauteng Practice Direction Note 12(10); see also Catto in Heaton (ed) Law of Divorce and Dissolution
of Life Partnerships 538.
16 See eg De Jong in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 577–581 and the sources
cited there. On the instances where mediation might be inappropriate (eg when there is domestic violence
or a risk of child abuse, substance abuse or mental health problems, or a substantial power imbalance be-
tween the parties which the mediator is unable to address), see eg De Jong in Heaton (ed) op cit 586–587
and the sources cited there.
17 On the Act, see further ch 14 above.
196 South African Family Law

child-related matters. Secondly, the Act and regulations do not expressly make provision for
mediation. However, in practice, the Family Advocate’s role has three components namely,
18
monitoring, evaluation and mediation. Although the monitoring and evaluation functions
are dominant, some type of mediation does take place when the Family Advocate attempts to
19
get the parties to agree on the arrangements for the children whose welfare is at stake.
Despite the limited scope of the Act and of the public “mediation” offered under it, the Act
signified a welcome intention to provide state-funded avenues for less adversarial methods for
the resolution of family-law matters.
Several other legislative initiatives relating to mediation in family-law matters have subse-
quently seen the light of day. However, none of them has established the comprehensive
20
South African approach to mediation in family-law matters authors have called for.
The Children’s Act 38 of 2005 afforded more legislative recognition to mediation and also
increased the scope of state-funded public mediation by expanding the types of cases in which
21
the Family Advocate must play a role. Section 21 imposes compulsory mediation on unmar-
ried parents who cannot agree whether the father meets the requirements for obtaining full
parental responsibilities and rights. Their dispute must be referred for mediation by a Family
Advocate, social worker, social service professional or other suitably qualified person.22 Fur-
thermore, co-holders of parental responsibilities and rights who experience difficulties in
exercising those responsibilities and rights are compelled to seek either the assistance of a
Family Advocate, social worker or psychologist, or mediation through a social worker or other
suitably qualified person in order to try to agree on a parenting plan before they turn to the
23
court. The Act further grants the court the discretion in some instances to order mediation
and to refer a matter or an issue to a lay-forum hearing in an attempt to settle the matter or
issue.24 If a matter is contested, the Children’s Court may also order that a pre-hearing con-
ference be held.25 Further, several provisions of the Act encourage parties to reach agreement
on issues such as the conferment of parental responsibilities and rights on third parties,26
post-adoption agreements,27 and surrogate motherhood agreements.28 Although mediation is
not pertinently mentioned in respect of these matters, it could play a role in facilitating
negotiations between the parties.29 The Act also encourages a conciliatory and consultative
approach, by providing for pre-hearing conferences, family group conferences and other lay
forums.30
Another public mediation initiative operates by way of a pilot scheme at certain Mainte-
nance Courts. This initiative is restricted to training maintenance officers to employ media-
tion skills for purposes of conducting their maintenance investigations. It does not oblige the
31
parties to the maintenance dispute to engage in mediation.
________________________

18 See eg De Jong in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 607; Kaganas and Budlender
4; Van Zyl 2000 Obiter 376.
19 See eg De Jong in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 607; Kaganas and Budlender
4.
20 See eg De Jong 2010 TSAR 529.
21 If the parties choose to use a private mediator (eg a lawyer, social worker or psychologist), they have to pay
for the mediation. If the services of the Family Advocate are used, the mediation is state-funded.
22 S 21(3). On the acquisition of parental responsibilities and rights in terms of s 21, see ch 23 below.
23 S 33(2) read with s 33(5). On parenting plans, see ch 23 below.
24 Ss 49, 70 and 71.
25 S 69.
26 Ss 22(1) and 30(3).
27 S 234(1).
28 S 292 read with ss 293 and 295.
29 See eg De Jong in Boezaart (ed) Child Law in South Africa 123–124; De Jong 2008 THRHR 634 639–640; De
Jong 2010 TSAR 527.
30 Ss 69, 70 and 71. On these forums, see eg Leppan in Sloth-Nielsen and Du Toit (eds) Trials and Tribulations,
Trends and Triumphs 169–173; Louw and Spijker 2007 Obiter 101; Kruger 2009 (2) Speculum Juris 44–45.
31 Although the Strategic Plan of the Department of Justice and Constitutional Development for 2011–2016
envisaged the introduction of mediation services for maintenance matters (South African Law Reform
continued
 Chapter 15: Miscellaneous matters regarding divorce 197

The latest mediation scheme, which came into operation on 1 December 2014, applies to
all civil cases; in other words, it is not restricted to family-law matters. It provides for voluntary,
32
private, court-annexed mediation in all civil cases in twelve Magistrates’ Courts. The media-
33
tion can be initiated before or after the commencement of litigation. If, at the time of the
trial, the parties have not already referred their dispute to mediation, the court may at any
time before judgment enquire into the possibility of mediation and give the parties an oppor-
34
tunity to refer their dispute to mediation. If a request for mediation is made, the clerk or
registrar of the court must explain the purpose, meaning, objectives and benefits of media-
35
tion to the parties. He or she also assists the parties in concluding their agreement to medi-
36
ate, facilitates the mediation, and files mediation agreements and reports. However, he or
she does not conduct the actual mediation. This is done by accredited mediators who are
selected from a panel of mediators approved by the Department of Justice and Constitutional
37
Development. The parties are liable for the mediator’s fees and receive no state-aid in this
38
regard.
Apart from the legislative impetus for mediation in child-related matters, the High Court
has also used its power as upper guardian of all minors to compel parties to engage in media-
39
tion before approaching the court for another order. The level of judicial support media-
40
tion enjoys also appears from MB v NB, where the Gauteng Local Division of the High Court
capped the fees the parties’ legal representatives could charge because they did not counsel
the parties on the benefits of mediation and did not advise the parties to have the matter
mediated at an early stage. The Supreme Court of Appeal has also expressed its support for
mediation in family-law matters. Referring to MB v NB, Lewis JA stated in an obiter dictum in S
41
v J that mediation in family matters is a useful way to avoid protracted and expensive legal
battles, and that litigation should not necessarily be a first resort in these matters. She further
warned legal practitioners to heed section 6(4) of the Children’s Act which provides that in
matters concerning children a conciliatory and problem-solving approach should be followed
42
and a confrontational approach avoided.
________________________

Commission Issue Paper 28 Review of the Maintenance Act 13), the pilot scheme is much more limited in
scope. For an empirical evaluation of the pilot scheme in two cities in South Africa (Pretoria and Johan-
nesburg), see De Jong 2009 THRHR 274–295.
32 GN 855 in GG 38164 of 31 October 2014 read with rule 72 of the Rules of the Magistrates’ Courts. The
scheme will eventually be rolled out to all Magistrates’ Courts: Chauke The Citizen 29 March 2014,
http://citizen.co.za/151585/obtaining-a-court-order-made-easier (accessed 11 February 2015); South Afri-
can Government “Justice and Constitutional Development on Court-annexed Mediation Service”,
http://www.gov.za/court-annexed-mediation-service-increase-access-justice-all 1 December 2014 (accessed
11 February 2015). The Short Process Courts and Mediation in Certain Civil Cases Act 103 of 1991 also
provides for mediation in civil Magistrates’ Court cases, but the procedure provided for in this Act has nev-
er been used in family-law matters: De Jong in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships
609 fn 274.
33 Rule 75(1)(a) and (b) of the Rules of the Magistrates’ Courts; see also rule 74(1) of the Rules of the
Magistrates’ Courts.
34 Rules 75(2) and 79(1) of the Rules of the Magistrates’ Courts.
35 Rule 76(1)(a) of the Rules of the Magistrates’ Courts.
36 See eg rules 76(2), 77(3)–(6), 78(1)(b), 80(2) and 82(1) of the Rules of the Magistrates’ Courts.
37 Rules 73 and 86(2) of the Rules of the Magistrates’ Courts.
38 Rule 84(1) and (2) of the Rules of the Magistrates’ Courts. On this mediation scheme, see further De Jong
in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 609–612; Heaton in Atkin (ed) 2015 Interna-
tional Survey of Family Law 315–319; Manyathi-Jele Apr 2015 De Rebus 11.
39 Van den Berg v Le Roux [2003] 3 All SA 599 (NC); Townsend-Turner v Morrow 2004 (2) SA 32 (C).
40 2010 (3) SA 220 (GSJ).
41 [2011] 2 All SA 299 (SCA) (also reported as FS v JJ 2011 (3) SA 126 (SCA)).
42 On the adversarial procedure, mediation and other forms of alternative dispute resolution in family-law
matters, see further Barratt (ed) Persons and the Family 370; Boniface in Sloth-Nielsen and Du Toit (eds)
Trials and Tribulations, Trends and Triumphs 160–161; De Jong in Heaton (ed) Law of Divorce and Dissolution
of Life Partnerships ch 13; De Jong in Boezaart (ed) Child Law in South Africa ch 5; O’Leary 1 et seq; Schneider
in Sloth-Nielsen and Du Toit (eds) Trials and Tribulations, Trends and Triumphs 149–150; Skelton and Car-
nelley (eds) Family Law 345–347; Van Zyl Divorce Mediation and the Best Interests of the Child chs 4–7; Van Zyl
continued
198 South African Family Law

Currently, arbitration may not be used in any divorce-related matter, as section 2 of the
Arbitration Act 42 of 1965 prohibits arbitration in respect of matrimonial issues.43 In 2001, the
South African Law Commission recommended that the Arbitration Act should be amended to
permit arbitration in matrimonial property disputes which do not affect the rights or interests
of the spouses’ children,44 but the necessary amendment has not yet been effected by the
legislator.
Apart from the difficulties arising from the current divorce procedure, access to justice is
another problem in respect of family-law matters, for the majority of the population cannot
afford to pay lawyers’ fees.45

15.3 Relief pendente lite

15.3.1 General
Rule 43(1) of the Uniform Rules of Court empowers the High Court to make an order when-
ever a spouse requests one or more of the following forms of relief while a matrimonial action
is pending:
(1) Maintenance pendente lite (or interim maintenance) for himself or herself or the spouses’
minor children.
(2) A contribution towards the costs of the pending matrimonial action.
(3) Interim care of a child.
(4) Interim contact with a child.
Rule 58 of the Rules of the Magistrates’ Courts confers the same power on a Regional Court.
In Zaphiriou v Zaphiriou 46 it was held that rule 43 of the Uniform Rules of Court can be
invoked even if the validity or subsistence of the marriage that the matrimonial action relates
to is in dispute, and that the word “spouse” in rule 43(1) must be interpreted to include not
only a person who is admitted to be a spouse but also a person who alleges that he or she is a
spouse but whose allegation is denied. In Zaphiriou there was prima facie evidence that the
parties had concluded a civil marriage, but the husband alleged that the marriage had been
terminated by divorce. In Baadjies v Matubela 47 there was no prima facie evidence of any type of
marriage having been concluded between the parties. On this ground, the court distin-
guished the case before it from Zaphiriou and refused to consider an application in terms of

________________________

Alternative Dispute Resolution in the Best Interests of the Child chs 4–7; Scott-Macnab and Mowatt 1986 De Jure
313, 1987 De Jure 41; Mowatt 1988 TSAR 47; Burman and Rudolph 1990 SALJ 251; Mowatt 1991 TSAR 289,
1992 CILSA 44; Clark 1993 THRHR 454; Folb and De Bruyn 1994 SALJ 316; Goldberg 1995 THRHR 276,
1996 TSAR 358, 1998 TSAR 748; Bonthuys 1999 SAJHR 319–322; Van Zyl Apr 2000 De Rebus 27; De Jong
2005 TSAR 33, 2005 THRHR 95; Cohen Aug 2007 De Rebus 5; De Jong 2007 CILSA 280, 2008 THRHR 454
and 630, 2009 THRHR 275, 2010 TSAR 515; Boniface 2012 PELJ 377; De Jong 2012 Stell LR 235–239, 2014
PELJ 2356; Van der Berg Apr 2015 De Rebus 24.
43 On arbitration of disputes regarding the patrimonial consequences of divorce, see Cohen 1993 De Rebus
642, Feb 2000 De Rebus 7. See further De Jong 2014 PELJ 2356, who advocates using arbitration as an option
for the resolution of family-law disputes, either alone or in conjunction with mediation. On the issue of
whether parenting coordination amounts to arbitration, see De Jong in Heaton (ed) Law of Divorce and Dis-
solution of Life Partnerships 616; De Jong July 2013 De Rebus 38.
44 Report on Domestic Arbitration pars 3.28–3.30.
45 Some people are able to obtain legal advice (and sometimes legal representation) through Legal Aid South
Africa (formerly the Legal Aid Board), legal aid clinics at universities or legal advice centres of non-
governmental organisations. One of the access-to-justice initiatives is the People’s Family Law Centre in
Cape Town. The centre is a partnership between private donors and the Department of Justice and Consti-
tutional Development. It offers the services of specialised paralegals and a mediation panel: Burman and
Glasser 2003 SAJHR 486.
46 1967 (1) SA 342 (W).
47 2002 (3) SA 427 (W).
 Chapter 15: Miscellaneous matters regarding divorce 199

rule 43 by a woman who alleged that she was married at customary law. In AM v RM 48 the
court extended the approach in Zaphiriou to a Muslim marriage which the husband alleged
had been terminated by divorce. In Hoosein v Dangor 49 Yekiso J also relied on Zaphiriou and
ordered the husband in a Muslim marriage to pay interim maintenance to his wife and to
make a contribution towards her costs in respect of the pending matrimonial action between
the spouses.50
The objective of the rules relating to interim relief is to have these interim matters adjudi-
cated expeditiously and cheaply.51 The courts often warn against elaborate declarations and
unduly complicated applications because this entails abuse of the procedure and unnecessary
costs.52
The High Court may make an order in terms of rule 43 even if the matrimonial proceed-
53
ings that are pending between the parties were instituted in a Regional Court.

15.3.2 Maintenance pendente lite and a contribution towards costs

In chapter 5 above it is indicated that litigation costs are part of the duty of support. In terms
of the common law, matrimonial guilt determines whether a spouse can claim support during
the subsistence of the marriage. By virtue of this approach, a spouse who causes the break-
down of his or her marriage is not entitled to interim maintenance or a contribution towards
the costs of the pending matrimonial action. Prior to the coming into operation of the
Divorce Act in 1979, the common-law approach operated in respect of applications in terms
of rule 43 of the Uniform Rules of Court.54 Our courts have subsequently held that the en-
actment of no-fault divorce55 has altered the position. In Carstens v Carstens 56 the court held
that the rationale for using matrimonial guilt as the determining factor in the context of
interim maintenance and a contribution towards costs has fallen away because the Divorce
Act no longer requires matrimonial misconduct for a divorce to be granted. Instead of relying
on matrimonial guilt, the court held that it is against public policy to award interim mainte-
nance to a wife who was living with another man as husband and wife. Even though the court
dismissed the wife’s claim for interim maintenance, it ordered a contribution towards costs in
her favour. It held that, as the spouses were married in community of property and the wife
could consequently claim part of the joint estate upon divorce, she was entitled to a contribu-
tion towards costs to enable her to pursue her claim in respect of the joint estate. In Dodo v
Dodo 57 and SP v HP 58 the courts adopted the same approach. The conclusion to be reached is
that public policy determines whether interim maintenance is to be awarded, while the issue

________________________

48 2010 (2) SA 223 (ECP). For criticism of the decision, see Kruuse 2009 (2) Speculum Juris 127.
49 [2010] 2 All SA 55 (WCC), 2010 (4) BCLR 362 (WCC).
50 AM v RM and Hoosein v Dangor are discussed in more detail in ch 18 below.
51 See eg Colman v Colman 1967 (1) SA 291 (C); Zaphiriou v Zaphiriou 1967 (1) SA 342 (W); Varkel v Varkel 1967
(4) SA 129 (C); Mather v Mather 1970 (4) SA 582 (O); Henning v Henning 1975 (2) SA 787 (O); Verster v
Verster 1975 (3) SA 493 (W); Andrade v Andrade 1982 (4) SA 854 (O); Grauman v Grauman 1984 (3) SA 477
(W); Greenspan v Greenspan 2000 (2) SA 283 (C); Baadjies v Matubela 2002 (3) SA 427 (W). The application
is usually made in the form of a declaration in an affidavit, but the court may also hear oral evidence.
52 See eg Smit v Smit 1978 (2) SA 720 (W); Nienaber v Nienaber 1980 (2) SA 803 (O); Andrade v Andrade 1982
(4) SA 854 (O); Grauman v Grauman 1984 (3) SA 477 (W); Micklem v Micklem 1988 (3) SA 259 (C); Visser v
Visser 1992 (4) SA 530 (SEC). The courts punish prolixity by striking the matter off the roll (see eg Visser v
Visser; Patmore v Patmore 1997 (4) SA 785 (W)), making a costs award against the party whose papers are pro-
lix and contain unnecessary details, or ruling that the practitioners who drafted and submitted the papers
cannot claim costs from their client (see eg Visser v Visser; Patmore v Patmore; Du Preez v Du Preez 2009 (6) SA
28 (T).
53 FN v MN [2014] JOL 32412 (GJ).
54 See eg Chamani v Chamani 1979 (4) SA 804 (W).
55 See ch 11 above.
56 1985 (2) SA 351 (SE).
57 1990 (2) SA 77 (W).
58 2009 (5) SA 223 (O).
200 South African Family Law

of whether the applicant is making property claims against the other spouse is crucial in
respect of an application for a contribution towards costs. In view of the decision of the
59
Supreme Court of Appeal in EH v SH that the fact that a spouse who is claiming post-divorce
maintenance is living with another person is not, on its own, a reason for dismissing the
claim, a claim for interim maintenance should no longer be rejected solely because the
60
applicant is cohabiting with another person.
An applicant who claims a contribution towards costs is entitled to a contribution only if he
or she has a prima facie case or a bona fide defence in respect of an issue concerning parental
responsibilities and rights, maintenance and/or the spouses’ property rights on divorce which
he or she is unable to litigate without a contribution towards costs.61 If an application for a
contribution towards costs succeeds, the applicant is entitled to a contribution which enables
him or her to litigate on a scale which is commensurate with the respondent’s means as well
as the scale on which the respondent is litigating and intends to litigate.62 The contribution
sought need not be limited to costs on a party and party scale (which relates mainly to the
legal representative’s disbursements and costs), but can also include part of the reasonable
fees of the applicant’s legal representative.63
64
In Greenspan v Greenspan the court held that it cannot make an order that interim mainte-
65
nance must be paid by way of a lump sum. However, using the analogy of Oshry v Feldman
where the Supreme Court of Appeal explained why a lump-sum payment can be made in
respect of a claim for maintenance from a deceased estate, it is submitted that the court may
also award interim maintenance by way of a lump-sum.
Although the issue has not been finally settled, it seems that a spouse’s interim mainte-
nance may be calculated with reference to shared expenses in respect of adult dependent
66
children.

15.4 A final order for costs

Section 10 of the Divorce Act provides that the court is not bound to make an order for costs
in favour of the successful party in a divorce. Having regard to factors such as the parties’
means and their conduct in so far as it may be relevant, the court may make any order it
considers just. This includes ordering that the costs of the proceedings be apportioned
between the parties.67

________________________

59 2012 (4) SA 164 (SCA). On EH v SH, see further ch 13 above.

60 See further Catto in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 542.
61 Van Niekerk A Practical Guide to Patrimonial Litigation in Divorce Actions par 6.3.1.
62 See eg Glazer v Glazer 1959 (3) SA 928 (W); Dodo v Dodo 1990 (2) SA 77 (W); Nicholson v Nicholson 1998 (1)
SA 48 (W); Cary v Cary [1999] 2 All SA 71 (C), 1998 (8) BCLR 877 (C), 1999 (3) SA 615 (C); Senior v Senior
1999 (4) SA 955 (W); Greenspan v Greenspan 2000 (2) SA 283 (C); Petty v Petty [2002] 2 All SA 193 (T).
63 Nicholson v Nicholson 1998 (1) SA 48 (W); Senior v Senior 1999 (4) SA 955 (W); Petty v Petty [2002] 2 All SA
193 (T). On rule 43 of the Uniform Rules of Court and rule 58 of the Rules of the Magistrates’ Courts, see
further Catto in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 539–546; De Jong and Heaton
in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 143–145; Hahlo, 5th edn, 423–436; Schäfer
in Clark (ed) Family Law Service par F52; Van Niekerk A Practical Guide to Patrimonial Litigation in Divorce Ac-
tions ch 6; Van Zyl Handbook of the South African Law of Maintenance 53–54; Van Schalkwyk 2000 De Jure 396.
64 2000 (2) SA 283 (C).
65 [2011] 1 All SA 124 (SCA), 2010 (6) SA 19 (SCA), Heaton and Kruger Casebook on Family Law case [40]. On
this case, see further ch 10 above.
66 See eg Butcher v Butcher 2009 (2) SA 421 (C), Heaton and Kruger Casebook on Family Law case [62]; JG v CG
2012 (3) SA 103 (GSJ), Heaton and Kruger Casebook on Family Law case [63]. See also De Jong and Heaton
in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 144.
67 See Hahlo, 5th edn, 424 et seq for a comprehensive discussion of this section. See also Maas v Maas 1993 (3)
SA 885 (O). On interim and final costs awards in matrimonial proceedings, see further Catto in Heaton
(ed) Law of Divorce and Dissolution of Life Partnerships 569–571.
 Chapter 15: Miscellaneous matters regarding divorce 201

15.5 Limitation on the publication of particulars of a divorce

In terms of section 12 of the Divorce Act, only the names of the parties to divorce proceed-
ings, the fact that the divorce was pending and the order of the court could be published. In
Johncom Media Investments Limited v M 68 the Constitutional Court held that this limitation on
the publication of particulars of a divorce limited the right to freedom of expression,69 not
only of the media, but also of the public, as it deprived the public of the right to receive infor-
mation. Although the purpose of the limitation was legitimate, namely to protect the privacy
and dignity70 of the divorcing parties and their children, the chosen method of protection was
over-broad and was also not particularly efficient in achieving its purpose, since it permitted
publication of the identities of the parties. The court held that the purpose of section 12 could
be better achieved by prohibiting the publication of particulars which identify the parties and
their children. It concluded that the limitation of the right to freedom of expression could
not be justified, and declared section 12 unconstitutional and invalid. The court further pro-
hibited the publication of the identity of any party or child in any divorce proceedings before
any court, as well as the publication of any information which may reveal the identity of a
party or child, unless the court authorises publication. The Constitutional Court specified
that court authorisation of publication may be granted in exceptional circumstances only.

15.6 The abolition of orders for judicial separation

As is indicated in chapter 9 above, pre-1979 divorce law empowered the court to grant an
order for judicial separation. Such an order meant that the marriage continued to exist but
that the spouses were no longer bound to live together. Naturally, neither spouse could enter
into another marriage. Section 14 of the Divorce Act abolished the court’s power to issue
orders for judicial separation.

________________________

68 2009 (8) BCLR 751 (CC), 2009 (4) SA 7 (CC). For criticism of the decision, see Albertus 2011 PELJ 227–
230.
69 S 16 of the Constitution.
70 Ss 10 and 14 of the Constitution.
 PART

2
CIVIL UNIONS
 16
CIVIL UNIONS

16.1 Introduction
Civil unions have been recognised since 30 November 2006, when the Civil Union Act 17 of
2006 came into operation.1 The Act is the legislator’s response to the decision of the Constitu-
tional Court in Minister of Home Affairs v Fourie (Doctors for Life International, Amici Curiae); Les-
bian and Gay Equality Project v Minister of Home Affairs,2 in which the common-law definition of
marriage and the marriage formula contained in the Marriage Act 25 of 1961 were declared
unconstitutional to the extent that they excluded same-sex couples from the status, benefits
and responsibilities accorded to heterosexual couples. The court suspended the declaration
of unconstitutionality until 1 December 2006 to enable Parliament to correct the defects.
In terms of section 1 of the Civil Union Act, a civil union is the monogamous, voluntary
union of two persons who are at least 18 years of age, which is solemnised and registered in
accordance with the procedures prescribed by the Act. The term “civil union” includes a
marriage and a civil partnership concluded in terms of the Act.3 It is entirely up to the civil
union partners whether their civil union takes the form of a marriage or a civil partnership.4
Regardless of whether they call their civil union a marriage or a civil partnership, the require-
ments for and consequences of the civil union are exactly the same.5 Apart from the fact that
a civil union may be concluded by parties of the same or the opposite sex, the requirements
for and consequences of a civil union are in most respects identical to those of civil marriages,
as is explained below.6

16.2 The legal requirements for a civil union

16.2.1 General
(a) Capacity to act
Because a civil union, like a civil marriage,7 is based on agreement, both parties must have
capacity to act in order to be able to enter into a valid civil union. With the exception of the
________________________

1 S 16 of the Civil Union Act 17 of 2006.

2 2006 (1) SA 524 (CC), 2006 (3) BCLR 355 (CC).
3 S 2(a).
4 S 11(1).
5 S 13. For explanations of why a particular couple might prefer one or the other label for their civil union,
see Barratt (ed) Persons and the Family 233; De Vos Bill of Rights Compendium par 3J41; Sinclair in Atkin (ed)
2008 International Survey of Family Law 404; Skelton and Carnelley (eds) Family Law 171; Bilchitz and Judge
2007 SAJHR 484–485; De Vos 2007 SAJHR 461–462, 2008 Utrecht Law Review 170; Bakker 2009 Journal for
Juridical Science 7–8; Smith and Robinson 2010 PELJ 37.
6 The Act has been criticised for reinforcing the primacy of the civil marriage, extending protection only to
those who are prepared to adopt a family relationship model which deviates relatively little from the con-
ventional civil marriage model, and compelling civil union partners to accept all the consequences of the
traditional civil marriage: see eg Sinclair in Atkin (ed) 2008 International Survey of Family Law 404–406; Bont-
huys 2007 SAJHR 526; De Vos and Barnard 2007 SALJ 821; Bakker 2009 Journal for Juridical Science 8, 15–17.
7 See ch 3 above.

205
206 South African Family Law

position of minors, the rules that are set out in chapter 3 above regarding the capacity to act
in respect of a civil marriage apply equally to the capacity to enter into a civil union.
In terms of the definition of a “civil union” in section 1 of the Civil Union Act, only persons
who have already reached the age of 18 years may enter into a civil union. Thus, a minor can-
not validly enter into a civil union even if he or she is assisted by his or her parent or legal
guardian.8 Unlike the Marriage Act and the Recognition of Customary Marriages Act 120 of
1998, which allow a minor to enter into a civil or customary marriage provided that he or she
obtains the consent of certain persons or institutions,9 the Civil Union Act does not provide
for any exception to the rule that a minor may not enter into a civil union. Excluding minors
from a civil union while allowing them to enter into a civil or customary marriage violates the
equality clause of the Constitution,10 for it denies minors the opportunity to formalise their
relationship in a particular way, namely through a civil union. Furthermore, as a civil union is
the only means by which a same-sex couple can obtain full legal recognition of their relation-
ship, the exclusion of minors from the ambit of the Act violates not only the equality clause
but also same-sex minors’ right to dignity and flies in the face of the decision in Minister of
Home Affairs v Fourie (Doctors for Life International, Amici Curiae); Lesbian and Gay Equality Project
v Minister of Home Affairs 11 as it denies same-sex minors the opportunity to acquire the status,
benefits and responsibilities which opposite sex minors can acquire.12
(b) Agreement
When concluding a civil union, both parties must have the intention to enter into a civil union
with one another. During the ceremony itself, the marriage officer must expressly ask each
party whether he or she accepts the other party as spouse/civil partner, and both parties must
answer in the affirmative. The civil union may not be solemnised if either party replies in the
negative.13
Problems in connection with agreement arise when both parties declare their agreement at
the ceremony, but it subsequently transpires that genuine agreement was absent, or that there
was a defect regarding agreement, for example, because the parties laboured under a ma-
terial mistake or one of them gave their agreement because of misrepresentation, duress or
undue influence. The same rules which apply to agreement in respect of a civil marriage14
apply to agreement in respect of a civil union.
(c) Lawfulness
Like a civil marriage, and unlike a customary marriage, a civil union is monogamous. Neither
party to a civil union may be a party to an existing civil union, civil marriage or customary
________________________

8 See also Barratt (ed) Persons and the Family 63; Heaton Persons 106; Schäfer in Clark (ed) Family Law Service
par R41; Van Schalkwyk 2007 De Jure 168, 172. S 17 of the Children’s Act 38 of 2005 lowered the age of
majority from 21 to 18 years of age as from 1 July 2007. Sinclair in Atkin (ed) 2008 International Survey of
Family Law 408 raises the interesting question of whether persons over the age of 18 but below 21 who en-
tered into a civil union between 30 Nov 2006 and 1 July 2007 needed parental consent to do so. As s 1 of
the Civil Union Act restricts a civil union to persons over the age of 18 years and the Act does not deal with
parental consent at all, she states that the Act creates the impression that parental consent was not re-
quired.
9 See chs 3 above and 17 below.
10 S 9 of the Constitution of the Republic of South Africa, 1996.
11 2006 (1) SA 524 (CC), 2006 (3) BCLR 355 (CC).
12 On the constitutional arguments regarding the position of same-sex minors, see also Heaton in Gerber and
Sifris (eds) Current Trends in the Regulation of Same-Sex Relationships 112; Sinclair in Atkin (ed) 2008 Inter-
national Survey of Family Law 408; Van Schalkwyk 2007 De Jure 168; De Ru 2010 THRHR 561–563. In view of
the adverse consequences of child marriages, a more suitable solution to the current unconstitutional viola-
tion of the equality clause and the right to dignity might be to increase the minimum marriageable age in
respect of civil marriages and customary marriages, rather than to amend the Civil Union Act to permit
minors to enter into a civil union.
13 S 11(2).
14 Those rules are discussed in ch 3 above.
 Chapter 16: Civil unions 207

marriage at the time when he or she enters into the civil union.15 If either party has previously
been a party to a civil union or a civil or customary marriage, the civil union may not be
solemnised until the marriage officer has been provided with a certified copy of the divorce
order or of the death certificate of the party’s deceased spouse or civil union partner.16
A civil union may be concluded by parties of the same or the opposite sex.17 Apart from this
exception, a civil union may only be registered by persons who would be able to enter into a
civil or customary marriage.18 Thus, for example, an adoptive parent may not enter into a civil
union with his or her adopted child.19 Nor may persons who are within the prohibited degrees
of relationship for purposes of a civil or customary marriage enter into a civil union with each
other.20
The prohibited degrees of relationship in respect of civil and customary marriages largely
correspond. However, in some traditional (that is, tribal) groups the prohibited relationships
for the purposes of customary marriage extend to more relatives than is the case in respect of
a civil marriage. Furthermore, there are differences between the rules of various traditional
communities regarding which relatives fall within the prohibited degrees of relationship.21 On
a literal and strict interpretation, the provision in the Civil Union Act means that persons who
would have been permitted to enter into a civil marriage but not a customary marriage may
not enter into a civil union, regardless of their race and regardless of whether they belong to
any traditional community.22 This interpretation leads to illogical and absurd results. How, for
example, could one logically justify imposing a rule that applies to the Pedi people on urban
white, coloured or Asian people who have never had any relationship with the Pedi tribe?
Moreover, how would it be determined which traditional community’s rules are to be applied
to people who are not members of any traditional community? As legislation should be inter-
preted in a manner which avoids absurd results,23 it is submitted that when there are differ-
ences between the prohibited degrees of relationship in respect of customary and civil
marriages, the rules of customary law should be applied only to people who are subject to
customary law.

16.2.2 Prescribed formalities

(a) Marriage officers
Broadly speaking, the solemnisation and registration of a civil union take place in the same
way as the solemnisation and registration of a civil marriage. Thus, a civil union may only be
solemnised by a marriage officer. Anyone who purports to solemnise a civil union without
having the necessary authority to do so or an authorised marriage officer who solemnises a
prohibited civil union, is guilty of an offence.24 Subject to the exceptions provided for by the
Civil Union Act, a marriage officer has all the powers, responsibilities and duties which the
Marriage Act confers on marriage officers.25

________________________

15 S 8(1) and (3) of the Civil Union Act; see also s 3(2) of the Recognition of Customary Marriages Act.
16 S 8(4) and (5) of the Civil Union Act.
17 Ss 1 and 8(6) of the Civil Union Act.
18 S 8(6).
19 On the prohibition of a civil marriage between an adopted child and his or her parent, see ch 3 above and
on the same prohibition in respect of customary marriages, see ch 17 below.
20 Bilchitz and Judge 2007 SAJHR 492.
21 See eg Jansen in Rautenbach et al Introduction to Legal Pluralism in South Africa 55; Olivier Die Privaatreg van
die Suid-Afrikaanse Bantoetaalsprekendes 11–13; Olivier et al LAWSA Indigenous Law par 9; Seymour 123–125;
South African Law Commission Report on Customary Marriages Project 90 par 5.3.1.
22 But see Van Schalkwyk 2007 De Jure 172 who disapproves of the view that s 8(6) means that prospective civil
union partners must meet the requirements regarding civil and customary marriages. On whether custom-
ary marriages are reserved for black persons, see ch 17 fn 1 below.
23 See eg Devenish Interpretation of Statutes 177–178; Du Plessis 93–94, 103–105; Steyn 123–124.
24 S 14(1).
25 S 4(2).
208 South African Family Law

All persons who are ex officio marriage officers in terms of the Marriage Act and all officers
in the public, diplomatic or consular service who have been designated as marriage officers
under the Marriage Act qualify as marriage officers for purposes of the Civil Union Act.26
Thus, all secular marriage officers may solemnise civil marriages and civil unions, and their
appointment as marriage officers for such marriages and unions is regulated by the same
rules. However, the position as regards the appointment of religious marriage officers for pur-
poses of solemnising civil unions differs from that which applies in respect of civil marriages.
A religious denomination or organisation that wants to solemnise civil unions must apply in
writing to the Minister of Home Affairs27 for approval to do so.28 If the Minister grants the
approval, a minister of religion or a person holding a responsible position in the approved
denomination or organisation may apply to be designated as a marriage officer for purposes
of solemnising civil unions.29 The minister or person holding a responsible position may not
be appointed as a marriage officer for purposes of solemnising civil unions until the Minister
of Home Affairs has approved the denomination or organisation as a whole.30 Therefore, a
dual process applies in the case of religious officers. If the subsequent request by the religious
officer is granted, he or she is a marriage officer for purposes of solemnising civil unions for
as long as he or she is a minister or occupies the responsible position.31
Any secular marriage officer (that is, a marriage officer other than a religious marriage
officer) may inform the Minister of Home Affairs in writing that he or she objects on the
ground of conscience, religion and belief to solemnising a civil union between persons of the
same sex. He or she will then not be compelled to solemnise any same-sex civil union.32 Afford-
ing secular marriage officers the option to refuse to solemnise a same-sex civil union violates
the equality clause,33 as it curtails same-sex couples’ right to enter into a civil union as freely as
their heterosexual counterparts can. It also violates same-sex couples’ right to dignity,34 and
________________________

26 S 2(1) and (2) of the Marriage Act, read with the definition of “marriage officer” in s 1 of the Civil Union Act.
27 See the definition of “Minister” in s 1 of the Civil Union Act.
28 S 5(1). This subsection refers only to “marriages” and not to “civil partnerships” or the collective term “civil
unions”. The same applies to subsecs 5(2), (4) and (6). The implication of using only the word “marriages”
is that civil partnerships are not covered by these subsections. There is no rational basis for restricting the
capacity of religious marriage officers to solemnising marriages only. As none of the other sections of the
Act draws a distinction between solemnisation of civil partnerships and marriages under the Act, it seems
that the use of only the word “marriages” is due to a drafting error. The exclusive reference to “marriages”
creates a differentiation between the solemnisation of marriages and civil partnerships which infringes the
right to equality (s 9 of the Constitution) of religious marriage officers who wish to solemnise civil partner-
ships. The differentiation further violates the right to equality of persons who want to have their civil part-
nerships solemnised by a religious marriage officer, as it creates inequality before the law and unequal
protection and benefit of the law (s 9(1) of the Constitution). In the case of couples whose religion, con-
science and/or belief dictates that they should have their civil partnership solemnised by a religious mar-
riage officer, the differentiation also constitutes unfair discrimination on the grounds of religion,
conscience and belief (s 9(3) of the Constitution). There is no discernable justification for these violations
of the right to equality.
29 S 5(4). On the exclusive reference to “marriages” in this subsection, see the previous footnote and Schäfer
in Clark (ed) Family Law Service par R38.
30 There is thus a dual process for the appointment of religious marriage officers. As a minister of religion or
person holding a responsible position in a religious denomination or organisation cannot obtain a designa-
tion as marriage officer for purposes of solemnising a civil union unless his or her denomination or organ-
isation has already obtained approval, a maverick minister or person holding a responsible position in a
religious denomination or organisation which disapproves of (same-sex) civil unions cannot obtain the au-
thority to officiate at such civil unions. On this issue, see further Skelton and Carnelley (eds) Family Law
173; Bilchitz and Judge 2007 SAJHR 493–495; MacDougall, Bonthuys, Norrie and Van den Brink 2012 Ca-
nadian Journal of Human Rights 141.
31 S 5(4).
32 S 6. Govender 2008 Obiter 15 cogently points out that if a secular marriage officer is permitted to refuse to
solemnise a same-sex civil union, a magistrate should equally be allowed to recuse himself or herself from
an application for an adoption of a child by a same-sex couple.
33 S 9 of the Constitution.
34 S 10 of the Constitution.
 Chapter 16: Civil unions 209

may well be unconstitutional.35 Furthermore, it is unclear why the legislator thought that only
secular marriage officers should be afforded the liberty of refusing to solemnise same-sex civil
unions. Presumably the differentiation between secular and religious marriage officers was
based on the assumption that religious denominations or organisations which object to same-
sex unions would not apply to be designated as institutions which may solemnise civil
36
unions. This assumption loses sight of the fact that heterosexual persons are also allowed to
enter into a civil union. A religious denomination or organisation that objects to same-sex
civil unions might want to solemnise heterosexual civil unions while opting out of solemnis-
ing same-sex unions, but section 6 does not permit this, as it seems to provide for an all-or-
nothing approach to solemnisation of civil unions in so far as religious denominations or
organisations are concerned.
(b) Formalities preceding the civil union ceremony
As is the case in respect of a civil marriage, anyone who wishes to raise an objection to an in-
tended civil union must lodge a written objection with the marriage officer who is to solem-
nise the civil union.37 The marriage officer must enquire into the grounds on which the objec-
tion is based and may only solemnise the civil union if he or she is satisfied that there is no
lawful impediment to it.38
Each party must furnish the marriage officer with his or her identity document or the pre-
scribed affidavit. If either party fails to do so, the marriage officer may not solemnise the civil
union.39
Prior to the solemnisation of the civil union, the marriage officer must ask the parties
whether their civil union should be known as a marriage or a civil partnership.40 The prospect-
ive civil union partners must further individually and in writing declare their willingness to
enter into the civil union with one another and must sign the prescribed document signifying
their willingness in the presence of two witnesses.41 The marriage officer must then solemnise
the civil union using the term the parties chose, that is, “marriage” or “civil partnership”.42
(c) Formalities during the civil union ceremony
A civil union must take place in the presence of the parties themselves and at least two wit-
nesses.43 Entering into a civil union by proxy is not allowed, as the Civil Union Act expressly
prohibits a representative from entering into a civil union on behalf of somebody else.44
A civil union may be solemnised at any time and on any day of the week, but a marriage
officer is not obliged to solemnise a civil union before 8:00 or after 16:00.45 The civil union
must be solemnised and registered in a public office or private dwelling, with open doors, or

________________________

35 On the possible unconstitutionality of the accommodation of conscientious objections under the Act, see
De Vos Bill of Rights Compendium par 3J41; Heaton in Gerber and Sifris (eds) Current Trends in the Regulation
of Same-Sex Relationships 113; Schäfer in Clark (ed) Family Law Service par R39; Sinclair in Atkin (ed) 2008
International Survey of Family Law 404; Bilchitz and Judge 2007 SAJHR 490–492, 493–495; De Vos 2007 SAJHR
462–463; Bonthuys 2008 SALJ 473; De Vos 2008 Utrecht Law Review 171–173; Govender 2008 Obiter 15; Bak-
ker 2009 Journal for Juridical Science 4; Ntlama 2010 PELJ 204–205; De Ru 2010 THRHR 555–560; MacDou-
gall, Bonthuys, Norrie and Van den Brink 2012 Canadian Journal of Human Rights 141–142; Kruuse 2014
International Journal of Law, Policy and the Family 150.
36 See also MacDougall, Bonthuys, Norrie and Van den Brink 2012 Canadian Journal of Human Rights 141.
37 S 9(1).
38 S 9(2) and (3).
39 S 7.
40 S 11(1).
41 S 12(1).
42 S 11(1).
43 S 10(2).
44 S 10(3).
45 S 10(1).
210 South African Family Law

on the premises of such an office or dwelling.46 It may be solemnised elsewhere, however, if

either of the parties cannot be present at any of the above-mentioned places because of a
serious or longstanding illness or serious bodily injury.47
In solemnising the civil union, the marriage officer must put the following question to each
of the parties separately:
Do you, AB, declare that as far as you know there is no lawful impediment to your proposed
marriage/civil partnership with CD here present, and that you call all here present to wit-
ness that you take CD as your lawful spouse/civil partner?
Each party must reply in the affirmative. If either party does not reply in the affirmative, the
solemnisation of the civil union may not proceed.48 If the parties do reply in the affirmative,
they must give each other the right hand. The marriage officer then declares that the parties
have been lawfully joined in a marriage/civil partnership.49 It is at this moment that the civil
union legally comes into existence.50 The marriage officer and two witnesses must sign the
civil union register to certify that the above-mentioned declaration was made in their pres-
ence.51 If there is a bona fide error, omission or oversight with regard to the question, dec-
laration or giving of the right hand or if a physical disability renders compliance with these
provisions impossible, the civil union is nevertheless valid if it was in every other respect sol-
emnised in accordance with the provisions of the Act.52
(d) Registration of the civil union
A marriage officer who solemnises a civil union must keep a record of all the civil unions he
or she solemnises53 and must issue each couple with a registration certificate which states that
they have entered into a marriage/civil partnership under the Civil Union Act.54 A duly
signed registration certificate is prima facie proof of the existence of the civil union.55
The marriage officer must send the civil union register to a regional or district represen-
tative of the Department of Home Affairs, who then enters the particulars of the civil union in
the records kept in terms of the Identification Act 68 of 1997.56

16.3 Consequences of a civil union

16.3.1 General
Subject to the changes which are required by the context, the consequences of a civil union
correspond to those of a civil marriage.57 Furthermore, except in so far as the Marriage Act
________________________

46 S 10(2). But see Van Schalkwyk 2007 De Jure 170, who argues that the premises the legislator had in mind
might be a church or other building used for religious services. He submits that since s 5(1) and (2) per-
mits the appointment of religious marriage officers, the omission of a reference to a church or other build-
ing used for religious services in s 10(2) might be due to a legislative oversight. However, he also states that
the intended premises might indeed only be the premises of a public office or private dwelling, as the legis-
lator might simply have intended to remove the type of problem which arose for decision in Ex parte Dow
1987 (3) SA 829 (D). In that case, the parties had entered into a civil marriage in the garden of a dwelling
despite the requirement in s 29(2) of the Marriage Act that the marriage must be solemnised in a church
or other building used for religious services or in a public office or private dwelling with open doors. On Ex
parte Dow, see further ch 3 above.
47 S 10(2).
48 S 11(2).
49 Ibid.
50 See also Van Schalkwyk 2007 De Jure 171.
51 S 12(2).
52 S 11(3).
53 S 12(5).
54 S 12(3).
55 S 12(4).
56 S 12(6) and (7) of the Civil Union Act.
57 S 13(1). The fact that a civil union has, with the necessary contextual adaptations, the same consequences
as a marriage under the Marriage Act (ie, a civil marriage) does not mean that a civil union amounts to a
civil marriage. This is so even if the civil union takes the form of a “marriage”. Civil marriage is governed by
continued
 Chapter 16: Civil unions 211

and the Recognition of Customary Marriages Act are concerned, any reference to “marriage”
is equated with “civil union” and any reference to “husband”, “wife” or “spouse” with “civil
union partner”.58 Therefore, the invariable consequences of a civil union correspond to those
of a civil marriage, civil union partners have the same options as regards the proprietary con-
sequences of their union as spouses in a civil marriage have, and a civil union is dissolved in
exactly the same way as a civil marriage.

16.3.2 Invariable consequences

The invariable consequences of a civil marriage are discussed in chapter 5 above. One of
those consequences is that a civil marriage is monogamous. The same rule applies to a civil
union. Thus, neither partner may enter into another civil union or a civil or customary marriage
during the subsistence of the civil union.59 Using the position which applies in respect of civil
marriages as the basis, it is submitted that a civil union, civil marriage or customary marriage
which is concluded in violation of the above-mentioned prohibition is void.
Another invariable consequence of a civil marriage is that the pater est quem nuptiae demon-
strant presumption (that is, the marriage indicates who the father is) operates in respect of
any child the wife gives birth to. In terms of this presumption, a child born to a married
woman is presumed to have been fathered by her husband.60 Section 13(1) of the Civil Union
Act requires that the legal consequences of a civil marriage must be applied to a civil union
“with such changes as may be required by the context”. Application of the pater est quem nuptiae
demonstrant presumption in a civil union between heterosexual persons is easy, as there is a
male civil union partner who can be presumed to be the father of the child to which the
female civil union partner gives birth. However, it is unclear how the presumption can be
adapted to fit the circumstances of a same-sex civil union. The presumption specifically refers
to a father, while there are two male or two female parties (that is, two “fathers” or two
“mothers”) in a same-sex civil union. Furthermore, in the case of a same-sex civil union, pro-
creation necessarily involves artificial fertilisation, and in the case of a male couple it neces-
sarily involves surrogate motherhood too (unless, of course, the child is conceived through an
adulterous relationship with a third party of the opposite sex). As the rules regarding artificial
fertilisation and surrogate motherhood61 usually determine who the child’s parents are in the
case of a same-sex civil union, application of an adapted version of the pater est quem nuptiae
demonstrant presumption in respect of such civil unions is probably not viable.62
The position in respect of a civil union partner’s post-civil-union surname also differs from
that which applies in respect of spouses in a civil marriage. Section 26(1) of the Births and
Deaths Registration Act 51 of 1992 permits “a woman after her marriage” to assume the
surname of “the man with whom she concluded such marriage or after having assumed his
surname to resume a surname she bore at any prior time. It also permits “a married or
divorced woman or a widow” to resume a surname which she bore at any prior time, and “a
woman, whether married or divorced, or a widow” to add to the surname she assumed after
getting married, any surname which she bore at any prior time. Because section 13(2) of the
63
Civil Union Act provides that any reference to “husband” or “wife” in any Act other than the

________________________

the common law as amended by the Marriage Act and thus remains the preserve of heterosexual couples,
while a marriage (or a civil partnership) which is concluded under the Civil Union Act is a creature of the
particular statute which encompasses both heterosexual and same-sex couples in its ambit.
58 S 13(2).
59 S 8(1) and (2) of the Civil Union Act; see also s 10(4) of the Recognition of Customary Marriages Act.
60 Grotius 1.12.3; Voet 1.6.6. See also Fitzgerald v Green 1911 EDL 432; Atkin v Estate Bowmer 1913 CPD 505;
Williams v Williams 1925 TPD 538; Van Lutterveld v Engels 1959 (2) SA 699 (A).
61 For a discussion of those rules, see Heaton Persons 50–53.
62 See also Heaton Persons 56; Heaton in Gerber and Sifris (eds) Current Trends in the Regulation of Same-Sex
Relationships 114–115; De Ru 2013 Fundamina 247.
63 Obviously, the references in the Births and Marriages Registration Act to “a woman after her marriage”, “a
married … woman”, etc are to be equated with the word “wife” and the reference to “the man with whom
continued
212 South African Family Law

Marriage Act or the Recognition of Customary Marriages Act includes “civil union partner”
and section 13(1) of the Civil Union Act provides that the legal consequences of a civil mar-
riage apply, “with such changes as may be required by the context”, to a civil union, the
dispensation in section 26(1) of the Births and Deaths Registration Act seems to apply to both
parties to a civil union. In a civil marriage, in contrast, the dispensation regarding surname
applies only to wives. It is submitted that this differentiation between the position of civil
union partners and spouses in a civil marriage is unconstitutional as it constitutes unjustifia-
ble inequality.64
The matrimonial property system which applies to a civil union and the mechanisms for
changing the matrimonial property system are governed by the same rules which apply to civil
marriages. Those rules are set out in chapters 6 to 8 above. Thus, for example, if the civil
union partners do not enter into an antenuptial agreement, community of property operates
in their civil union and they have equal powers of administration in respect of the joint estate.
If they do enter into an antenuptial contract, the terms of the contract determine the propri-
etary consequences of their civil union. It is clear that the above-mentioned rules apply if
both civil union partners are domiciled in South Africa. Because our private international law
provides that the lex domicilii of the husband at the time of a couple’s marriage dictates their
matrimonial property system65 and section 13 of the Civil Union Act entails that this rule
applies to civil unions too, the rules regarding determination of a couple’s matrimonial
property system also apply if the civil union partners are of the opposite sex and the male
partner is domiciled in South Africa. A problem arises if the civil union partners are of the
same sex and one or both of them are not domiciled in South Africa. As there is no “hus-
band” in such a civil union, the rule regarding the husband’s lex domicilii being the determin-
ing factor fails to reveal the proprietary consequences of the couple’s civil union.66 This
failure unjustifiably limits the right to equality. It, inter alia, unfairly discriminates against
same-sex civil union partners on the ground of their sexual orientation, by leaving the pro-
prietary consequences of their civil union uncertain.67 As South African private international
law does not currently have a ready replacement for the rule regarding the husband’s lex
domicilii being the determining factor, the legislator should step in to enact a suitable and
constitutionally acceptable replacement for the rule.68

16.4 The dissolution of a civil union

Exactly the same rules which govern the dissolution of a civil marriage apply to the dissolu-
tion of a civil union.69 Those rules are discussed in chapters 9 to 15 above. It must be noted,
however, that, because of the provision in section 7(3) of the Divorce Act 70 of 1979 which
________________________

she concluded such marriage” is to be equated with “husband” for purposes of the Civil Union Act. See also
McConnachie 2010 SALJ 426–427.
64 See also ch 5 above. S 9 of the Constitution contains the equality clause and s 36 the limitation clause.
65 Frankel’s Estate v The Master 1950 (1) SA 220 (A).
66 On this point, see also Farlam JA’s minority judgment in Fourie v Minister of Home Affairs 2005 (3) BCLR 241
(SCA), 2005 (3) SA 429 (SCA) pars 124–125; AS v CS 2011 (2) SA 360 (WCC); Heaton in Gerber and Sifris
(eds) Current Trends in the Regulation of Same-Sex Relationships 114; Schäfer in Clark (ed) Family Law Service
par R48; Sinclair in Atkin (ed) 2008 International Survey of Family Law 408–409; Mamashela and Carnelley
2006 Obiter 385; Neels and Wethmar-Lemmer 2008 TSAR 588; De Ru 2010 THRHR 564; De Ru 2013 Fun-
damina 247. McConnachie 2010 SALJ 435 suggests that the civil union partners may choose which partner is
to be identified as the “husband”. He shows that this is an absurd and unworkable position: 435–436.
67 See also Heaton Persons 40.
68 Even in the case of heterosexual spouses in a civil or customary marriage and heterosexual civil union
partners, the rule is unconstitutional, as it amounts to unjustifiable unfair discrimination on the ground of
sex: see also Heaton Persons 40; Neels 1992 TSAR 336; Heaton and Schoeman 2000 THRHR 146; Schoeman
2004 TSAR 117–118, 140; McConnachie 2010 SALJ 436–438. For recommendations on a possible replace-
ment for the current rule, see Stoll and Visser 1989 De Jure 330; Schoeman 2001 TSAR 72; Schoeman 2004
TSAR 115; Schoeman 2004 Praxis des Internationales Privat- und Verfahrensrechts 65; Neels and Wethmar-
Lemmer 2008 TSAR 588–589; McConnachie 2010 SALJ 438–440.
69 S 13; see also AS v CS 2011 (2) SA 360 (WCC), Heaton and Kruger Casebook on Family Law case [64].
 Chapter 16: Civil unions 213

permits redistribution of assets only if the parties married before 1 November 1984 or
2 December 1988,70 redistribution of assets is not available to any divorcing civil union partner.

16.5 The constitutionality of the Civil Union Act

The possible unconstitutionality of specific provisions of the Civil Union Act is mentioned
above in this chapter. For present purposes, the focus falls on the constitutionality of the Act
as a whole. The main issue is whether the Act achieved what the Constitutional Court in Min-
ister of Home Affairs v Fourie (Doctors for Life International, Amici Curiae); Lesbian and Gay Equality
Project v Minister of Home Affairs 71 required the legislator to do, namely afford same-sex couples
the status, benefits and responsibilities accorded to opposite sex couples.72 Broadly speaking,
the Act confers the same right on heterosexual and same-sex couples to enter into a fully rec-
ognised relationship which may be called a marriage or a civil partnership.73 In this sense, the
Act therefore meets the requirement set out in Fourie. Most commentators therefore adopt
the view that the Act is a constitutionally acceptable vehicle for conferring full legal recogni-
tion on same-sex relationships.74
A complicating factor is that the Act is the only means available to same-sex couples who want
to obtain full legal recognition for their relationship, while heterosexual couples can acquire
such recognition by way of either a civil union or a civil marriage. Some authors are of the view
that this differentiation results in a separate but equal remedy in direct contravention of the
warning in Fourie that the concept of “separate but equal”, which historically “served as a
threadbare cloak for covering distaste for or repudiation by those in power of the group sub-
jected to segregation”,75 would be unconstitutional and that the legislator must “be as generous
and accepting towards same-sex couples as it is to heterosexual couples, both in terms of the
intangibles as well as the tangibles involved”.76 The authors suggest that this difficulty can be
overcome by repealing the Marriage Act.77 Another view is that instead of repealing it, the
Marriage Act should be amended to apply to heterosexual and same-sex couples alike. In
addition, the Civil Union Act should be repealed, because it unjustifiably violates the right to
equality because some of its provisions apply only to same-sex couples, confers a second-class
marital status on same-sex couples, and produces new forms of oppression and repudiation.78
________________________

70 On redistribution of assets upon divorce, see ch 12 above.

71 2006 (1) SA 524 (CC), 2006 (3) BCLR 355 (CC).
72 Pars 120, 158, 161, 162.
73 The provision enabling secular marriage officers to refuse to solemnise a same-sex civil union (see the dis-
cussion of s 6 above) could have deleterious implications for same-sex couples’ right to enter into a civil
union in that it might render exercising their right very difficult. The theoretically equal rights of same-sex
and heterosexual couples to enter into a civil union may therefore be scuppered by marriage officers.
74 See eg Sinclair in Atkin (ed) 2008 International Survey of Family Law 404, 498, 499; Bilchitz and Judge 2007
SAJHR 482, 483–484; De Vos 2007 SAJHR 463; De Vos and Barnard 2007 SALJ 820.
75 Par 150.
76 Par 153. The first draft of the Civil Union Bill would certainly have been a constitutionally untenable sep-
arate but equal measure, for it restricted same-sex couples to entering into a civil partnership which was
open only to them. On this point, see eg De Vos Bill of Rights Compendium par 3J41; Sinclair in Atkin (ed)
2008 International Survey of Family Law 403–404; Barnard 2007 SAJHR 516–517, 521–522; Bilchitz and Judge
2007 SAJHR 479–482; De Vos 2007 SAJHR 458–460; De Vos and Barnard 2007 SALJ 808–811, 819; De Vos
2008 Utrecht Law Review 167–169; Govender 2008 Obiter 17; De Ru 2013 Fundamina 243–244.
77 Bilchitz and Judge 2007 SAJHR 488, 489; De Vos and Barnard 2007 SALJ 821, 822; Bakker 2009 Journal for
Juridical Science 8.
78 The provisions which relate only to same-sex couples are s 6 and the exclusion of same-sex minors by the
definition of “civil union” in s 1. These provisions are discussed above in this chapter. On the arguments
regarding the constitutionality of the Civil Union Act and the continuing inability of same-sex couples to
enter into a civil marriage, see further Heaton in Gerber and Sifris (eds) Current Trends in the Regulation of
Same-Sex Relationships 114–115; Robinson in Atkin (ed) 2007 International Survey of Family Law 288; Sinclair
in Atkin (ed) 2008 International Survey of Family Law 403–405; Bilchitz and Judge 2007 SAJHR 487 et seq; Jivan
2007 Law, Democracy and Development 43; Wood-Bodley 2008 SALJ 485–486; Ntlama 2010 PELJ 197 et seq; De
Ru 2010 THRHR 564–567. On the issue of whether it is the Marriage Act or the Civil Union Act which
should be repealed, see also Smith and Robinson 2010 PELJ 47–68.
 PART

3
CUSTOMARY MARRIAGES
 17
CUSTOMARY MARRIAGES

17.1 Introduction
A customary marriage is a marriage which is concluded, not in terms of the common law and
the Marriage Act 25 of 1961 or a system of religious law, but in terms of customary law and the
Recognition of Customary Marriages Act 120 of 1998. “Customary law” refers to “the customs
and usages traditionally observed among the indigenous African peoples of South Africa and
which form part of the culture of those peoples”.1
Prior to the coming into operation of the Recognition of Customary Marriages Act on
15 November 2000, customary marriages were recognised only for limited purposes,2 because
they permit polygyny and are not solemnised in terms of the Marriage Act. Section 2 of the
Recognition of Customary Marriages Act conferred full legal recognition on monogamous
and de facto polygynous customary marriages regardless of when they were concluded.3 Many
of the requirements and consequences the Act imposes in respect of customary marriages are
the same as those which apply to civil marriages.4

17.2 The legal requirements for a customary marriage

17.2.1 Marriages entered into before the coming into operation of the Act
The legal requirements for a valid customary marriage depend on whether the marriage was
concluded before or after the coming into operation of the Act. A customary marriage con-
cluded before the coming into operation of the Act is valid only if it complies with the cus-
tomary-law requirements for a valid marriage.5
A distinction has to be drawn between KwaZulu-Natal and the rest of the country. As Zulu
customary law has been partly codified for KwaZulu-Natal, the codes on Zulu law are the
________________________

1 S 1 of the Recognition of Customary Marriages Act 120 of 1998. Dlamini 1999 Obiter 15 is of the view that
customary marriages are restricted to African persons. Jansen in Rautenbach et al Introduction to Legal Plural-
ism in South Africa 50 submits that they are not, but points out that people who do not follow a cultural life-
style where there are African traditional leaders and traditional community values and customs might find
it difficult to prove that they have entered into a customary marriage. See further Himonga and Nhlapo
(eds) African Customary Law 96–97. On whether the Act applies to Namas, Bushmen and Griquas, see
Maithufi and Bekker 2002 CILSA 196.
2 Eg, in terms of s 31 of the Black Laws Amendment Act 76 of 1963 a widow in a customary marriage could
claim damages for loss of support arising from her husband’s death, and the Births and Deaths Registration
Act 51 of 1992 deemed customary marriages to be valid marriages.
3 As the constitutionality of the recognition of customary marriages is no longer contentious, the arguments
in this regard are not considered in this book.
4 According to Himonga 2005 Acta Juridica 84 the nearly total substitution by the Act of the customary-law
consequences of a customary marriage with the consequences which apply in a civil marriage has created a
“common law African customary marriage”. Bakker 2009 Journal for Juridical Science 17 goes even further. He
states that customary marriages have been turned into civil marriages in which polygyny is permitted. See
also Bekker and Van Niekerk 2009 SA Public Law 214, who state that customary marriages have become civil
marriages in all but name.
5 S 2(1) of the Recognition of Customary Marriages Act.

217
218 South African Family Law

starting point in ascertaining the customary-law requirements for a valid customary marriage
in that province. For historical reasons two different codes, namely the KwaZulu Act on the
Code of Zulu Law 16 of 1985 and the Natal Code of Zulu Law,6 apply. In so far as customary
marriages are concerned the Codes are virtually identical. They require that the bride must
publicly declare to the official witness7 that the marriage is taking place of her own free will
and with her consent, and that if either future spouse is a minor, his or her father or legal
guardian must also consent to the marriage.8 The Codes further provide that certain family
members are not within the prohibited degrees of relationship for purposes of entering into a
customary marriage.9 Although the Codes do not expressly stipulate this as an “essential” for
marriage, lobolo (or bogadi, bohali, xuma, lumalo, thaka, ikhazi, magadi, emabheka, bridewealth) is
customarily delivered.10 In other words, the bridegroom or the head of his family gives prop-
erty to the head of the bride’s family in consideration of the marriage.
Uncodified systems of customary marriage law apply in the rest of the country. These sys-
tems differ from one another to varying degrees. The various systems are discussed in several
specialised works on customary law which, it must be conceded, do not in all respects reflect
current customary family law.11 Very briefly and as a broad generalisation, the requirements
that are set by most systems of customary law which apply outside KwaZulu-Natal seem to be
the following: Regardless of the spouses’ ages, both of them and the bride’s father or legal
guardian must consent to the marriage. If the bridegroom is a minor, his father, legal guardi-
an or family head must also consent to the marriage. The spouses must be over the age of
puberty and must not be within the prohibited degrees of relationship. The wife must be
handed over to her husband’s family and live with her husband. Lobolo is customarily deliv-
ered. Often, a ceremony takes place in celebration of the marriage.12

17.2.2 Marriages entered into after the coming into operation of the Act
(a) General requirements
A customary marriage that is concluded after the coming into operation of the Act is valid if
the bride and groom are over the age of 18 years, both of them consent to the marriage, and
the marriage is negotiated and entered into or celebrated in accordance with customary law.13

________________________

6 Proc R151 GG 10966 of 9 Oct 1987.

7 The official witness is a person who is appointed by a tribal chief to officiate as a witness at customary
marriages: s 1 of the Codes. The official witness must publicly ask the bride whether she is marrying the
bridegroom of her own free will and consent: s 42 of the Codes.
8 S 38(1) of the Codes.
9 S 37 of the Codes.
10 The Codes do, however, regulate delivery of lobolo by, eg, requiring the persons who contributed to the
lobolo publicly to declare the source(s) of the lobolo to the official witness; providing that lobolo can consist of
cattle or their equivalent in other stock, money or property; and stipulating the maximum lobolo which can
be demanded: see eg ss 43, 47, 51, 52 and ch 8 of the Codes.
11 On living versus official customary law, see fn 42 below.
12 Generally on the customary-law requirements for a valid marriage, see eg Mabena v Letsoalo 1998 (2) SA
1068 (T); Fanti v Boto 2008 (5) SA 405 (C); Ndlovu v Mokoena 2009 (5) SA 400 (GNP); Motsoatsoa v Roro
[2011] 2 All SA 324 (GSJ); Rasello v Chali In re: Chali v Rasello [2013] JOL 30965 (FB); Moropane v Southon
[2014] ZASCA 76 (29 May 2014); Barratt (ed) Persons and the Family 381–382; Himonga and Nhlapo (eds)
African Customary Law 98–102; Jansen in Rautenbach et al Introduction to Legal Pluralism in South Africa 50–53,
55–59; Kovacs, Ndashe and Williams in Claassens and Smythe (eds) Marriage, Land and Custom 282–286;
Mwambene in Clark (ed) Family Law Service pars G32–G39; Mwambene and Kruuse in Claassens and
Smythe (eds) Marriage, Land and Custom 305–310; Mofokeng 43–61, 63–67, 69–73; Olivier Die Privaatreg van
die Suid-Afrikaanse Bantoetaalsprekendes ch 4; Olivier et al LAWSA Indigenous Law pars 17–35; Seymour 105–
125; Sinclair assisted by Heaton 242–245; South African Law Commission Report on Customary Marriages Pro-
ject 90 ch 4; Curran and Bonthuys 2005 SAJHR 615–617; Ngema 2012 (2) Speculum Juris 30; Bakker 2013
Obiter 586–589; Nkosi Jan/Feb De Rebus 67.
13 S 3(1). On the purpose of the requirement that the marriage be negotiated and entered into or celebrated
in accordance with customary law, see Bakker 2013 Obiter 586–588.
 Chapter 17: Customary marriages 219
14
In MM v MN the Constitutional Court had to decide whether a husband may enter into
another customary marriage without his first wife’s consent. In this particular case, the parties
were married in terms of Xitsonga customary law. The majority of the court held that even
though the Act does not expressly require the first wife’s consent, Xitsonga customary law
does so. It arrived at this finding after examining evidence provided by experts, individuals in
polygynous marriages under Xitsonga customary law, traditional leaders, and an advisor to
traditional leaders. It concluded that when a VaTsonga man decides to enter into a further
customary marriage, he must inform his first wife. The first wife is expected to agree to the
marriage. If she withholds consent, attempts are made to persuade her. If she remains unper-
15
suaded, divorce may follow. The majority further held that the constitutional rights to
dignity and equality dictate that the first wife’s consent is required. If a further customary
marriage is entered into without the first wife’s knowledge or consent, her right to equality
with her husband is completely undermined because she is unable to consider or protect her
position as regards her personal life, her sexual and reproductive health, and the possible
negative proprietary consequences of the further marriage. Also, because of the highly per-
sonal and private nature of marriage, “it would be a blatant intrusion on the dignity of one
16
partner to introduce a new member to that union without obtaining that partner’s consent”.
The majority further held that the equal status and capacity that section 6 of the Act confers
on spouses includes the requirement that both of them consent to the marriage and that the
first wife consents to the future matrimonial property system that will operate in the polygy-
nous marriage. The majority concluded that the first wife’s consent is required for the hus-
band’s further customary marriage, and that the further marriage is invalid if this consent is
not obtained. The order of the majority specifically refers to Xitsonga law, but the statements
on equality and dignity strongly suggest that the court will arrive at the same conclusion in
respect of other South African systems of customary law that may not require the first wife’s
consent. Consequently, the implication of the judgment is that the consent of the first wife in
17
any customary marriage is required for her husband’s further customary marriage.
The Act expressly states that the forbidden degrees of relationship for purposes of a cus-
tomary marriage must be determined in accordance with customary law.18 Although the Act
does not require delivery of lobolo for the validity of a customary marriage, delivery of lobolo
continues because it is a requirement under most systems of customary law.19
(b) Additional requirements in respect of a minor’s customary marriage
Regardless of whether or not they are subject to customary law, the age of majority is 18 years
for all men and women.20 If either party to a customary marriage is a minor, the minor’s
parent(s) or legal guardian must consent to the marriage. If such consent cannot be obtained,
________________________

14 2013 (4) SA 415 (CC) (also reported as Mayelane v Ngwenyama (Women’s Legal Centre Trust and Others as
Amici Curiae) 2013 (8) BCLR 918 (CC)), Heaton and Kruger Casebook on Family Law case [65]. On the
judgments of the various courts in the case, see Himonga and Nhlapo (eds) African Customary Law 117–118,
141–144; Himonga and Pope in Claassens and Smythe (eds) Marriage, Land and Custom 318 et seq; Bekker
and Van Niekerk 2010 THRHR 679 et seq; Maithufi 2012 De Jure 405 et seq; Maithufi 2013 THRHR 688 et seq;
Maithufi 2013 De Jure 1078 et seq; Kruuse and Sloth-Nielsen 2014 PELJ 1709 et seq; Müller-Van der
Westhuizen LitNet Akademies (Regte) 4 March 2014, http://www.litnet.co.za/vonnisbespreking-die-
onsekerhede-aangaande-die-toepaslike-huweliksgoederebedelings-in-poli/ (accessed 22 June 2015); Spies
2015 Stell LR 156 et seq.
15 On the issue of whether it is really the wife’s consent that is required or whether she must simply be
informed of the prospective marriage, see Himonga and Pope in Claassens and Smythe (eds) Marriage,
Land and Custom 322–323; Kruuse and Sloth-Nielsen 2014 PELJ 1720–1722.
16 Par 74.
17 See also Himonga and Pope in Claassens and Smythe (eds) Marriage, Land and Custom 322–323; Heaton
2013 Annual Survey of South African Law 465; Maithufi 2013 De Jure 1087–1088. But see Mwambene and
Kruuse in Claassens and Smythe (eds) Marriage, Land and Custom 296.
18 S 3(6).
19 See above in this chapter.
20 S 9 of the Recognition of Customary Marriages Act, read with s 17 of the Children’s Act.
220 South African Family Law

section 25 of the Marriage Act applies.21 Thus, the minor may ask the presiding officer of the
Children’s Court to consent to the marriage.22 If a parent, legal guardian or presiding officer
withholds consent, the minor may approach the High Court for consent. The court will grant
consent if it is of the opinion that the refusal by the parent, legal guardian or presiding
officer is without adequate reason and contrary to the minor’s best interests.23 Unless the
High Court authorises the marriage, the minor must also obtain the written consent of the
Minister of Home Affairs or the person designated by the Minister. Such consent will be given
only if the marriage is desirable and in the parties’ interests.24 Ministerial consent does not
release the minor from the need to comply with all the other requirements for a valid cus-
tomary marriage, such as obtaining parental consent.25
If a minor enters into a customary marriage without the consent of his or her parent or
legal guardian, or the presiding officer, section 24A of the Marriage Act applies.26 This section
provides that the marriage is voidable at the instance of the minor or his or her parent or
legal guardian. The application to have the marriage set aside must be made by the parent or
legal guardian before the minor attains majority and within six weeks from the date on which
the parent or legal guardian becomes aware of the existence of the marriage, or by the minor
before he or she attains majority or within three months thereafter. The court may not
dissolve the marriage unless it is satisfied that dissolution is in the interests of the minor(s). If
the Minister’s consent to the customary marriage was not obtained, the Minister may ratify
the marriage if the marriage is desirable and in the parties’ interests and in all other respects
complies with the Recognition of Customary Marriages Act.27

17.3 Registration of the marriage

The spouses must register their customary marriage, but non-registration does not affect the
validity of the marriage.28 Registration of a customary marriage concluded before the coming
into operation of the Act had to occur by 31 December 2010.29 A customary marriage entered
into after the coming into operation of the Act must be registered within three months of the
wedding date or within such longer period as the Minister prescribes in the Government
Gazette.30
Either spouse may apply for registration and must furnish the necessary information to sat-
31
isfy the registering officer that the marriage exists. If the officer is satisfied that the spouses
entered into a valid customary marriage, he or she must issue a certificate of registration
32
bearing, inter alia, the parties’ identity, the date of their marriage, and any lobolo agreed to.

________________________

21 S 3(3) of the Recognition of Customary Marriages Act. On parental consent, see also s 18(3)(c) of the Chil-
dren’s Act. On the consent requirement in respect of a minor’s customary marriage, see further Van
Schalkwyk 2000 THRHR 483–486. On s 25(4) of the Marriage Act, see further ch 3 above.
22 S 25(1) of the Marriage Act.
23 S 25(4) of the Marriage Act.
24 S 3(4)(a) of the Recognition of Customary Marriages Act.
25 S 3(4)(b). The position corresponds to that of a girl below the age of 15 years or a boy below the age of 18
years who wants to enter into a civil marriage: see ch 3 above.
26 S 3(5) of the Recognition of Customary Marriages Act. On s 24A of the Marriage Act, see further ch 3 above.
27 S 3(4)(c) of the Recognition of Customary Marriages Act. The position is similar to that of a girl below the
age of 15 years or a boy below the age of 18 years who entered into a civil marriage without the Minister’s
consent: see ch 3 above.
28 S 4(9).
29 S 4(3)(a) originally limited the registration period to one year after the coming into operation of the Act,
but this period was extended by GN 1228 GG 22839 of 23 Nov 2001, GN R1391 GG 31735 of 24 Dec 2008
and GN R51 GG 32916 of 5 Feb 2010.
30 S 4(3)(b).
31 S 4(2).
32 S 4(4).
 Chapter 17: Customary marriages 221

The certificate is prima facie proof of the existence of the customary marriage and the other
33
particulars contained in it.
If neither spouse requests registration, any party who has “a sufficient interest in the mat-
34
ter” may request the registering officer to enquire into the existence of the marriage. If the
officer is satisfied that a valid customary marriage exists or existed, he or she must register the
35
marriage and issue a registration certificate. This provision enables a customary marriage to
be registered after the death of one or both of the spouses.
Finally, a court may, on application and after having investigated the matter, order the reg-
istration, cancellation of the registration, or rectification of the registration of any customary
36
marriage.

17.4 The patrimonial consequences of the marriage and control of

the matrimonial property
17.4.1 Introduction
The patrimonial consequences of a customary marriage depend on whether the marriage is
de facto monogamous or polygynous.

17.4.2 Monogamous customary marriages

As a result of the decision of the Constitutional Court in Gumede v President of the Republic of
37
South Africa, section 7(2) of the Recognition of Customary Marriages Act applies to every
monogamous customary marriage, regardless of the date on which the marriage was conclud-
ed. Before the decision in Gumede, section 7(2) applied to monogamous customary marriages
spouses concluded after the commencement of the Act, while section 7(1) applied to monog-
amous customary marriages concluded before the commencement of the Act. Section 7(1)
provided that customary law governed the patrimonial consequences of all customary mar-
riages concluded prior to the coming into operation of the Act. The effect of the application
of customary law to the spouses in Gumede was that the husband owned and controlled all
family property and the wife had no claim to family property. The Constitutional Court held
that depriving wives in some monogamous customary marriages of a claim to family property
because of the date on which they entered into their marriage constitutes unjustifiable unfair
discrimination on the ground of gender. The court declared section 7(1) unconstitutional
and invalid to the extent that it related to monogamous customary marriages. The court also
declared the inclusion of the words “entered into after the commencement of this Act” in
section 7(2) unconstitutional and invalid and excised them from the section. Consequently,
section 7(2) now applies to all monogamous customary marriages, while section 7(1) still

________________________

33 S 4(8); see also TM v NM 2014 (4) SA 575 (SCA). In the absence of a registration certificate, the existence
of the marriage can be proved by other means, although this may be a formidable task: De Koker 2001
TSAR 257. On the difficulties in having a customary marriage registered, see further De Souza in Claassens
and Smythe (eds) Marriage, Land and Custom 239; Kovacs, Ndashe and Williams in Claassens and Smythe
(eds) Marriage, Land and Custom 278–282; Mwambene and Kruuse in Claassens and Smythe (eds) Marriage,
Land and Custom 300–303.
34 S 4(5)(a). Meyer 2008 South African Deeds Journal 10 gives the following examples of who might qualify as a
party with a sufficient interest in the matter: a friend, relative or traditional leader; one of the people who
participated in the marriage negotiations between the spouses’ families; another wife of a husband who has
concluded a polygynous customary marriage; a person with an interest in communal land under the con-
trol of the husband; a business partner of one of the spouses; and a fellow trustee of a spouse. She submits
that it is up to the registering officer to determine whether a particular person is a party with a sufficient in-
terest.
35 S 4(5)(b).
36 S 4(7). For an example of a case in which the registration of a customary marriage was cancelled, see
Ndlovu v Mokoena 2009 (5) SA 400 (GNP); for an example of a case in which an action for cancellation was
dismissed, see Maluleke v Minister of Home Affairs Case 02/24921, 9 April 2008 (W) (unreported).
37 2009 (3) BCLR 24 (CC), 2009 (3) SA 152 (CC), Heaton and Kruger Casebook on Family Law case [66].
222 South African Family Law

applies to polygynous customary marriages concluded before the coming into operation of
the Act.
Section 7(2) provides that the matrimonial property system in a monogamous customary
marriage is determined by the same rules that apply to civil marriages. In other words, if the
spouses do not enter into an antenuptial contract, they are married in community of proper-
ty. If they do enter into an antenuptial contract, the provisions of the antenuptial contract
determine their matrimonial property system. Presumably, the accrual system applies to a
monogamous customary marriage that is out of community of property, unless the accrual
38
system is expressly excluded in the antenuptial contract. The Act further provides that if the
marriage is in community of property, sections 14 to 20 and section 24 of the Matrimonial
Property Act 88 of 1984 apply to the marriage.39 Thus, the rules that govern administration of
the joint estate, litigation by or against a spouse who is married in community of property,
damages paid or recovered by such a spouse, the spouse’s delictual liability, and the statutory
protective measures one spouse can employ against the other are exactly the same in civil and
customary marriages in community of property.40

17.4.3 Polygynous customary marriages

(a) Polygynous marriages entered into before the coming into operation of the Act
As indicated above, the decision in Gumede v President of the Republic of South Africa 41 entails that
section 7(1) of the Recognition of Customary Marriages Act still applies to polygynous cus-
tomary marriages which were concluded before the coming into operation of the Act. Conse-
quently, the patrimonial consequences of these marriages are still regulated by customary
law.42 Again only a brief, generalised summary of the relevant customary-law rules is given.
Generally speaking, each customary marriage results in the establishment of a separate
house with a specific rank. The rank of the house and wife is determined by the ranking sys-
tem adopted by the particular group. The predominant system is that of complex ranking,
which manifests itself in two main forms. One form determines each house’s relative rank
________________________

38 Barratt (ed) Persons and the Family 387; Himonga in Heaton (ed) Law of Divorce and Dissolution of Life
Partnerships 247–248. On the accrual system, see ch 7 above.
39 S 7(3).
40 On these sections, see ch 6 above. As Mamashela 2004 SAJHR 631–632 and 635 points out, the consent
requirement in s 15(2) and (3) of the Matrimonial Property Act 88 of 1984 will be of very little conse-
quence for many rural customary spouses as they do not own the types of assets the section relates to.
41 2009 (3) BCLR 24 (CC), 2009 (3) SA 152 (CC).
42 Precisely what the relevant customary-law rules are and whether they can be reconciled with the constitu-
tional values of equality and dignity are difficult to ascertain. Perhaps customary law – as a living body of law
– has developed towards gender equality in respect of the sharing and control of family and house proper-
ty, but this is by no means clear. Thus it may be that the very same customary position which the Constitu-
tional Court criticised so vehemently in Gumede in so far as it applied to monogamous customary marriages
concluded before the coming into operation of the Act continues to operate in polygynous customary mar-
riages which were concluded before the coming into operation of the Act. See also Pieterse 2009 SAJHR
209–210. On the differences between official and current, living customary law, the difficulties in ascertain-
ing the true content of customary law and the complexities surrounding development of customary law in
keeping with the Constitution, see eg Alexkor Ltd v Richtersveld Community 2003 (12) BCLR 1301 (CC), 2004
(5) SA 460 (CC); Bhe v Magistrate, Khayalitsa (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole;
South African Human Rights Commission v President of the Republic of South Africa 2005 (1) BCLR 1 (CC), 2005
(1) SA 580 (CC); Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC), 2009 (2) SA 66 (CC); Gumede v President
of the Republic of South Africa 2009 (3) BCLR 24 (CC), 2009 (3) SA 152 (CC); Barratt (ed) Persons and the
Family 377–378; Bennett Human Rights and African Customary Law 60–64; Himonga in Fenrich et al (eds) The
Future of African Customary Law 33 et seq; Himonga in Heaton (ed) Law of Divorce and Dissolution of Life Part-
nerships 233–236; Himonga and Nhlapo (eds) African Customary Law 16–17, 25–35, 61–63; Mbatha et al in
Bonthuys and Albertyn (eds) Gender, Law and Justice 167–168; Dlamini 1984 SALJ 346; Nhlapo 1991 Acta
Juridica 136; Bekker and Maithufi 1992 Journal for Juridical Science 47; Kerr 1999 Obiter 41; Van der Meide
1999 SALJ 100; Nicholson 2003 THRHR 374–375; Bonthuys and Erlank 2004 TSAR 64–72; Lehnert 2005
SAJHR 246–247, 250 et seq; Bekker and Van Niekerk 2009 SA Public Law 216–222; Kerr 2009 SALJ 44–49 and
679–685; Bekker and Van der Merwe 2011 SAPL 115.
 Chapter 17: Customary marriages 223

according to the date of the marriage, with the first wife (also known as the great, main or
chief wife) and her house occupying the highest rank. All other wives and their houses are
ranked according to the date of each marriage. In accordance with the other form of com-
plex ranking, the houses are divided into two separate sections. The first wife is the main wife.
Her house forms the senior house in the first section. The second wife is the right-hand wife,
and her house is the senior house in the second section. All further wives are added, in turn,
to the two sections, and their ranking within each section is determined according to the date
of each marriage. Regardless of which form of the complex ranking system applies to a
particular family, the husband is the family head of all the houses. According to the simple
ranking system, each wife does not establish a separate house. Instead, the property of the
whole group, consisting of the family head and all his wives, forms one estate. However, each
wife occupies a different rank, which is determined by her date of marriage. Thus, the first
wife is the chief wife and all other wives are ranked in the order of their marriages. In this
system too, the husband is the head of the family.43
Except when the simple ranking system applies, assets acquired by a spouse become either
general (or family) property or house property. The position of a person within the family
usually determines ownership of property he or she acquires. Generally, anything obtained by
or through a member of a particular house belongs to that house. For example, wages earned
by a particular wife and her children and lobolo paid for her daughters belong to that wife’s
house. The family head may also allot property to a particular house. The family head’s
property and earnings, and any unalloted property fall into the family estate which the family
head must use to support his dependants. Any surplus may be used in his discretion.44
(b) Polygynous marriages entered into after the coming into operation of the Act
(i) A court-approved contract
In terms of section 7(6) of the Act, a husband who already is a party to a customary marriage
and wants to enter into another customary marriage must, prior to the celebration of the new
marriage, obtain the court’s approval of a written contract which is to regulate the future mat-
rimonial property system of his marriages.45 If the existing customary marriage is in community
of property or subject to the accrual system, the court must terminate the matrimonial prop-
erty system and effect a division of the property.46
In all applications, the court must ensure that the property is equitably distributed, and
take into account all the relevant circumstances of the family groups that would be affected if
the application were granted.47 Although the Act does not expressly require that the present
and future wives’ wishes should be taken into account, the court will presumably consider

________________________

43 On the establishment and ranking of houses, see Himonga and Nhlapo (eds) African Customary Law 129;
Mwambene in Clark (ed) Family Law Service pars G22–G23, G28; Mofokeng 40–41; Olivier Die Privaatreg van
die Suid-Afrikaanse Bantoetaalsprekendes 121–137; Olivier et al LAWSA Indigenous Law pars 41–44; Seymour 69–
95; Sinclair assisted by Heaton 247.
44 Generally on ownership and control of house and family property, see ch 5 of the Zulu Codes; Bennett
Human Rights and African Customary Law 122–123; Bekker and Maithufi in Rautenbach et al Introduction to
Legal Pluralism in South Africa 61–62; Himonga and Nhlapo (eds) African Customary Law 129; Mwambene in
Clark (ed) Family Law Service pars G25–G26, G54–G56; Mofokeng 78–81; Olivier Die Privaatreg van die Suid-
Afrikaanse Bantoetaalsprekendes 140–150; Olivier et al LAWSA Indigenous Law pars 46–48; Seymour 134–140;
Sinclair assisted by Heaton 247–248; South African Law Commission Report on Customary Marriages Project 90
par 6.3; Mqeke 1999 Obiter 63–64; Van der Meide 1999 SALJ 100; Akinnusi 2000 Journal for Juridical Science
147–148; Vorster, Dlamini-Ndwandwe and Molapo 2001 SA Journal of Ethnology 64–65; Jansen 2002 Journal
for Juridical Science 118–120; Pienaar 2003 Stell LR 263; Bekker and Boonzaaier 2007 De Jure 281–283.
45 See Horn and Janse van Rensburg 2002 Journal for Juridical Science 63–64 and Himonga 2005 Acta Juridica 88
and 106 on the financial, time-related and accessibility problems the requirement of court approval creates.
46 S 7(7)(a)(i).
47 S 7(7)(a)(ii) and (iii). But see Van Schalkwyk 2003 De Jure 305, 306 who submits that these subsections
apply only to customary marriages entered into prior to the coming into operation of the Act and those
which are entered into out of community of property after the coming into operation of the Act.
224 South African Family Law

their views as part of their family groups’ circumstances. Furthermore, all persons having a
sufficient interest in the matter and, in particular, the husband’s present and future wives,
must be joined in the proceedings.48
The Act authorises the court to allow amendments to the proposed contract, grant an or-
der subject to conditions, or refuse the application if, in its opinion, any party’s interests
would not be sufficiently safeguarded by the proposed contract.49
The Act does not stipulate the consequences of failure to obtain a court-approved contract.
50
In MM v MN the Constitutional Court held that section 7(6) does not constitute a require-
ment for the validity of a customary marriage; it simply relates to the matrimonial property
system. Consequently, non-compliance with section 7(6) does not render the marriage void
or voidable.
(ii) The matrimonial property system(s) the contract can provide for
The Act does not expressly stipulate whether the proposed contract could provide for differ-
ent matrimonial property systems to operate in a husband’s various marriages. In other
words, if a husband has, say, three wives, could one marriage be subject to the accrual system
while the other two are subject to complete separation of property? It seems not, for the Act
provides that the contract must regulate the future “matrimonial property system of his
marriages”. The use of the singular “system” indicates that one matrimonial property system
must govern all his marriages.51 If this interpretation is correct, the issue arises whether a
husband who wants to enter into a polygynous customary marriage can select any of the
matrimonial property systems which are available to couples who enter into a monogamous
52
customary marriage, a civil marriage or a civil union. In MM v MN the majority of the
Constitutional Court endorsed the interpretation of the Supreme Court of Appeal in MN v
53
MM that the legislature did not intend non-compliance with section 7(6) to result in invalid-
ity of a polygynous customary marriage and that the consequences of non-compliance with
the section were adequately met by treating subsequent customary marriages as being out of
community of property. It is submitted that complete separation of property is in any event
54
the only viable matrimonial property system in a polygynous customary marriage.
It seems legally impossible to apply community of property to a polygynous marriage, since
this matrimonial property system entails that each spouse obtains an undivided and indivisi-
ble half-share in all property acquired and all liabilities incurred by either spouse.55 It could
surely not be argued that the husband in a polygynous marriage should get one undivided
half-share and all his wives should jointly get the other undivided half-share. Nor could a
separate joint estate be formed for each marriage, for how would the husband’s property and
debts be divided between the various joint estates? Perhaps a court would be willing to
________________________

48 S 7(8).
49 S 7(7)(b).
50 2013 (4) SA 415 (CC) (also reported as Mayelane v Ngwenyama (Women’s Legal Centre Trust and Others as
Amici Curiae) 2013 (8) BCLR 918 (CC)).
51 See also Van Schalkwyk 2000 THRHR 491; Jansen 2002 Journal for Juridical Science 122; Van Schalkwyk 2003
De Jure 305; Streicher June 2004 De Rebus 29; Bakker 2007 THRHR 484.
52 2013 (4) SA 415 (CC) (also reported as Mayelane v Ngwenyama (Women’s Legal Centre Trust and Others as
Amici Curiae) 2013 (8) BCLR 918 (CC)).
53 [2012] 3 All SA 408 (SCA), 2012 (10) BCLR 1071 (SCA), 2012 (4) SA 527 (SCA).
54 See also Barratt (ed) Persons and the Family 388; Mofokeng 83; Pienaar 2003 Stell LR 263, 265–266; Büchner-
Eveleigh 2013 De Jure 891. Maithufi and Moloi 2002 TSAR 609 are also of the view that complete separation
operates in a polygynous customary marriage. They base their view on s 7(2) of the Act which, they say, “re-
gards a polygamous customary marriage as a marriage out of community of property and profit and loss”.
(See also Maithufi and Bekker 2002 CILSA 189.) This is incorrect, for s 7(2) deals with a monogamous cus-
tomary marriage and provides that such a marriage is in community of property unless the spouses exclude
community of property in an antenuptial contract. Although Bakker 2007 THRHR 486–487 argues that
community of property and complete separation of property can operate in a polygynous marriage, he hes-
itantly supports the view that complete separation of property is the only viable option.
55 See ch 6 above.
 Chapter 17: Customary marriages 225

approve a contract in which the spouses agree on a variation of community which indicates
exactly what proportion of the total value of the husband’s estate should fall into which joint
estate (for example, 60 per cent falls into the joint estate created by marriage A, 20 per cent
into that created by marriage B, and the remaining 20 per cent into the joint estate created by
marriage C). Serious problems could arise at the termination of a particular joint estate as the
spouses might agree, for instance, that the value of the wife’s half of the particular percentage
of the assets in the joint estate is to be made up by giving her a particular asset (such as the
matrimonial home), which could seriously prejudice the remaining wives.56
Likewise, the accrual system does not seem to be a viable matrimonial property system in a
polygynous customary marriage.57 Let us say, for example, that a husband has two wives. How
would the accrual be determined and divided between them? Awarding each spouse a third of
the combined accrual would violate the statutorily prescribed method for determining a
spouse’s accrual claim. In terms of section 3(1) of the Matrimonial Property Act, a spouse’s
accrual claim is “for an amount equal to half of the difference between the accrual of the
respective estates of the spouses”, that is, half the difference between the larger accrual and
the smaller accrual. This provision cannot be applied in a polygynous marriage, for the
58
accrual in more than two estates would have to be taken into account.
Complete separation of property therefore seems to be the only viable option. Application
of this system would not cause practical difficulties, as the husband and each of his wives
________________________

56 Vorster, Dlamini-Ndwandwe and Molapo 2001 SA Journal of Ethnology 65, Bekker and Van Niekerk 2009 SA
Public Law 209 and Knoetze 2005 THRHR 298 are also of the view that community of property cannot oper-
ate in a polygynous marriage. Van Schalkwyk 2000 THRHR 491–492, 497, 2003 De Jure 306–307 submits that
community of property can operate if all the assets and liabilities the husband and all of his wives have at
the time of the further marriage are excluded from the joint estate. A single joint estate which excludes all
the spouses’ antenuptial assets and liabilities is then created when the further marriage comes into exist-
ence. When the joint estate is terminated (which presumably has to happen when the husband’s customary
marriage with one of his wives is terminated), the estate is divided equally between the husband and all the
wives. Eg, if the husband has two wives, he and his wives each receive a third of the single joint estate. (See
also Streicher June 2004 De Rebus 30; Bakker 2007 THRHR 485–486). Van Schalkwyk’s point of view inter
alia entails that if one customary marriage is terminated, the matrimonial property system which operates
in all the other marriages is also terminated even though those marriages continue to exist. This is not in
keeping with the provisions of the Act, for the Act does not provide that termination of one marriage inevi-
tably results in the termination of the matrimonial property system which operates in the remaining mar-
riages. Moreover, what matrimonial property system would apply in the remaining marriages after the
dissolution of the one marriage? Would the husband again have to approach the court for approval of a
contract governing the matrimonial property system of the remaining marriages? If the answer is “Yes”,
what would happen to the matrimonial property until such time as the new contract is approved? And how
would liability for debts which are incurred and ownership of property which is acquired in the intervening
time be determined? Or is the answer perhaps that the old matrimonial property contract continues to op-
erate subject to a new joint estate being created between the husband and the remaining wives? This option
could give rise to serious difficulties of proof and mathematics. Or must the court which dissolves the one
customary marriage, by virtue of its power to “make any equitable order that it deems just” (s 8(4)(b)) also
make an order in respect of the matrimonial property system which is to operate in the remaining marriag-
es? This would still not solve the problem with marriages terminated by death as the court does not have
the power to make an equitable order in such event. On the termination of a customary marriage by death,
see below in this chapter.
57 But see Van Schalkwyk 2000 THRHR 492, 2003 De Jure 306–307. Streicher June 2004 De Rebus 30–31 admits
that the accrual system is not a viable option but nevertheless argues that it is available to spouses in a polyg-
ynous customary marriage. See also Vorster, Dlamini-Ndwandwe and Molapo 2001 SA Journal of Ethnology 65.
58 The impossibility of applying the accrual system to a polygynous customary marriage is illustrated by the
following example. Let us assume that a husband enters into a polygynous customary marriage with three
wives. Within six months of one another, the individual marriages end in divorce. None of the wives’ estates
show any accrual at the time of the dissolution of the marriage. Thus, each wife has a claim to share in her
husband’s accrual upon dissolution of her marriage. If the method prescribed by s 3(1) of the Matrimonial
Property Act were to be used, the wife whose marriage is dissolved first would be entitled to half her hus-
band’s accrual, which would reduce the second and third wives’ claims to share in their husband’s accrual
on the dissolution of their respective marriages. Likewise, if the second wife’s accrual share were to be cal-
culated according to the statutorily prescribed method, this would reduce the third wife’s accrual claim.
226 South African Family Law

would simply retain their own estates. But complete separation of property is notoriously
unfair to wives who do not have an opportunity to build up their own estates.59 In the case of
dissolution of a polygynous marriage by divorce, the court fortunately has the power to make
“any equitable order that it deems just”. However, wives whose polygynous customary mar-
riages are terminated by death cannot avail themselves of this remedy.
Finally, the contract could possibly apply the customary-law consequences regarding own-
ership and control of family and house property to the polygynous marriage. However, it is
submitted that inclusion of these consequences should be allowed only if it can be shown that
customary law has developed to such an extent that current, living customary law satisfies the
constitutional requirement of gender equality. Whether such development has taken place is
by no means clear.60

17.4.4 Alteration of the matrimonial property system

(a) Marriages entered into before the coming into operation of the Act
Section 7(4) of the Recognition of Customary Marriages Act authorises spouses who entered
into a customary marriage before the coming into operation of the Act to alter their matrimo-
nial property system with the court’s permission. The application must be made by the spouses
jointly, and if the husband has more than one wife, all wives must be joined in the proceed-
ings.61 The court will only grant the application if it is satisfied that:
(1) There are sound reasons for the proposed change.
(2) Sufficient written notice has been given to all creditors to whom the spouses owe more
than R500 (or such amount as the Minister of Justice and Constitutional Development
(now the Minister of Justice and Correctional Services) may determine in the Government
Gazette).
(3) No other person will be prejudiced by the proposed change.62
(b) Marriages entered into after the coming into operation of the Act
The Recognition of Customary Marriages Act provides that spouses who enter into a monog-
amous customary marriage after the coming into operation of the Act may apply to court in
terms of section 21(1) of the Matrimonial Property Act for permission to change their matri-
monial property system.63 As the relevant provision of the Recognition of Customary Marriages
Act is expressly limited to monogamous customary marriages, spouses in polygynous custom-
ary marriages which were concluded after the coming into operation of the Act cannot invoke
the same mechanism to change their matrimonial property system.64

________________________

59 It was precisely for this reason that the judicial discretion to redistribute assets upon divorce, and the accrual
system were introduced into our law: see chs 12 and 7 above, respectively.
60 On customary law as a living and developing body of law and the difficulties regarding establishing the con-
tent of customary law, see fn 42 above.
61 Van Schalkwyk 2003 De Jure 307 correctly points out that if a polygynous customary marriage which is con-
cluded after the coming into operation of the Act can only be subject to complete separation of property
(as is argued above in this chapter), spouses who entered into a polygynous customary marriage prior to
the coming into operation of the Act should only be allowed to change to complete separation of property.
62 This application is similar to the application in terms of s 21(1) of the Matrimonial Property Act. On the
latter application, see ch 8 above.
63 S 7(5). Although this section applies the whole of s 21 of the Matrimonial Property Act to monogamous
customary marriages entered into after the coming into operation of the Act, s 21(2) is clearly irrelevant as
it deals with a mechanism for postnuptial introduction of the accrual system which is no longer available:
see ch 8 above. See also Van Schalkwyk 2000 THRHR 490 who submits that s 21(1) cannot be used to intro-
duce customary-law proprietary consequences.
64 See also Van Schalkwyk 2003 De Jure 307–308, who is critical of the restriction of the extension of s 21(1) of
the Matrimonial Property Act to monogamous customary marriages entered into after the coming into op-
eration of the Recognition of Customary Marriages Act.
 Chapter 17: Customary marriages 227

17.4.5 A customary marriage a minor entered into without the requisite consent
(a) The patrimonial consequences if the marriage is set aside
Above in this chapter it is indicated that a customary marriage a minor entered into without
the necessary consent may be dissolved by the court on application by the minor or his or her
parent or legal guardian. This rule applies regardless of when the minor entered into the
marriage. In terms of section 8(4)(a) of the Recognition of Customary Marriages Act, section
24(1) of the Matrimonial Property Act governs the patrimonial consequences if the court dis-
solves the marriage. Thus, the court may make any order with regard to the division of the
spouses’ matrimonial property that it deems just.65
(b) The patrimonial consequences if the marriage is not set aside
It is unclear what the patrimonial consequences are if an unassisted minor’s customary marriage
is not set aside. Section 24(2) of the Matrimonial Property Act regulates these consequences
in respect of a minor’s civil marriage. The only references in the Recognition of Customary
Marriages Act to section 24(2) of the Matrimonial Property Act appear in sections 7(3) and
10(3) of the Act, which apply the entire section 24 to monogamous customary marriages in
community of property and to marriages which are concluded in community of property by
couples who originally married each other at customary law and subsequently also concluded
a civil marriage with each other.66
It seems that the legislator erroneously included the references to section 24 of the Matri-
monial Property Act in sections 7(3) and 10(3) of the Recognition of Customary Marriages
Act.67 First of all, it should be noted that these references are partly meaningless, since section
24(1) of the Matrimonial Property Act governs the position that obtains when a minor’s
unassisted marriage is set aside,68 while sections 7(3) and 10(3) of the Recognition of Cus-
tomary Marriages Act relate to the position during the subsistence of a monogamous customary
marriage and a “converted” marriage in community of property. Furthermore, the second
part of section 24(2) of the Matrimonial Property Act (the part that deems any antenuptial
contract in terms of which the accrual system is included, to have been validly executed) quite
obviously also has no meaning in the context of sections which expressly provide that they
apply to a marriage “which is in community of property”. The references to section 24 can
therefore have meaning only in so far as they afford validity to a minor’s unassisted marriage
in community of property which is not set aside. The implication is that if the legislator
indeed intended section 24(2) of the Matrimonial Property Act to regulate the patrimonial
consequences of an unassisted minor’s marriage which is not set aside, it has actually decreed
that all monogamous customary marriages and “converted” marriages of unassisted minors
which are not set aside are in community of property.69 It seems highly unlikely that the legis-
lator would have intended this result.
Furthermore, section 7(3) of the Recognition of Customary Marriages Act relates only to
monogamous customary marriages.70 Why would the legislator have deemed it necessary only
________________________

65 On s 24(1) of the Matrimonial Property Act, see further ch 3 above.

66 The patrimonial consequences and administration of the joint estate in a monogamous customary mar-
riage are discussed above in this chapter, and the patrimonial consequences of a “converted” marriage be-
low in this chapter.
67 It is interesting to note that the South African Law Commission did not include s 24 in the comparable
clauses it drafted for the Recognition of Customary Marriages Bill it attached to the Report on Customary
Marriages Project 90: see cll 7(3) and 10(2)(b) of that Bill. The reference to s 24 was inserted by the Justice
Portfolio Committee.
68 The legislator itself acknowledges this by expressly providing in s 8(4)(a) of the Recognition of Customary
Marriages Act that “[a] court granting a decree for the dissolution of a customary marriage . . . has the
powers contemplated in . . . section 24(1) of the Matrimonial Property Act”.
69 But see Van Schalkwyk 2003 De Jure 308 who states that an antenuptial contract the minor concluded prior
to his or her unassisted customary marriage is enforceable. See also Van Schalkwyk 2000 THRHR 489.
70 All “converted” marriages are monogamous: see below in this chapter. Therefore, s 10(3) is not at issue in
this context.
228 South African Family Law

to regulate monogamous customary marriages of unassisted minors? Arguably, the issue of an

unassisted minor’s polygynous customary marriage will simply never arise, as a husband who
wants to enter into a further customary marriage after the coming into operation of the Act
must approach the court in terms of section 7(6) for approval of a contract governing the
matrimonial property system which is to operate in his polygynous marriage71 and the court
will simply refuse to entertain such an application if the minor does not have the required
consent to marry. However, it must be borne in mind that a court-approved contract is not a
requirement for the validity of a polygynous customary marriage. Moreover, section 7(6) does
not apply to customary marriages which were entered into prior to the coming into operation
of the Act.
Furthermore, restricting an unassisted minor who enters into a customary or “converted”
marriage which is not set aside to only one matrimonial property system, namely community
of property, protects only those unassisted minors whose financial interests are served by that
particular matrimonial system and leaves minors whose financial interests require that they be
allowed to enter into an antenuptial contract in which they select the accrual system or
complete separation of property unprotected.72 This differentiation is unconstitutional be-
cause it amounts to an unjustifiable denial of equality before the law and equal protection
and benefit of the law and does not afford paramountcy to the best interests of the child.73
If the view is accepted that the legislator erroneously included section 24 in the list of pro-
visions of the Matrimonial Property Act which apply to customary marriages and “converted”
marriages in community of property, it means that the Recognition of Customary Marriages Act
fails to address the issue of the patrimonial consequences of a minor’s unassisted marriage
which is not set aside. (Regardless of whether or not this view is accepted, it is clear that the Act
does not regulate the patrimonial consequences of a polygynous customary marriage an unas-
sisted minor concluded prior to the coming into operation of the Act.) One must therefore
look to customary law in an attempt to discover what the patrimonial consequences of such
marriages are. In terms of customary law, a minor who wants to marry may only do so with the
consent of his or her father, legal guardian or family head. Traditionally, customary law did not
provide for nullity of a customary marriage,74 probably because customary marriages were
assumed invariably to be concluded with the involvement of both family groups. Traditional,
uncodified customary law thus does not provide us with an answer. The Codes of Zulu law do,
however, deal with nullity of a customary marriage. They expressly provide that a marriage
which does not comply with the essentials for the coming into existence of a valid customary
marriage is void.75 The issue of the patrimonial consequences of a customary marriage a minor
enters into without consent and which is not set aside thus simply does not arise in terms of the
Codes. Consequently, customary law does not assist us. Therefore, we must look to general
principles in an attempt to solve the problem. Before the minor reaches majority, the High
Court could possibly, in its capacity as upper guardian of all minors,76 determine the patrimonial
consequences of the minor’s unassisted marriage which is not set aside. But it is unclear what
the position is if the minor has in the meantime reached majority. As the court is then no
longer in the position of upper guardian, it cannot on this basis determine the patrimonial
consequences of the marriage.

________________________

71 S 7(6); see further the discussion above in this chapter.

72 But see Van Schalkwyk 2000 THRHR 489, who submits that s 7(3) of the Recognition of Customary Marriag-
es Act entails that the same patrimonial consequences apply to a minor’s unassisted civil or customary mar-
riage. On the patrimonial consequences of an unassisted minor’s civil marriage which is not set aside, see
ch 3 above.
73 Ss 9(1), 28(2) and 36 of the Constitution.
74 See eg South African Law Commission Report on Customary Marriages Project 90 par 8.1.1.
75 S 49 of the Codes of Zulu law.
76 On the court’s upper guardianship, see ch 23 below.
 Chapter 17: Customary marriages 229

17.5 The wife’s status

The Act abolishes the wife’s status of perpetual minority and her husband’s guardianship over
her in all customary marriages.77 Section 6 of the Act furthermore expressly provides that the
wife has,
on the basis of equality with her husband and subject to the matrimonial property system govern-
ing the marriage, full status and capacity, including the capacity to acquire assets and to dispose of
them, to enter into contracts and to litigate, in addition to any rights and powers that she might
have at customary law.
Unless current, living customary law no longer restricts ownership and control of all family
property to the husband as the family head, the proviso that the wife’s status and capacity are
subject to the matrimonial property system means that in a polygynous customary marriage
concluded before the coming into operation of the Act the capacity of the wives to acquire
and deal with property and their capacity to act are still severely restricted.78
It is unclear whether section 6 alters the status of multiple wives of one man vis-à-vis one an-
other. As appears from the discussion of the patrimonial consequences of a customary marriage,
wives do not all occupy the same rank. Section 6 provides that a wife has the same status as her
husband. This rule applies regardless of the number of wives the husband has. One interpreta-
tion is that because all the wives have the same status as their husband, there can be no distinc-
tion according to rank. Another is that, although the Act creates equality between husband and
wife, the phrase “in addition to any rights that she may have at customary law” implies that the
relative status of each wife remains unaltered so that, for example, the chief wife retains the
customary rights associated with her superior status.79

17.6 Termination of the marriage by divorce

17.6.1 Ground for divorce
The provisions which regulate the dissolution of a customary marriage are the same regardless
of when the marriage was entered into. In so far as the ground for divorce is concerned, the
Act permits dissolution only on the ground of the irretrievable breakdown of the marriage.80

17.6.2 The consequences of divorce

(a) The patrimonial consequences of divorce
(i) General
Broadly speaking, the financial consequences of divorce in respect of a customary marriage
are the same as those which apply to a civil marriage or civil union. Section 8(4)(a) of the
Recognition of Customary Marriages Act inter alia confers “the powers contemplated in sec-
tions 7, 8, 9 and 10 of the Divorce Act, 1979” on the court which dissolves a customary mar-
riage. Thus, the court inter alia has the power to make an order in accordance with the terms
________________________

77 Ss 6 and 9 and the schedule. The husband’s guardianship over his wife entailed inter alia that she could not
acquire property and had no capacity to act or litigate unless she was assisted by her husband.
78 On the development of customary law, and living customary law, see above in this chapter.
79 See further Himonga and Nhlapo (eds) African Customary Law 120–121; Vorster 1999 Obiter 90; Horn and
Janse van Rensburg 2002 Journal for Juridical Science 61. On the practical implications of s 6, see further
Bronstein 2000 SAJHR 563–570, 573–574; Jansen 2002 Journal for Juridical Science 115; Pienaar 2003 Stell LR
258, 262; Bekker and Van Schalkwyk 2005 De Jure 396; Mamashela 2004 SAJHR 634.
80 S 8(1). The circumstances which formerly constituted the customary-law grounds for divorce can be taken
into account in deciding whether irretrievable breakdown has occurred: see eg Himonga and Nhlapo (eds)
African Customary Law 149; Jansen in Rautenbach et al Introduction to Legal Pluralism in South Africa 64–65;
Skelton and Carnelley (eds) Family Law 188; Maithufi and Bekker 2001 Obiter 262, 266; Horn and Janse van
Rensburg 2002 Journal for Juridical Science 65; Van Schalkwyk 2003 De Jure 309. For a detailed discussion of
the ground for divorce in a customary marriage, see Himonga in Heaton (ed) Law of Divorce and Dissolution
of Life Partnerships 237–242.
230 South African Family Law

of a settlement agreement and to make an order regarding post-divorce maintenance, redis-

tribution of assets, forfeiture of patrimonial benefits, and costs. It may also subsequently
rescind, vary or suspend a maintenance order or an order regarding the spouses’ children.81
In the case of the dissolution of a polygynous customary marriage, section 8(4)(b) of the Act
further requires the court to take all relevant factors into consideration and to “make any
equitable order that it deems just”.
(ii) Redistribution of assets
Redistribution in terms of section 8(4)(a)
Prior to the decision in Gumede v President of the Republic of South Africa,82 it was unclear to
which customary marriages the court’s power to order redistribution in terms of section
8(4)(a) of the Act applies. Although section 8(4)(a) applies the whole of section 7 of the Di-
vorce Act 70 of 1979 to the dissolution of a customary marriage, the uncertainty arose because
of the express wording of section 7(3) of the Divorce Act. Section 7(3) expressly restricts the
judicial power to redistribute assets to marriages which are subject to complete separation
and were concluded before the coming into operation of the Matrimonial Property Act on
1 November 1984 in the case of white, coloured and Asian persons, or before the coming into
operation of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988 on 2 De-
cember 1988 in the case of African persons. Since section 7(3) – which was originally enacted
solely with civil marriages in mind – expressly refers only to marriages that are subject to
complete separation of property, it was argued that the court’s power to redistribute property
in customary marriages is similarly restricted. In Gumede the Constitutional Court held that the
power to redistribute assets in terms of section 8(4)(a) applies to all customary marriages,
regardless of when they were concluded and regardless of the matrimonial property system
that operates in them. The court stated that in order to give effect to the dominant purpose
of the Recognition of Customary Marriages Act, namely to recognise and reform the law on
customary marriages and to equalise the status and capacity of customary spouses, the limita-
tion that applies to civil marriages should not be applied to customary marriages. It further
pointed out that, textually, section 8(4)(a) does not refer to customary marriages in or out of
community of property. It held that the absence of a reference to marriage in or out of
community of property was apt in the context of customary marriages for, “properly under-
stood, customary marriages should not be seen through the prism of the marital proprietary
regimes under the common law or divorce legislation that regulates civil marriages”.83 It
stated that customary law “does not place a premium on the dichotomy between marriages in
and out of community of property” and that the equitable discretion section 8(4)(a) confers
on a court is “more consonant with the underlying ethos of customary law which strives for
equity in resolving conflict”.84 The court therefore concluded that there was no valid reason
for limiting the court’s power to redistribute assets to customary marriages in which separa-
tion of property operates. In customary marriages, unlike civil marriages, redistribution of
assets can therefore be invoked regardless of the matrimonial property system which operates
in the marriage.85
The court further held that a spouse who seeks redistribution of assets in a customary mar-
riage does not bear an onus to prove that he or she is entitled to have certain assets trans-
ferred to him or her. Instead, the court has to
carefully examine all the circumstances relevant to the customary marriage and in particular the
manner in which the property of the marriage has been acquired, controlled and used by the

________________________

81 On settlement agreements, forfeiture of benefits, redistribution of assets and pension interests, see further
ch 12 above. On post-divorce maintenance and costs see, respectively, chs 13 and 15 above.
82 2009 (3) BCLR 24 (CC), 2009 (3) SA 152 (CC).
83 Par 43; see also par 42.
84 Par 43.
85 On the unconstitutionality of this differentiation, see ch 12 above.
 Chapter 17: Customary marriages 231

parties concerned, in order to determine, in the final instance, what would be a just and equit-
able order on the proprietary consequences of the divorce.86
Redistribution in terms of section 8(4)(b)
Section 8(4)(b) of the Act also empowers the court to make a redistribution order, but this
section applies only to the dissolution of a marriage of a man who is a spouse in a polygynous
customary marriage. Section 8(4)(b) provides that the court which dissolves such a customary
marriage must take all relevant factors into consideration and “make any equitable order that
it deems just”. The section specifically lists a postnuptial alteration of the spouses’ matrimonial
property system as a relevant factor.87 If the husband entered into another customary mar-
riage after the coming into operation of the Act, the court must also take the existing order
regarding the matrimonial property system of the polygynous marriage into account.88
(iii) Pension interests
Van Schalkwyk89 submits that section 7(7) and (8) of the Divorce Act, which deals with spouses’
pension interests upon divorce,90 does not apply to customary marriages in which customary-
law patrimonial consequences operate. His submission is based on the premise that section
7(7) and (8) applies only to marriages in which a “burgerlike huweliksgoederebedeling” (a
civil matrimonial property system) operates. It is submitted that the wording of neither
section 8(4)(a) of the Recognition of Customary Marriages Act nor section 7(7) and (8) of
the Divorce Act indicates such limitation. Nor does there seem to be any other reason why
pension interests should only be taken into account in customary marriages in which the mat-
91
rimonial property system is not governed by customary law. Surely, the fact that sharing of
pension interests upon divorce is foreign to customary law does not justify excluding the
application of section 7(7) and (8). After all, pension interests were traditionally not shared
upon the dissolution of a civil marriage either and it was precisely to change this position that
section 7(7) and (8) was originally inserted into the Divorce Act. It must furthermore be
borne in mind that as a result of the decision in Gumede v President of the Republic of South
Africa,92 a court which dissolves a customary marriage may redistribute the spouses’ assets.
Excluding pension interests from the scope of the court’s power to redistribute assets in
polygynous customary marriages which are subject to customary proprietary consequences
while including them in the scope of the court’s power in all other customary marriages
would be an unjustifiable violation of the right to equality93 and would therefore be unconsti-
tutional.
(iv) Forfeiture of benefits
Some authors are of the view that forfeiture of benefits cannot apply to customary marriages
in which the patrimonial consequences are governed by customary law.94 Once again this view
is based on the assumption that the particular section of the Divorce Act, namely section 9, is
limited to marriages in which a “burgerlike huweliksgoederebedeling” applies. As the
________________________

86 Par 44. See also par 48 where it is stated that the court must “investigate all the facts relevant to the mar-
riage property”.
87 Postnuptial alteration of the matrimonial property system in a customary marriage is governed by s 7(4)
and (5) of the Recognition of Customary Marriages Act and is discussed above in this chapter.
88 On the existing order regarding the matrimonial property system which operates in the polygynous mar-
riage, see the discussion of s 7(6) and (7) above in this chapter.
89 2000 THRHR 496.
90 On s 7(7) and (8), see ch 12 above.
91 See also Himonga in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 250–251; Jansen in
Rautenbach et al Introduction to Legal Pluralism in South Africa 67.
92 2009 (3) BCLR 24 (CC), 2009 (3) SA 152 (CC).
93 Ss 9 and 36 of the Constitution.
94 Van Schalkwyk 2000 THRHR 496; Bonthuys 2001 THRHR 211; Jansen 2002 Journal for Juridical Science 124;
but see also 2003 De Jure 310, where Van Schalkwyk does not state that forfeiture is restricted to some cus-
tomary marriages.
232 South African Family Law

wording of neither section 8(4)(a) of the Recognition of Customary Marriages Act nor
95
section 9 of the Divorce Act indicates such limitation, this view is not supported either.
(v) Lobolo
Because the contract for the delivery of lobolo is concluded between the bridegroom and the
bride’s father, it does not relate to the spouses’ matrimonial property and is not automatically
terminated by the dissolution of the marriage.96
(b) The interests of the children of divorcing parents
The Act empowers the court to make an order regarding the guardianship or care of a minor
child of a customary marriage.97 It also applies section 6 of the Divorce Act as well as the
Mediation in Certain Divorce Matters Act 24 of 1987 to the dissolution of the marriage.98
Thus, a Family Advocate must investigate the welfare of the child and furnish the court with a
report and recommendations. After considering the report and recommendations, the court
may make any order it deems fit regarding guardianship, care, contact and maintenance.99
(c) Maintenance
In respect of maintenance, the Recognition of Customary Marriages Act specifically requires
the court to take into account any provision or arrangement that has been made in accord-
ance with customary law.100 The payment of lobolo and isondlo (that is, delivery of an animal by
a father to the person who raised his child)101 probably qualify as factors in terms of this pro-
vision.102

17.6.3 Joinder
The court may order that any person who, in the court’s opinion, has a sufficient interest in
the matter be joined in the divorce proceedings.103 Examples of such persons are any or all of
the husband’s other wives and the wife’s father as lobolo holder.104

17.6.4 Jurisdiction
A divorce order in respect of a customary marriage must be obtained from the High Court or
a Regional Division of the Magistrate’s Court.105
________________________

95 See also Himonga in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 251.
96 On the rules regarding the return of lobolo, see eg Jansen in Rautenbach et al Introduction to Legal Plural-
ism in South Africa 68; Mwambene in Clark (ed) Family Law Service pars G60–G62; Mofokeng 89–90, 94;
Olivier et al LAWSA Indigenous Law pars 58, 59, 63; Jansen 2003 Journal for Juridical Science 130–131; Curran
and Bonthuys 2005 SAJHR 623; Nkosi Nov 2013 De Rebus 36. See further Himonga in Heaton (ed) Law of
Divorce and Dissolution of Life Partnerships 255–256.
97 S 8(4)(d).
98 S 8(3).
99 S 6 of the Divorce Act 70 of 1979 and the Mediation in Certain Divorce Matters Act 24 of 1987 are dis-
cussed in ch 14 above. See further Barratt (ed) Persons and the Family 389; Himonga in Heaton (ed) Law
of Divorce and Dissolution of Life Partnerships 262–278; Jansen in Rautenbach et al Introduction to Legal Plural-
ism in South Africa 65–66; Maithufi and Bekker 2001 Obiter 268–269; Ngema 2013 PELJ 404.
100 S 8(4)(e).
101 On isondlo and maintenance of children under customary law, see Clark in Van Heerden et al (eds)
Boberg’s Law of Persons and the Family 257–258; Mwambene in Clark (ed) Family Law Service par G75;
Mofokeng 92; Olivier Die Privaatreg van die Suid-Afrikaanse Bantoetaalsprekendes 557–561; Olivier et al
LAWSA Indigenous Law par 169; Seymour 242–246; South African Law Commission Report on Customary
Marriages pars 7.4.2–7.4.4.
102 See also Himonga in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 275–277; Himonga and
Nhlapo (eds) African Customary Law 156; Jansen in Rautenbach et al Introduction to Legal Pluralism in South
Africa 69; Maithufi 2000 THRHR 515; Pienaar 2003 Stell LR 267–268. On post-divorce spousal mainte-
nance in terms of the Recognition of Customary Marriages Act, see further Himonga in Heaton (ed) Law
of Divorce and Dissolution of Life Partnerships 259–260.
103 S 8(4)(c).
104 See Mofokeng 94; Maithufi 2000 THRHR 515 and Maithufi and Moloi 2002 TSAR 609–610 on joining the
wife’s father as lobolo holder. See further Maithufi and Bekker 2002 CILSA 194–195.
105 S 8(1) read with s 1 of the Recognition of Customary Marriages Act.
 Chapter 17: Customary marriages 233

17.6.5 Procedure
Although the adversarial procedure applies to divorce proceedings in respect of customary
marriages just as it applies to divorce proceedings in respect of civil marriages and civil un-
ions, the Recognition of Customary Marriages Act expressly preserves the “role, recognised in
customary law, of any person, including any traditional leader, in the mediation, in accord-
ance with customary law, of any dispute or matter arising prior to the dissolution of a custom-
ary marriage by a court”.106 Therefore, the traditional structures can still be used for, for
example, mediating domestic disputes during the subsistence of the marriage, getting the
couple to attempt to reconcile, or getting them to conclude a settlement agreement.107

17.6.6 Interim relief

Pending their divorce, either spouse in a customary marriage may apply for maintenance pen-
dente lite, a contribution towards costs, interim care of a child, and/or interim contact with a
child in terms of rule 43 of the Uniform Rules of Court or rule 58 of the Rules of the Magis-
109
trates’ Courts.108 In ML v KG the Gauteng Local Division of the High Court, Johannesburg
held that maintenance for children born from a previous relationship of the wife can, in
certain circumstances, be included in a claim for maintenance pendente lite if the spouses are
alleged to have entered into a customary marriage.

17.7 Termination of the marriage by death

17.7.1 Death as a ground for termination
A significant shortcoming of the Act is its silence on termination of a customary marriage by
death. With the exception of KwaZulu-Natal,110 traditional customary law provides that a cus-
tomary marriage is not necessarily terminated by a spouse’s death. The wife’s death never des-
troys the house created by her marriage. Nor does it necessarily end the marriage. After her
death, her husband may take another woman to produce (further) children for the de-
ceased’s house. This custom is known as the sororate and is practised mainly if the deceased
wife is not survived by an heir. The husband’s death also does not terminate the marriage.
Instead, the custom of the levirate allows the deceased husband to be replaced by one of his
paternal male relatives. Any child the woman has with this man is deemed to be her deceased
husband’s child.111 The Act’s failure to deal with dissolution of a customary marriage by death
presumably affords recognition to the principle that, outside KwaZulu-Natal, death does not
inevitably terminate a customary marriage, and also to the sororate and levirate customs.112
________________________

106 S 8(5).
107 See further Himonga in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 242–243; Horn and
Janse van Rensburg 2002 Journal for Juridical Science 66.
108 Baadjies v Matubela [2002] 2 All SA 623 (W), 2002 (3) SA 427 (W). In this case, the application was dis-
missed because there was no proof of the existence of a customary marriage. On Baadjies, see further ch 15
above. See also Himonga in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 261.
109 (15078/12) [2013] ZAGPJHC 87 (8 April 2013).
110 S 36(1) of the Zulu Codes provides that the death of either spouse terminates a customary marriage. How-
ever, s 56 of the Codes permits ukungena (ie the levirate custom), which is usually practised only if the hus-
band’s death does not terminate the marriage. See below in this chapter on the levirate.
111 On the levirate and sororate, see Bennett Human Rights and African Customary Law 127–128; Himonga and
Nhlapo (eds) African Customary Law 153–154; Jansen in Rautenbach et al Introduction to Legal Pluralism in
South Africa 69–70; Mofokeng 38–40; Olivier Die Privaatreg van die Suid-Afrikaanse Bantoetaalsprekendes 102–
111, 519–535, 537–542; Olivier et al LAWSA Indigenous Law par 37; Seymour 286–294, 279–283; Sinclair
assisted by Heaton 259; Curran and Bonthuys 2005 SAJHR 628–629.
112 See Vorster 1998 (1) Codicillus 46, who made the comment in respect of a similar provision in the draft Rec-
ognition of Customary Marriages Bill which was attached to the South African Law Commission’s Discus-
sion Paper 74 Customary Marriages Project 90, which preceded the Report on Customary Marriages. The Report on
Customary Marriages and the draft Bill attached to it also did not deal with the termination of a customary
marriage by death. See also Vorster 1999 Obiter 90. But see Streicher June 2004 De Rebus 29, who states that
continued
234 South African Family Law

17.7.2 Maintenance of the surviving spouse(s)

In Hassam v Jacobs,113 the Cape Provincial Division of the High Court (now the Western Cape
Division of the High Court, Cape Town) held that the word “survivor” in the Maintenance of
Surviving Spouses Act 27 of 1990 can be applied to more than one surviving spouse without
unduly straining the language of the Act. Van Reenen J accordingly concluded that the Act
applies to de facto monogamous and polygynous Muslim marriages. His decision specifically
concerned spouses in Muslim marriages, but it is self-evident that if surviving spouses in all
Muslim marriages (which are not yet fully recognised) fall within the ambit of the Act, surviv-
ing spouses in all customary marriages (which are fully recognised) also fall within its ambit. It
is most unlikely that the interpretation Van Reenen J adopted will not be followed in the
future for, when the Constitutional Court had to consider another part of his decision in
Hassam, namely his declaration of invalidity of a section of the Intestate Succession Act 81 of
1987,114 it gave no indication that it disapproved of his interpretation of the Maintenance of
Surviving Spouses Act. Therefore, a surviving spouse in any customary marriage can institute a
claim against the estate of his or her deceased spouse for his or her reasonable maintenance
needs until his or her death or remarriage.115 In the case of a polygynous marriage, the fact of
there being several wives will obviously be relevant in determining each wife’s reasonable
maintenance needs.116 If the maintenance claims of surviving wives in a polygynous customary
marriage compete with one another and there are insufficient resources from which they can be
met, the claims will, presumably, by analogy to the rule regarding competing claims of a surviv-
ing spouse and a dependent child of the deceased spouse, all be reduced proportionately.117

17.8 The co-existence of a customary marriage and a civil marriage

or civil union
17.8.1 A subsequent customary marriage by a party to a civil marriage or civil
union
In terms of section 10(4) of the Recognition of Customary Marriages Act and section 8(2) of
the Civil Union Act 17 of 2006, a person who is a party to a civil marriage or a civil union may
not enter into a customary marriage during the subsistence of the civil marriage or civil
union. This rule applies even if the parties to the civil marriage or civil union want to enter
118
into a customary marriage with each other. As section 10(4) of the Recognition of Custom-
ary Marriages Act expressly provides that the parties to a civil marriage are not “competent to
enter into any other marriage”, it is clear that the spouses lack capacity to enter into another
marriage. As a result of the spouses’ lack of capacity, any customary marriage which is con-
119
cluded in violation of section 10(4) is void. Although section 8(2) of the Civil Union Act
________________________

the legislator’s imposition of principles relating to the consequences of a civil marriage on customary mar-
riages implies that death terminates a customary marriage if the marriage is subject to community of prop-
erty or the accrual system. However, he also states at 31 that it is unclear whether death terminates a
customary marriage. See further Jansen in Rautenbach et al Introduction to Legal Pluralism in South Africa 70;
Skelton and Carnelley (eds) Family Law 190; Jansen 2002 Journal for Juridical Science 124.
113 [2008] 4 All SA 350 (C).
114 An order of constitutional invalidity regarding an Act has no force unless it is confirmed by the Constitu-
tional Court: s 172(2)(a) of the Constitution.
115 S 2(1) of the Maintenance of Surviving Spouses Act.
116 See s 3 of the Maintenance of Surviving Spouses Act.
117 S 2(3)(b) of the Maintenance of Surviving Spouses Act. On the Maintenance of Surviving Spouses Act, see
further ch 10 above.
118 The monogamous nature of a civil marriage barred a subsequent customary marriage even prior to the
coming into operation of the Recognition of Customary Marriages Act. However, in the Transkei, a spouse
in a civil marriage out of community of property could validly enter into a subsequent customary marriage
with the same or another woman: ss 1 and 3 of the Transkei Marriage Act 21 of 1978.
119 See also Palesa v Moleko [2013] 4 All SA 166 (GSJ); Jansen in Rautenbach et al Introduction to Legal Pluralism
in South Africa 71; Bonthuys and Pieterse 2000 THRHR 623, 624; Maithufi 2000 THRHR 512; Bakker 2006
continued
 Chapter 17: Customary marriages 235
120
does not expressly refer to competence and the prescription in section 13(2) of the Civil
Union Act that a reference to a marriage includes a civil union does not apply to the Recogni-
tion of Customary Marriages Act, it is submitted that a customary marriage that is concluded
during the subsistence of a civil union is also void. Section 13(1) of the Civil Union Act, which
provides that the legal consequences of a civil marriage apply to a civil union, lends support
to this view. Furthermore, an interpretation which leads to the opposite conclusion, namely
that a customary marriage is void if it is concluded during the subsistence of a civil marriage
but not if it is concluded during the subsistence of a civil union would be unconstitutional as
such a differentiation would unjustifiably violate the equality clause.

17.8.2 A subsequent civil marriage or civil union by a party to a customary

marriage
(a) Capacity to enter into a subsequent civil marriage or civil union
In terms of section 3(2) of the Recognition of Customary Marriages Act, the parties to a custom-
ary marriage are not “competent” to enter into a civil marriage with another person. Howev-
er, in terms of section 10(1), they are “competent” to enter into a civil marriage with each
other, but before they may do so, the husband’s other customary marriages (if any) must first
be dissolved.121 As these sections expressly refer to competence, a subsequent civil marriage in
contravention of these provisions is void.122

________________________

THRHR 71; Maithufi and Bekker 2009 Obiter 170, 171; but see Dlamini 1999 Obiter 30. As s 10(4) operates
prospectively, it does not nullify a customary marriage that was validly concluded during the subsistence of
a civil marriage out of community of property in terms of the Transkei Marriage Act: Kambule v Master of
the High Court [2007] 4 All SA 898 (C) (also reported as Kambule v The Master 2007 (3) SA 403 (EC)).
Although (with the exception of a marriage under the Transkei Marriage Act) a customary marriage
which is concluded during the subsistence of a civil marriage is void, the Supreme Court of Appeal in Gaza
v Road Accident Fund Case 419/2006, 19 Nov 2007 (SCA) (unreported) made an order in accordance with
an agreement providing that the surviving spouse in a customary marriage can claim compensation for
loss of support even though her husband was married to another woman in a civil marriage when he mar-
ried her at customary law: Jansen in Rautenbach et al Introduction to Legal Pluralism in South Africa 53;
Maithufi and Bekker 2009 Obiter 168–169.
120 The section provides that “[a] person who is married under the Marriage Act or the Customary Marriages
Act may not register a civil union”.
121 The wording of ss 3(2) and 10(1) of the Recognition of Customary Marriages Act is similar to s 22(1) and
(2) of the Black Administration Act 38 of 1927, which governed the position prior to the coming into op-
eration of the Recognition of Customary Marriages Act. S 1(a) and (b) of the Marriage and Matrimonial
Property Law Amendment Act 3 of 1988 amended s 22(1) and (2) of the Black Administration Act to in-
troduce the prohibition on a subsequent civil marriage with another person. Prior to the amendment (ie,
prior to 2 Dec 1988), a subsequent civil marriage automatically dissolved the customary marriage. S 22(1)
and (2) of the Black Administration Act were repealed by the schedule of the Recognition of Customary
Marriages Act. As the repeal does not have retroactive effect, s 22(1) and (2) still applies to marriages
which were concluded prior to the coming into operation of the Recognition of Customary Marriages Act.
On the effect of s 22(1) and (2), see eg Thembisile v Thembisile 2002 (2) SA 209 (T); Netshituka v Netshituka
2011 (5) SA 453 (SCA); TM v NM 2014 (4) SA 575 (SCA); Olivier et al LAWSA Indigenous Law par 74; Sin-
clair assisted by Heaton 222–223; Maithufi 1992 THRHR 631–632; Jansen 2003 Journal for Juridical Science
121–126; Maithufi and Moloi 2005 De Jure 145–149; Maithufi 2013 TSAR 726–727. For criticism of the deci-
sion in Netshituka, see Heaton 2011 Annual Survey of South African Law 480–482; Bakker and Heaton 2012
TSAR 586; Buchner-Eveleigh 2012 De Jure 596; Maithufi 2015 THRHR 307.
122 Thembisile v Thembisile 2002 (2) SA 209 (T); Jansen in Rautenbach et al Introduction to Legal Pluralism in
South Africa 71; Bonthuys and Pieterse 2000 THRHR 622, 624; Maithufi 2000 THRHR 512; Bakker 2006
THRHR 68; Maithufi and Bekker 2009 Obiter 166. This was also the position in terms of the amended s
22(1) and (2) of the Black Administration Act: see the previous footnote. As s 10(1) of the Recognition of
Customary Marriages Act operates only prospectively, it does not invalidate a customary marriage that was
validly concluded during the subsistence of a civil marriage out of community of property in terms of the
Transkei Marriage Act: Kambule v Master of the High Court [2007] 4 All SA 898 (C) (also reported as Kambule
v The Master 2007 (3) SA 403 (EC)).
236 South African Family Law

The position in respect of a civil union by a party to a customary marriage is more compli-
cated. Firstly, section 8(3) of the Civil Union Act provides that a party to a customary mar-
riage “may not” enter into a civil union. As the section does not expressly refer to
competence, the nature of the invalidity of a civil union which is concluded in contravention
of this section is not as clear as is the case in respect of a civil marriage which is concluded in
violation of sections 3(2) and 10(1) of the Recognition of Customary Marriages Act. Further-
more, because the prescription in section 13(2) of the Civil Union Act that a reference to a
marriage includes a civil union does not apply to the Recognition of Customary Marriages
Act, the rule that a civil marriage which is concluded in contravention of sections 3(2) and
10(1) is void cannot simply be applied to a civil union which is concluded during the subsist-
ence of a customary marriage. However, on the same arguments advanced above in respect of
section 10(4) of the Recognition of Customary Marriages Act, it is submitted that such a civil
union is indeed void.
A second issue with regard to the capacity of customary spouses to enter into a civil union is
that the Civil Union Act does not provide for any exception to the rule in section 8(3) that a
party to a customary marriage may not enter into a civil union. Thus a customary spouse may
not even enter into a civil union with his or her customary spouse. Permitting spouses in a
customary marriage to enter into a civil marriage, but not a civil union, with each other prob-
ably constitutes an unjustifiable violation of the equality clause.
(b) The consequences of a subsequent civil marriage
If a couple who is married at customary law also enters into a civil marriage with each other,
their marriage is in community of property unless they conclude an antenuptial contract. If
the marriage is in community of property, sections 14 to 20 and section 24 of the Matrimonial
Property Act apply to it.123
Unfortunately the Recognition of Customary Marriages Act does not adequately regulate
the consequences of the interface between the couple’s customary marriage and their subse-
quent civil marriage. Section 10(2) provides as follows:
When a marriage is concluded as contemplated in subsection (1) the marriage is in community
of property and of profit and loss unless such consequences are specifically excluded in an ante-
nuptial contract which regulates the matrimonial property system of their marriage.
The memorandum which accompanied the Recognition of Customary Marriages Bill states
that clause 10(2) of the Bill (which reads like section 10(2) of the Act) “ensures that there is
no implication that the customary marriage is superseded by a civil marriage when the parties
have contracted both” and that the parties “are merely seen as converting from one set of
consequences to another”.124 However, the Act does not clearly set out the consequences of
the “conversion”. Does the “conversion” mean that the customary marriage continues to exist
with the result that the spouses are simultaneously married according to two systems of law? If
so, how are those instances when there are fundamental differences between the two systems
to be handled? For example, what if a couple entered into a customary marriage in community
of property, while their subsequent civil marriage is subject to the accrual system? In these
circumstances the patrimonial consequences of the two types of marriages differ fundamen-
tally. If one type of marriage is not to be regarded as subservient to the other, recognition
ought simultaneously to be given to both systems, but it is legally impossible to do so in a case
such as this.125
________________________

123 S 10(3) of the Recognition of Customary Marriages Act. On the difference in the wording of the English
and Afrikaans versions of this subsection, see Van Schalkwyk 2000 THRHR 481 and 493. In is submitted
above in this chapter that the inclusion of s 24 of the Matrimonial Property Act in the list is the result of a
legislative error.
124 Par 3.10.
125 In its report which preceded the Recognition of Customary Marriages Bill, the South African Law Com-
mission acknowledged “the impossibility of enforcing both common- and customary-law regimes
continued
 Chapter 17: Customary marriages 237

It is submitted that careful reading of the wording of section 10(2) reveals that, in the
above example, community of property operates until the date of the civil marriage and that
section 10(2) applies as from that date. This is so for the following reason: section 10(2)
prescribes the matrimonial property consequences in “the marriage” “[w]hen a marriage is
concluded as contemplated in subsection (1)”. Section 10(1) governs the capacity of spouses
who are married at customary law to “contract a marriage with each other under the Marriage
Act”, that is, their capacity to conclude a civil marriage. Section 10(2) therefore only deals
with the consequences of the civil marriage. Thus, in the above example, all assets acquired
before the civil marriage are governed by the rules regarding community of property, while
all assets acquired as from the date of the civil marriage are the spouses’ separate assets
subject to accrual sharing upon dissolution of the civil marriage. Adopting the same reason-
ing in respect of the other consequences of the “conversion” of a customary marriage into a
civil marriage, one concludes that the rules regulating the customary marriage and its conse-
quences operate until the civil marriage is entered into and thereafter the rules regulating
the civil marriage operate. In other words, the consequences of the customary marriage come
to an end at the date of the civil marriage, but the termination is not retroactive.126

________________________

simultaneously”: Report on Customary Marriages Project 90 par 3.2.9. On the problems arising from dual and
converted customary and civil marriages, see further South African Law Commission op cit pars 3.2 and 3.3.
126 See also Jansen in Rautenbach et al Introduction to Legal Pluralism in South Africa 72; Van Schalkwyk 2000
THRHR 481, 494, 2003 De Jure 295; Büchner-Eveleigh 2013 De Jure 894–899. See further Bonthuys and Pie-
terse 2000 THRHR 623 who are of the view that, for all intents and purposes, the existing customary mar-
riage is turned into a civil marriage.
 PART

4
MUSLIM AND HINDU MARRIAGES
 18
MUSLIM MARRIAGES

18.1 Introduction
In the previous chapter it was indicated that prior to the coming into operation of the Recog-
nition of Customary Marriages Act 120 of 1998, customary marriages were recognised only for
limited purposes because they permit polygyny and are not solemnised in terms of the Mar-
riage Act 25 of 1961. These are also the reasons why our law affords limited protection to
Muslim marriages.1
Numerous calls have been made for full recognition of Muslim marriages. In 2003, the
South African Law Reform Commission published a report on Muslim marriages.2 The report
was accompanied by a draft Bill which provided for the recognition of some Muslim marriages.
As the draft Bill was subject to a great deal of criticism an amended version, entitled the
3
Muslim Marriages Bill, 2010, was published for public comment in January 2011. The latter
4
Bill, too, has been fiercely criticised. As yet, no version of the proposed legislation has been
submitted to Parliament for approval.
In 2009, the Women’s Legal Centre brought an unsuccessful application for direct access
to the Constitutional Court to seek an order compelling the President and Parliament to
5
enact legislation recognising Muslim marriages. The court rejected the application inter alia
on the grounds that the obligation to enact legislation to fulfil constitutional rights falls on
________________________

1 See eg Ismail v Ismail 1983 (1) SA 1006 (A); Kalla v The Master 1994 (4) BCLR 79 (T), 1995 (1) SA 261 (T).
If a particular Muslim marriage is monogamous and meets the requirements of the Marriage Act, it quali-
fies as a civil marriage. In such event, the Muslim marriage and the civil marriage exist side by side, with the
civil marriage being fully recognised and the Muslim marriage receiving only limited recognition. In 2014,
more than 100 Imams were appointed as marriage officers under the Marriage Act: SANews.gov “Full Legal
Status for Muslim Marriages in South Africa”, http://www.southafrica.info/services/rights/muslim-
020514.htm (accessed 22 June 2015); Schoeman-Malan LitNet Akademies (Regte) 8 Jan 2015,
http://www.litnet.co.za/vonnisbespreking-is-die-moslemhuwelik-nou-n-erkende-huwelik/ (accessed 22 June
2015) 284–286. Monogamous Muslim marriages solemnised by these Imams qualify as civil marriages. On
dual validity of religious marriages, see further ch 1 above.
2 South African Law Reform Commission Project 106 Islamic Marriages and Related Matters Report.
3 General Notice 37 GG 33946 of 21 January 2011.
4 On the 2003 draft Bill and the 2010 Bill, see Amien in Claassens and Smythe (eds) Marriage, Land and
Custom 357; Amien in Maclean and Eekelaar (eds) Managing Family Justice 109–117, 119–122; Barratt (ed)
Persons and the Family 407–410; Manjoo in Sloth-Nielsen and Du Toit (eds) Trials and Tribulations, Trends and
Triumphs 122–127; Mbatha et al in Bonthuys and Albertyn (eds) Gender, Law and Justice 171, 180–188; Moosa
Unveiling the Mind 154–160; Moosa in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 290–296,
321, 326–354; Navsa in Sloth-Nielsen and Du Toit (eds) Trials and Tribulations, Trends and Triumphs 115–
117; Skelton and Carnelley (eds) Family Law 197–201; Gabru 2004 PELJ 9–11; Motala 2004 CILSA 327–339;
Rautenbach 2004 PELJ 5; Moosa 2009 PELJ 73–74; Bakker 2009 THRHR 400–402; Du Toit 2009 SALJ 479–
480; Denson and Carnelley 2009 Obiter 691–693; Amien 2010 International Journal of Law, Policy and the Fami-
ly 374–380; Bakker 2010 Speculum Juris 66; Domingo 2011 Obiter 382–384; Neels 2012 TSAR 486; Schoeman-
Malan LitNet Akademies (Regte) 8 Jan 2015, http://www.litnet.co.za/vonnisbespreking-is-die-moslemhuwelik-
nou-n-erkende-huwelik/ (accessed 22 June 2015) 272–274.
5 Women’s Legal Centre Trust v President of the Republic of South Africa 2009 (6) SA 94 (C).

241
242 South African Family Law

the State and not the President and Parliament alone, and that direct access to the Constitu-
tional Court was not justified. The court did not consider whether an obligation to enact
legislation to recognise Muslim marriages exists or whether such legislation is required by the
Constitution of the Republic of South Africa, 1996. Nor did it consider whether such legisla-
6
tion would be consistent with the Constitution. More recently, in Faro v Bingham, the Western
Cape Division of the High Court, Cape Town ordered the Minister of Justice and Constitu-
tional Development to file an affidavit by 15 July 2014 setting out the progress made in re-
spect of the enactment of the Muslim Marriages Bill and/or any similar legislation. This
deadline lapsed seemingly without any progress having been made in respect of the enact-
ment of the legislation. As a result, the Women’s Legal Centre has signalled its intent to
launch litigation in the Western Cape Division of the High Court, Cape Town compelling the
7
State to enact legislation recognising Muslim marriages.

18.2 Recognition of Muslim marriages

Because this book is not intended to be a comprehensive exposition of the pluralism of South
African marriage laws, the regulation of Muslim marriages by Islamic law (that is, Shari’ah) is
not discussed in this chapter.8 The focus of the chapter is the limited legal recognition of
Muslim marriages in terms of South African law.
Various Acts or sections of Acts expressly provide that they apply to religious marriages. For
example, the whole of the Births and Deaths Registration Act 51 of 1992, Domestic Violence
Act 116 of 1998 and Children’s Act 38 of 2005 apply to religious marriages.9 Other examples
are section 10A of the Civil Proceedings Evidence Act 25 of 1965 and section 195(2) of the
Criminal Procedure Act 51 of 1977, which recognise religious marriages for purposes of com-
pelling a spouse as a witness in civil and criminal proceedings; section 4(q) read with section 1
of the Estate Duty Act 45 of 1955, which exempts property accruing to a surviving spouse in a
religious marriage from estate duty; section 7 read with section 1 of the Demobilisation Act 99
of 1996, which confers a dependant’s benefit on a surviving spouse in a religious marriage;
and section 2 read with section 31(1) of the Special Pensions Act 69 of 1996, which entitles a
surviving spouse in “a marriage under any Asian religion” to a survivor’s lump-sum benefit.
These provisions apply regardless of whether the religious marriage is de facto monogamous
or polygynous.

________________________

6 [2013] ZAWCHC 159 (25 October 2013).

7 “WLC turns to courts on Muslim Marriage Bill”, http://www.vocfm.co.za/wlc-turns-to-courts-on-muslim-
marriage-bill/ (accessed 22 June 2015).
8 On Islamic marriage law, see eg Amien in Claassens and Smythe (eds) Marriage, Land and Custom 357;
Barratt (ed) Persons and the Family 405–407; Clark in Van Heerden et al (eds) Boberg’s Law of Persons and the
Family 258; Goolam in Clark (ed) Family Law Service Division O; Goolam et al in Rautenbach et al Introduction
to Legal Pluralism in South Africa 296–311; Mbatha et al in Bonthuys and Albertyn (eds) Gender, Law and Jus-
tice 158–189; Mofokeng 139–162; Moosa Unveiling the Mind ch 11; Moosa in Heaton (ed) Law of Divorce and
Dissolution of Life Partnerships 284–290, 298–325; 331–352; South African Law Commission Issue Paper 15 Pro-
ject 59 Islamic Marriages and Related Matters; Cachalia 1993 THRHR 392; Moosa 1995 Stell LR 417, 1995 Afri-
can Law Review 15; Roodt 1995 (2) Codicillus 50; Mahomed Aug 1998 De Rebus 3; Moosa 1998 Stell LR 196,
1998 SALJ 479; Cassim 1999 (1) Codicillus 2; Moosa Oct 1999 De Rebus 35; Mahomed Jan 2000 De Rebus 10;
Goolam 2001 Stell LR 199; Moodley 2001 (2) Codicillus 8; Gabru 2004 PELJ 4–9; Pienaar 2006 Stell LR 321;
Carnelley 2007 Obiter 340–341; Bakker 2008 Obiter 540–541; Denson 2009 Obiter 245–250; Moosa 2009 PELJ
67–70, 79–81; Denson and Carnelley 2009 Obiter 684–687, 689–690; Bakker 2010 Speculum Juris 66; Osman-
Hyder 2011 Stell LR 243; Carnelley and Bhamjee 2012 Obiter 489–499; Booley 2014 Law, Democracy and Devel-
opment 37; Moosa and Abduroaf 2014 Acta Juridica 174–186. On whether Islamic law should be considered
part of South African law or whether it is foreign law, see Bakker 2008 Obiter 536–540, 2009 THRHR 402–
404.
9 See s 1(2) of the Births and Deaths Registration Act 51 of 1992, the definition of “domestic relationship” in
s 1 of the Domestic Violence Act 116 of 1998 and the definition of “marriage” in s 1(1) of the Children’s
Act 38 of 2005.
 Chapter 18: Muslim marriages 243

Apart from the explicit statutory recognition referred to in the previous paragraph, the
courts have interpreted the wording of some statutory provisions to include Muslim marriages
within their ambit. Thus, in Daniels v Campbell 10 the Constitutional Court held that a surviving
spouse in a monogamous Muslim marriage qualifies as a “spouse” and “survivor” in terms of
the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of
1990. The court held that the real issue is not whether the marriage is valid; instead, the issue
is what the ordinary meaning of the word “spouse” entails. The court found that the ordinary
meaning encompasses a party to a monogamous Muslim marriage. It further stated that the
old interpretation of “spouse”, which excluded a party to a Muslim marriage, did not flow
from the courts giving the word its ordinary meaning, but “emanated from a linguistically
strained use of the word flowing from a culturally and racially hegemonic appropriation of
it”.11 The old, narrow interpretation was discriminatory and unsustainable in view of the
Constitution. The court further considered the objectives of the two Acts which were at issue,
namely the Intestate Succession Act and the Maintenance of Surviving Spouses Act, and held
that the clear purposes of the Acts would best be furthered by including surviving spouses
from monogamous Muslim marriages in the protection the Acts offer. The court therefore
concluded that the word “spouse” in the Acts and the word “survivor” in the Maintenance of
Surviving Spouses Act include Muslim spouses and surviving spouses.
In Hassam v Jacobs 12 the Cape Provincial Division of the High Court (now the Western Cape
Division of the High Court, Cape Town) extended the application of the Intestate Succession
Act and the Maintenance of Surviving Spouses Act to spouses in de facto polygynous Muslim
marriages. Van Reenen J held that the word “survivor” in the Maintenance of Surviving
Spouses Act can be applied to more than one surviving spouse without unduly straining the
language of the Act. He accordingly concluded that the Act applies to de facto monogamous
and polygynous Muslim marriages. He further found that, with the exception of section
1(4)(f ), the provisions of the Intestate Succession Act could also easily be applied to spouses
in de facto polygynous marriages. In respect of the use of the word “spouse” in section 1(4)(f )
Van Reenen J held that the section clearly contemplated only one spouse. He found the
exclusion of surviving spouses in a de facto polygynous Muslim marriage unconstitutional and
made a reading-in order that re-cast section 1(4)(f ). Because an order of constitutional inva-
lidity regarding an Act has no force unless it is confirmed by the Constitutional Court,13 Van
Reenen J’s order regarding section 1(4)(f ) had to be referred to the Constitutional Court.
The Constitutional Court held that exclusion of widows of de facto polygynous Muslim mar-
riages from the Intestate Succession Act constitutes unjustifiable unfair discrimination on the
grounds of gender, religion and marital status.14 The Constitutional Court also held that the
objective of the Act, namely to lessen surviving spouses’ dependence on family benevolence,
is frustrated by the exclusion of surviving spouses of de facto polygynous Muslim marriages.
The court found that the word “spouse” in section 1 of the Act cannot in its ordinary sense
refer to more than one spouse. Since the word as used in the section was not reasonably
capable of being understood as referring to more than one spouse, the Constitutional Court
could not adopt the same approach it did in Daniels v Campbell. Instead it had to find that
section 1 was unconstitutional. It remedied the unconstitutionality by reading in the words
“or spouses” after each use of the word “spouse” in section 1.15 As it was only the order in
respect of section 1 of the Intestate Succession Act that had to be referred to the Constitu-
tional Court, the court did not deal with the Maintenance of Surviving Spouses Act. Van
Reenen J’s inclusive interpretation of the latter Act therefore reflects the current state of the
________________________

10 2004 (7) BCLR 735 (CC), 2004 (5) SA 331 (CC), Heaton and Kruger Casebook on Family Law case [67].
11 Par 19.
12 [2008] 4 All SA 350 (C).
13 S 172(2)(a) of the Constitution of the Republic of South Africa, 1996.
14 Hassam v Jacobs 2009 (5) SA 572 (CC), Heaton and Kruger Casebook on Family Law case [68].
15 The Constitutional Court further indicated how a child’s share must be calculated and how an intestate
estate should devolve if the deceased were survived by more than one spouse.
244 South African Family Law

law in the Western Cape. It is unlikely that another division of the High Court would reach a
different conclusion should it have to decide on the meaning of the word “survivor” in the
Maintenance of Surviving Spouses Act.
Several decisions which did not turn on the interpretation of legislation have also extended
recognition to Muslim marriages for limited purposes.
In Islamic law, marriage is a contract. In Ryland v Edros 16 the court held that the contractual
obligations flowing from a de facto monogamous Muslim marriage can be recognised and
enforced as between the parties despite the fact that the marriage is potentially polygynous.
The court rejected the 1983 decision in Ismail v Ismail 17 in which the Appellate Division (now
the Supreme Court of Appeal) had held that a potentially polygynous, but de facto monog-
amous, Muslim marriage and the contractual obligations flowing from it could not be recog-
nised because polygamy violates public policy. In Ryland v Edros Farlam J held that in Ismail v
Ismail the Appellate Division had considered the views of only one group of our pluralistic
society. This was no longer acceptable. Now, an act (such as marrying under a system of
religious law which allows a man to take more than one wife) will be branded as offensive to
public policy only if it “is offensive to those values which are shared by the community at
large, by all right-thinking people in the community and not only by one section of it”.18
Farlam J held that the Appellate Division’s decision no longer precluded a court from enforc-
ing a claim emanating from the marriage contract between Muslim spouses. He stressed,
however, that his decision would not necessarily apply to contractual agreements flowing from
a de facto polygynous Muslim marriage. It is important to realise that enforcing the contractual
obligations which flow from a Muslim marriage does not mean that the marriage is equated
with a civil or customary marriage or that it is fully recognised. The decision in Ryland v Edros
simply means that the spouses in a de facto monogamous Muslim marriage are bound, as
against each other, by their contractual undertakings under Islamic law.
In Amod (born Peer) v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality
Intervening) 19 the Supreme Court of Appeal extended the dependant’s action for loss of sup-
port to the surviving spouse in a monogamous Muslim marriage. In this case, the plaintiff’s
husband was killed in a motor vehicle accident. She instituted a claim for compensation for
loss of support against the Multilateral Motor Vehicle Accidents Fund. The court held that
the decisive issue was not whether or not the plaintiff was lawfully married to the deceased,
but whether or not the deceased was under a legal duty to support the plaintiff in a relation-
ship which was worthy of recognition and protection in terms of the common law. The court
analysed the origins and evolution of the dependant’s action, and concluded that a depend-
ant who was not legally married to the deceased could have an action for compensation for
loss of support if the following requirements were met:
(1) The deceased had a legally enforceable duty to support the dependant.
(2) This duty arose from a marriage that was concluded in accordance with the tenets of a
recognised and accepted faith.
(3) The duty deserved recognition and protection for the purposes of a dependant’s action.
The court concluded that in view of the ethos of tolerance, pluralism and religious freedom
which had evidenced itself in South Africa even before the formal adoption of the interim
20
Constitution (that is, the Constitution of the Republic of South Africa 200 of 1993), the boni
mores of our society require that the contractual duty of support which flows from a Muslim
marriage should be recognised and be legally enforceable at common law. The Fund was
________________________

16 [1996] 4 All SA 557 (C), 1997 (1) BCLR 77 (C), 1997 (2) SA 690 (C).
17 1983 (1) SA 1006 (A).
18 707G.
19 [1999] 4 All SA 421 (SCA), 1999 (4) SA 1319 (SCA).
20 The final Constitution (Constitution of the Republic of South Africa, 1996) replaced the interim Constitu-
tion on 4 Feb 1997.
 Chapter 18: Muslim marriages 245

therefore ordered to compensate the plaintiff for her loss of support. In this case, too, the
court emphasised that the marriage had been de facto monogamous and that it left the issue of
whether dependants would have an action for loss of support in the case of a de facto polyg-
ynous marriage open.
In Khan v Khan 21 the Transvaal Provincial Division of the High Court (now the Gauteng
Division of the High Court, Pretoria) held that it was no longer contra bonos mores to recognise
the duty of support that results from a Muslim marriage even if the marriage is de facto polyg-
ynous. It would be blatantly discriminatory not to recognise the duty of support that arises
from a polygynous Muslim marriage while recognising it in respect of a monogamous Muslim
marriage (as had been done in Ryland and Amod). The court therefore concluded that a
spouse in a de facto polygynous Muslim marriage can use the Maintenance Act 99 of 1998 to
enforce the duty of support that arises from the marriage.
In AM v RM,22 the court granted a Muslim woman’s application for maintenance pendente
lite in terms of rule 43 of the Uniform Rules of Court23 even though the spouses had never
entered into a civil marriage. The same happened in Hoosein v Dangor.24 In both cases the wife
had instituted proceedings to have the spouses’ Muslim marriage declared valid in terms of
South African law, or to have the non-recognition of Muslim marriages declared unconstitu-
tional, and to have the spouses’ Muslim marriage dissolved by divorce in terms of the Divorce
Act 70 of 1979. The judges in both cases relied on Zaphiriou v Zaphiriou 25 in which the court
held that rule 43 can be invoked even if the validity or subsistence of the marriage is in
dispute, and that the word “spouse” in rule 43(1) must be interpreted as including a person
who alleges that he or she is a spouse but whose allegation is denied. In both cases, the judges
also pointed out that the courts have increasingly enforced the rights which flow from Muslim
marriages even though these marriages are not yet fully recognised. The difference between
AM v RM and Hoosein v Dangor is that in AM v RM the husband alleged that the couple’s Mus-
lim marriage had already been dissolved by divorce in terms of Islamic law. Revelas J found it
unnecessary to investigate whether the marriage had in fact been dissolved. She held that the
pending constitutional challenge regarding the non-recognition of Muslim marriages and the
inapplicability of the Divorce Act to such marriages encompassed a challenge to divorce by
talaq in terms of Islamic law. As a result, the status and effect of a talaq would have to be scru-
tinised by the court that decides the constitutional challenge. Therefore, the pending action
entailed the suspension of divorce by talaq until the action was decided. Thus, it was irrelevant
for purposes of the wife’s application in terms of rule 43 whether the spouses were already
divorced by talaq. Revelas J also referred to two unreported decisions in which interim
maintenance had been awarded in terms of rule 43 to a Muslim wife and a former Muslim
wife, respectively.26 She held that the entitlement to maintenance pendente lite is founded on a
general duty to provide spousal support and that a Muslim wife can therefore be awarded
interim maintenance even if the validity or subsistence of her marriage is in dispute.27
In Ismail v Ismail 28 the Eastern Cape Division of the High Court gave effect to a contract of
lease the parties to a Muslim marriage had concluded in respect of their matrimonial home,
even though the husband was already a party to a civil marriage with another woman. This
decision was based purely on the factual circumstances regarding the contract of lease. The

________________________

21 2005 (2) SA 272 (T).

22 2010 (2) SA 223 (ECP).
23 Rule 43 is discussed in ch 15 above.
24 [2010] 2 All SA 55 (WCC), 2010 (4) BCLR 362 (WCC).
25 1967 (1) SA 342 (W).
26 Cassim v Cassim (Part A) Case 3954/06 (T) 15 Dec 2006 (unreported); Jamalodeen v Moola Case 1835/06 (N)
date unknown (unreported).
27 This dictum is in keeping with the approach in Zaphiriou v Zaphiriou 1967 (1) SA 342 (W): see ch 15 above.
For criticism of the decision, see Kruuse 2009 (2) Speculum Juris 127.
28 2007 (4) SA 557 (E).
246 South African Family Law

court did not extend the right to occupy the matrimonial home (which operates in civil
marriages and civil unions)29 to Muslim spouses.
30
Finally, in Rose v Rose the Western Cape Division of the High Court, Cape Town held that
a wife in a Muslim marriage can invoke section 7(2) and (8) of the Divorce Act to claim post-
divorce maintenance and a share of her husband’s pension interest. Relying on the reasoning
32
in Daniels v Campbell 31 and Hassam v Jacobs, the court held that the central question is not
whether a marriage is valid, but whether the protection a particular Act intends to confer on a
person should be withheld from the type of relationship to which the person is a party. The
court pointed out that the term “marriage” is not defined in the Divorce Act and stated that it
would be anomalous to hold that a party to a Muslim marriage qualifies as a “spouse” for the
purposes of the Intestate Succession Act and the Maintenance of Surviving Spouses Act but a
Muslim marriage does not qualify as a marriage for the purposes of the Divorce Act. There-
fore, the court concluded that the Divorce Act could apply to the dissolution of a Muslim
marriage. As the spouses in Rose had entered into their Muslim marriage while the husband
was a party to a civil marriage with another woman, the court was also asked to decide wheth-
er this fact implied that the wife in the Muslim marriage could not claim maintenance or a
share of her husband’s pension interest when the Muslim marriage was terminated. The court
stated that the existence of the civil marriage rendered the Muslim marriage polygynous.
Relying on Hassam, the court held that distinguishing between the parties to a monogamous
Muslim marriage and a polygynous Muslim marriage amounts to unjustifiable unfair discrim-
ination. It also held that the dignity of the parties to a polygynous Muslim marriage is just as
worthy of respect as the dignity of parties to a civil marriage or a customary marriage. Conse-
quently, the court concluded that the existence of the civil marriage was not a bar to the
claims of the wife in the Muslim marriage.
It is submitted that the finding in Rose is wrong. Firstly, it is trite that civil marriages are
monogamous and that any marriage a party to an existing civil marriage concludes with
33
another person is void. This rule applies regardless of whether the purported subsequent
34
marriage is a civil, customary or Muslim marriage. Therefore, the Muslim marriage in Rose
was not simply an unrecognised marriage; it was a void marriage. Because the marriage was
void, the Divorce Act could not have applied to it since there was no marriage that could have
been terminated by divorce. For this reason alone, the case should have been dismissed.
Secondly, the case should have been dismissed because it was based on the incorrect assump-
tion that parties can pick and choose which provisions of an Act they want to apply to their
marriage. If section 7(2) and (8) of Divorce Act is to apply to the dissolution of a marriage,
the other provisions of the Act must, logically, also apply (unless, of course, some of them are
expressly or by necessary implication restricted to particular instances). Therefore, in Rose, an
order for divorce based on the grounds stipulated in section 3 of the Divorce Act should also
35
have been sought. The judgment contains no indication that this was ever done.

________________________

29 See ch 5 above on the right to occupy the matrimonial home, which is an invariable consequence of a civil
marriage. See ch 16 above on civil unions.
30 [2015] 2 All SA 352 (WCC).
31 2004 (7) BCLR 735 (CC), 2004 (5) SA 331 (CC).
32 2009 (5) SA 572 (CC).
33 See chs 3 and 4 above.
34 In so far as customary marriages are concerned the common-law rule that polygamy is irreconcilable with a
civil marriage has been embodied in s 10(4) of the Recognition of Customary Marriages Act 120 of 1998.
The section provides that a person who is a party to a civil marriage may not enter into a customary mar-
riage during the subsistence of the civil marriage. A customary marriage that is concluded in violation of s
10(4) is void. See further ch 17 above.
35 On s 3, see ch 11 above.
 Chapter 18: Muslim marriages 247

18.3 The Constitution and Muslim marriages

Those who advocate the recognition of Muslim marriages on constitutional grounds argue
that non-recognition of these marriages violates, inter alia, the right not to be subject to unfair
discrimination on the ground of religion, conscience, belief or culture, the right to dignity,
the right to freedom of conscience, religion, thought, belief and opinion, the right to culture,
and the right to choose to participate in a particular culture.36 From a sex and gender-equality
perspective it is arguable that Muslim marriages should not be recognised in their present
form, because elements of these marriages unjustifiably violate Muslim women’s rights to sex
and gender equality and to dignity. One of these elements is polygyny. However, in view of
the number of cases in which de facto polygynous Muslim marriages have received recognition
(albeit for limited purposes) and the full recognition of polygynous customary marriages, it is
improbable that the recognition of Muslim marriages will be found to be constitutionally
untenable because Muslim marriages permit polygyny. Other aspects which are said to con-
tribute to women’s inequality in a Muslim marriage are the short period for which wives are
entitled to post-divorce maintenance, the possibility of a unilateral divorce at the instance of
the husband, and the compulsory post-dissolution waiting period (idda) during which the
former wife may not remarry. It is hoped that when the proposed legislation regulating
Muslim marriages is eventually enacted, these aspects will be properly addressed.37

________________________

36 Ss 9(3), 10, 15 and 30 of the Constitution.

37 On the arguments regarding the unconstitutionality of non-recognition of Muslim marriages, and of the
provisions of the Muslim Marriages Bill, see Kalla v The Master 1994 (4) BCLR 79 (T), 1995 (1) SA 261 (T);
Ryland v Edros [1996] 4 All SA 557 (C), 1997 (1) BCLR 77 (C), 1997 (2) SA 690 (C); Daniels v Campbell 2004
(7) BCLR 735 (CC), 2004 (5) SA 331 (CC); Khan v Khan 2005 (2) SA 272 (T); Hassam v Jacobs [2008] 4 All
SA 350 (C); Hassam v Jacobs 2009 (5) SA 572 (CC); Barratt (ed) Persons and the Family 398; Goolam in
Blanpain (ed) Law in Motion 752; Goolam in Clark (ed) Family Law Service par O2; Manjoo in Sloth-Nielsen
and Du Toit (eds) Trials and Tribulations, Trends and Triumphs 126–127; Mbatha et al in Bonthuys and Alber-
tyn (eds) Gender, Law and Justice 165–169, 177–179; Mofokeng 163–167; Moosa Unveiling the Mind 154, 161;
Sinclair in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 168–169 fn 21; Sinclair assisted by
Heaton 265–266; Skelton and Carnelley (eds) Family Law 193–194; Visser and Potgieter 17; Bekker 1991
Acta Juridica 5–6; Bonthuys and Du Plessis 1995 SA Public Law 200; Du Plessis and Gouws 1996 SA Public Law
472; Goolam 1996 Journal for Juridical Science 130; Malan 1998 THRHR 300; Moosa 1998 SAJHR 508; Moosa
1998 Stell LR 196; Clark and Kerr 1999 SALJ 24; Malan Oct 1999 De Rebus 37; Goldblatt 2000 SAJHR 141–
143; Rautenbach and Du Plessis 2000 THRHR 309 et seq; Bonthuys 2002 SAJHR 41; Bonthuys 2002 SALJ 763,
775–782; Bakker 2009 THRHR 398–400; Denson 2009 Obiter 264 et seq; Denson and Van der Walt 2009 Obiter
191–196; Denson and Carnelley 2009 Obiter 693–696; Amien 2010 International Journal of Law, Policy and the
Family 364–365; Domingo 2011 Obiter 384; Neels 2012 TSAR 486; Schoeman-Malan LitNet Akademies (Regte)
8 Jan 2015, http://www.litnet.co.za/vonnisbespreking-is-die-moslemhuwelik-nou-n-erkende-huwelik/ (ac-
cessed 22 June 2015) 271.
 19
HINDU MARRIAGES

19.1 Introduction
Like Muslim marriages, Hindu marriages do not enjoy full legal recognition in South Africa;
they enjoy only the limited protection that has been afforded to them by certain Acts and
cases. Although polygyny is permitted by traditional Hindu law, it occurs very rarely
nowadays.1 Therefore, the main reason for denying Hindu marriages full recognition under
South African law is that these marriages are not solemnised in terms of the Marriage Act 25
of 1961.2 Because this book is not intended to be a comprehensive exposition of the pluralism
of South African marriage laws, the focus of the chapter falls, not on Hindu marriage law,3
but on the limited legal recognition of Hindu marriages in terms of South African law.4

19.2 Recognition of Hindu marriages

Some Acts or sections of Acts afford recognition to Hindu marriages for specific purposes by
including religious marriages in the ambit of the legislation. Several examples of such legisla-
tion are provided in the chapter on Muslim marriages.5
Apart from the explicit statutory recognition referred to in the previous paragraph, the
court in Govender v Ragavayah (Women’s Legal Centre Trust as Amicus Curiae) 6 held that the
word “spouse” in the Intestate Succession Act 81 of 1987 includes the surviving partner in a
monogamous Hindu marriage. This decision was partly based on Daniels v Campbell,7 in which
the Constitutional Court held that a surviving spouse in a monogamous Muslim marriage
qualifies as a “spouse” in terms of the Intestate Succession Act. The decision in Govender came
as no surprise. As there is no constitutionally acceptable reason for distinguishing between
the judicial recognition of Muslim and Hindu marriages for specific purposes, it is logical, if
courts have extended recognition to Muslim marriages, that a court faced with a similar case
in respect of a Hindu marriage should afford the same recognition to the Hindu marriage.
Thus, for example, spouses in Hindu marriages should also be able to institute claims in

________________________

1 Monogamy has become the approved norm for Hindu marriages, but polygyny does sometimes occur:
Gokul and Rautenbach in Rautenbach et al Introduction to Legal Pluralism in South Africa 273.
2 See also Mbatha et al in Bonthuys and Albertyn (eds) Gender, Law and Justice 158.
3 On Hindu marriage law, see Gokul and Rautenbach in Rautenbach et al Introduction to Legal Pluralism in
South Africa 273–285; Mofokeng 123–135; Rautenbach in Heaton (ed) Law of Divorce and Dissolution of Life
Partnerships 355–358, 373–385. On the application of Hindu law in South Africa, see Rautenbach in Heaton
(ed) Law of Divorce and Dissolution of Life Partnerships 368–370.
4 In 2006, the South African Law Reform Commission approved the inclusion of an investigation into the
recognition of Hindu marriages into its programme: South African Law Reform Commission Thirty Fifth
Annual Report 2007/ 2008 26. The commission has not yet published a discussion paper or draft Bill on
these marriages.
5 See ch 18 above.
6 [2009] 1 All SA 371 (D), 2009 (3) SA 178 (D), Heaton and Kruger Casebook on Family Law case [70].
7 2004 (7) BCLR 735 (CC), 2004 (5) SA 331 (CC), Heaton and Kruger Casebook on Family Law case [67].

249
250 South African Family Law

terms of the Intestate Succession Act and the Maintenance of Surviving Spouses Act 27 of
1990, claim compensation for loss of support, use the Maintenance Act 99 of 1998 to enforce
the spousal duty of support, and invoke rule 43 of the Uniform Rules of Court.8 According to
Hindu law, a marriage is a sacrament as well as a civil contract.9 To the extent that a Hindu
marriage is a contract, the contractual obligations flowing from the marriage should be
recognised and enforced as between the parties, as is the case in respect of Muslim marriages.10
Although the courts can recognise certain aspects of a Hindu marriage for certain pur-
poses, they do not have the power to declare a Hindu marriage valid or to turn it into a civil
marriage (or a civil union). In Singh v Ramparsad 11 a woman who was married in terms of
Hindu law wanted to obtain a divorce. She had married her husband in terms of the Vedic
branch of the Hindu religion which does not recognise divorce.12 Both spouses knew that
their marriage was indissoluble and they knew that their marriage would not be recognised by
South African law unless it was solemnised in terms of the Marriage Act and qualified as a civil
marriage. The wife sought an order declaring that the Marriage Act either recognised the sol-
emnisation and legal validity of religious marriages or did not preclude the recognition of the
solemnisation and legal validity of such marriages. She further sought an order declaring her
Hindu marriage to be legally valid. As an alternative, she sought an order declaring that the
word “marriage” in the Divorce Act 70 of 1979 included religious marriages and that her
Hindu marriage therefore fell within the ambit of the Act. In other words, she wanted either
to have her Hindu marriage turned into a civil marriage which could be dissolved by divorce
in terms of the Divorce Act, or to have the consequences of a civil marriage imposed on her
Hindu marriage so that she could obtain a divorce. If the relief were to be granted, she fur-
ther wanted the court to order a divorce in terms of the Divorce Act.
The action was correctly dismissed, for it was legally impossible to achieve what the wife
wanted. If a marriage is concluded in terms of religious law and also complies with the require-
ments for a civil marriage, it has dual validity.13 In such event, the civil marriage can be dis-
solved by a secular divorce order in terms of the Divorce Act, but the secular divorce order
does not free the spouses from the bonds of their religious marriage if the religion prohibits
divorce (as in the present case) or sets additional requirements for dissolution of the religious
marriage (as is the case, for example, in respect of Jewish marriages).14 Granting a secular
divorce in a purely religious marriage such as the one in Singh would be futile, because the
spouses never entered into a civil marriage and there was accordingly no marriage which
could be dissolved by a secular divorce order. Even if the court were to recognise the spouses’
religious marriage, such recognition would not turn the Hindu marriage into a civil marriage
or any other type of marriage which could be dissolved by a secular divorce order. The
________________________

8 See Daniels v Campbell 2004 (7) BCLR 735 (CC), 2004 (5) SA 331 (CC); Hassam v Jacobs [2008] 4 All SA 350
(C); Hassam v Jacobs 2009 (5) SA 572 (CC), Heaton and Kruger Casebook on Family Law case [68]; Amod (born
Peer) v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) [1999] 4 All SA 421
(SCA), 1999 (4) SA 1319 (SCA); Khan v Khan 2005 (2) SA 272 (T); Cassim v Cassim (Part A) Case 3954/06
(T) 15 Dec 2006 (unreported); Jamalodeen v Moola Case 1835/06 (N) date unknown (unreported); AM v
RM 2010 (2) SA 223 (ECP); Hoosein v Dangor [2010] 2 All SA 55 (WCC), 2010 (4) BCLR 362 (WCC) and
ch 18 above on these rights of Muslim spouses.
9 See eg Gokul and Rautenbach in Rautenbach et al Introduction to Legal Pluralism in South Africa 273;
Mofokeng 123, 128.
10 Ryland v Edros [1996] 4 All SA 557 (C), 1997 (1) BCLR 77 (C), 1997 (2) SA 690 (C).
11 2007 (3) SA 445 (D), Heaton and Kruger Casebook on Family Law case [69].
12 All the traditional branches of Hindu religious law consider marriage to be indissoluble because of its sacra-
mental nature: Singh v Ramparsad 2007 (3) SA 445 (D) pars 1, 2, 8, 9; Mofokeng 133; Nanda 1960 Northwest-
ern University Law Review 624, 627. Customary modes of divorce are recognised by various Hindu tribes, but
these modes are viewed as reflecting the practices of lower castes: Mofokeng 134; Nanda op cit 630. On the
incongruity of denial of divorce to some Hindus and recognition of customary divorce for others, and the
differences between official and unofficial Hindu law in this regard, see Holden chs 1 and 4.
13 On the dual validity of marriages, see ch 1 above.
14 See ch 11 above.
 Chapter 19: Hindu marriages 251

marriage would remain a Hindu marriage which cannot be dissolved by divorce because of
the rules of Hindu religious law.
Furthermore, by seeking to have her Hindu marriage covered by the Marriage Act, the wife
was actually asking the court to convert her purely religious marriage into a civil marriage
which could be dissolved by divorce. Neither the Marriage Act nor the Civil Union Act or any
other Act authorises conversion of a purely religious marriage into a civil marriage or a civil
union by judicial decree. Nor does the common law empower the court to convert a poten-
tially polygynous religious marriage into a civil marriage, for civil marriages are monogamous.15
It is submitted that the Constitution of the Republic of South Africa, 1996 does not allow the
court to convert a purely religious marriage into a civil marriage either, and that this is the
position even if the purely religious marriage is de facto monogamous. Section 8(3)(a) of the
Constitution empowers the court to develop the common law in order to give effect to a right
in the Bill of Rights. However, if the court were to develop the common-law definition of
“marriage” to encompass a purely religious Hindu marriage, it would be turning the Hindu
marriage into a civil marriage. Such a conversion would entail too drastic a limitation of the
right to freedom of religion to be permissible in terms of the limitation clause of the Constitu-
tion.16 The order would negate the particular religious marriage system, for it would replace
the religious marriage with a secular one.17 Such negation of the religious marriage system
could not be justified in terms of the Constitution.18
The only way in which the wife in Singh could have obtained the right to have her marriage
dissolved by divorce would have been if she had successfully attacked the non-recognition of
divorce in Hindu religious law. And, as Patel J pointed out in Singh, whether a particular reli-
gion should permit divorce is not the type of issue a South African court will entertain, since
it involves entanglement in religious doctrine, and our courts “have tried assiduously not to
get entangled in doctrinal issues”.19 Patel J correctly concluded that, on the basis of the doc-
trine of non-entanglement, “it is not for the Court to pronounce the parties as being divorced
if they elected to practice [sic] a faith and took vows which do not countenance divorce”.20

19.3 The Constitution and Hindu marriages

In the main, the arguments regarding the unconstitutionality of denying recognition to Hindu
marriages are the same as those which are advanced in respect of Muslim marriages.21 They
are therefore not repeated here.

________________________

15 See ch 3 above.
16 S 15(1) of the Constitution of the Republic of South Africa, 1996 contains the right to freedom of religion.
S 36 contains the limitation clause.
17 The Hindu marriage could not be retained intact with a civil marriage being added to it, for spouses who have
entered into one marriage only cannot, by judicial decree, be deemed to have entered into two marriages.
18 See further Heaton 2008 Stell LR 452; Kruuse 2009 (2) Speculum Juris 138, 141–142. See also Rautenbach in
Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 372.
19 Par 50.
20 Par 51.
21 On those arguments, see ch 18 above.
 PART

5
LIFE PARTNERSHIPS
 20
LIFE PARTNERSHIPS

20.1 Introduction
Since time immemorial, couples have lived together without entering into a legally recog-
nised marriage. In South Africa today, several million people live together in this way.1 Vari-
ous terms are used to signify this type of relationship, including life partnership, domestic
partnership, cohabitation, and living together.2 In this book, the term “life partnership” is
used because it has acquired a recognised meaning in South African law and is commonly
employed by the courts.3 For present purposes, a life partnership is defined as a same-sex or
heterosexual relationship which is analogous to or has many of the characteristics of a mar-
riage.4
As a general rule, a life partnership does not confer the consequences of a legally recog-
nised marriage on the life partners. However, some Acts confer specific spousal benefits on
life partners, and court decisions have extended additional spousal benefits to same-sex life
partners. Life partners can also acquire a degree of protection for their life partnership by
making use of ordinary legal rules and remedies that are available to all legal subjects, such as
contracts and wills.
Piecemeal extension of rights and duties to life partners, and self-regulation by means of
contracts, wills, and so forth clearly are unsatisfactory means for regulating life partnerships
and protecting life partners.5 The Constitutional Court has acknowledged the need to regulate
________________________

1 For statistics on the prevalence of life partnerships, see eg Smith in Heaton (ed) Law of Divorce and Dissolu-
tion of Life Partnerships 393–394; South African Law Reform Commission Project 118 Report Domestic Partner-
ships par 2.1.9; Meyersfeld 2010 CCR 274.
2 On the various names by which such relationships are known, see eg Sinclair assisted by Heaton 267–268;
Smith in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 391; South African Law Reform
Commission Project 118 Report Domestic Partnerships pars 1.4.2–1.4.5.
3 The Constitutional Court first used the term in National Coalition for Gay and Lesbian Equality v Minister of
Home Affairs 2000 (1) BCLR 39 (CC), 2000 (2) SA 1 (CC). The South African Law Reform Commission pre-
fers the term “domestic partnership”: Project 118 Report Domestic Partnerships par 1.4.5.
4 See further Smith in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 406–407, who distin-
guishes between life partnerships in a wide and a narrow sense. Most South African sources limit life part-
nerships to the relationship between two persons: see eg Schwellnus in Clark (ed) Family Law Service par N2;
Schwellnus The Legal Implications of Cohabitation in South Africa 1; Sinclair assisted by Heaton 268; South Afri-
can Law Reform Commission Project 118 Report Domestic Partnerships passim; Wille’s Principles 363; Thomas
1984 THRHR 455; Goldblatt 2003 SALJ 611. As polygynous customary marriages have been recognised (see
ch 17 above), it is clear that our law no longer considers all instances of polygamy to be contra bonos mores. A
distinction between monogamous and polygamous life partnerships is therefore probably no longer justi-
fied. However, for the sake of simplicity, this chapter focuses on monogamous life partnerships. On the
most common types of polygamous relationships arising within the context of life partnerships, see Gold-
blatt 2003 SALJ 623, 626.
5 On the problems which arise from regulating life partnerships by means of contract, agency and/or wills,
see eg Sinclair assisted by Heaton 279–283; South African Law Reform Commission Project 118 Report Domes-
tic Partnerships pars 3.1.56–3.1.60; Lind 1995 SALJ 486–487; De Vos 1996 SA Public Law 361; Clark 2002 SALJ
639; Picarra 2007 SAJHR 566–567.

255
256 South African Family Law

permanent life partnerships by means of legislation6 and has held that the narrowness of the
past recognition of only heterosexual marriage has excluded many relationships which create
obligations and have a social value which is similar to marriage.7 In view of these pronounce-
ments, it is clear that the legal position regarding life partnerships is in need of reform. Of
course, partial reform has been achieved by way of the Civil Union Act 17 of 2006, which
permits same-sex and heterosexual couples to enter into a civil union. But this Act does not
assist those who do not want all the consequences of a civil marriage to apply to their relation-
ship or do not want to adopt a family relationship model which is virtually identical to a civil
marriage.8 In 2006, the South African Law Reform Commission published a report and draft
Bill on “domestic partnerships” (which is the term it uses to refer to life partnerships).9 The
draft formed the basis of the Domestic Partnerships Bill, 2008.10 As the Bill has not yet pro-
ceeded beyond the draft phase and it is anticipated that several amendments will be made
before the proposed legislation is eventually tabled as a Bill, its provisions are not discussed in
this chapter.11 Instead, the focus falls on the current state of the law.
The discussion of the current state of the law starts with a brief exposition of the legal rules
all legally competent persons may use to govern their affairs and which are of the most rele-
vance in the context of life partnerships. Obviously, these rules are at the disposal of hetero-
sexual and same-sex life partners. This exposition is followed by a discussion of the legislative
and judicial recognition which has thus far been afforded to life partnerships. As the courts’
approach towards same-sex life partnerships differs markedly from the approach towards
heterosexual life partnerships, the two types of life partnerships are discussed under separate
subheadings. The position of heterosexual life partnerships is considered first. Then the
position of same-sex life partnerships is discussed. The chapter ends with a brief analysis of
the issue of whether the retention of specific spousal benefits for same-sex life partnerships
after the coming into operation of the Civil Union Act is constitutional.

20.2 Protection of life partners by means of ordinary legal rules

20.2.1 General
Life partners may use any of the ordinary legal mechanisms and invoke any of the ordinary
legal remedies which are available to everybody to achieve protection for their relationship
12
and for themselves. Some of these mechanisms and remedies are briefly discussed below.

20.2.2 Contract
(a) General
Life partners may use contracts to obtain a degree of recognition of their relationship. Thus
13
they may, for example, purchase assets jointly, enter into a joint venture, or jointly enter into
________________________

6 Volks v Robinson 2005 (5) BCLR 446 (CC).

7 Satchwell v President of the Republic of South Africa 2002 (9) BCLR 986 (CC), 2002 (6) SA 1 (CC) par 22. For an
empirical study of the attitudes of African and so-called “coloured” persons towards life partnerships, see
Goldblatt 2003 SALJ 610.
8 A civil union gives rise to the same consequences as a civil marriage: s 13 of the Civil Union Act.
9 Project 118 Report Domestic Partnerships.
10 Earlier, when the first version of the Civil Union Bill 26 of 2006 was submitted to Parliament, the Bill con-
tained provisions regulating domestic partnerships. These provisions were omitted from the second version
of the Bill, which subsequently became the Civil Union Act.
11 On the clauses of the draft Bill, see eg Barratt (ed) Persons and the Family 429–434; De Vos in Sloth-Nielsen
and Du Toit (eds) Trials and Tribulations, Trends and Triumphs 134–140; Skelton and Carnelley (eds) Family
Law 219–230; Smith in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 467–474; Bakker 2009
Journal for Juridical Science 10–14; Smith and Robinson 2010 (2) PELJ 31–32; Smith 2010 (3) PELJ 274–276,
287–294; Smith 2011 SALJ 563–567, 580–592; Bakker 2013 PELJ 134–139; Smith 2013 SALJ 544–548; Barratt
2015 Stell LR 119–121.
12 For a detailed discussion, see Smith in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 428–446.
13 For an example where one life partner unsuccessfully sought to prove the existence of a joint venture in
respect of immovable property owned by the other life partner, see McDonald v Young 2012 (3) SA 1 (SCA).
 Chapter 20: Life partnerships 257

lease agreements, credit agreements, and so forth. If they do so, the terms of each individual
contract determine each life partner’s rights and duties. Usually, the life partners are joint
owners of assets acquired and joint debtors in respect of obligations incurred under such
contracts.14 If they are joint owners of an asset, neither of them may exclude the other from
using and controlling the asset. However, unless they have entered into a partnership agree-
15
ment, either of them may alienate his or her share of the jointly owned asset without the
other’s consent.
If the life partnership breaks down and the life partners cannot agree on how jointly owned
assets are to be divided, either of them may invoke the actio communi dividundo, in which event
the court will either order the division it deems just, or appoint a receiver (or liquidator) to
divide the assets.16
(b) Universal partnership
Unlike spouses, life partners may enter into either of the two types of universal partnerships
17
recognised in South African law: a societas universorum bonorum (that is, a universal partner-
ship relating to present and future assets, liabilities, profits and losses) or a societas universorum
quae ex quaestu veniunt (that is, a universal partnership that is limited to the sharing of present
18
and future assets, liabilities, profits and losses acquired from commercial undertakings).
As a universal partnership is brought about by the parties’ entering into a contract, the
ordinary requirements of a contract have to be met. Thus, for example, the parties must have
animus contrahendi (that is, the intention to enter into a contract); in this instance, they must
specifically intend to create a universal partnership. In the absence of this intention, a univer-
19
sal partnership does not come into existence. For example, in Sepheri v Scanlan a woman who
lived with her fiancé for some five years claimed that a universal partnership existed between
them. She alleged that the universal partnership came about because the defendant had
20
stated that everything was “ours”. The defendant replied that his intention was that every-
thing would be shared only once the couple had married. The court found that the defend-
ant never intended to enter into a universal partnership and that the parties therefore did not
agree to create a universal partnership.

________________________

14 In the case of joint liability, each life partner may only be sued for his or her share of the debt. Some
contracts impose joint and several liability on debtors, in which case each life partner may be sued for the
full debt.
15 On the difference between a partnership and ordinary joint ownership, see Oblowitz v Oblowitz [1953] 4 All
SA 219 (C), 1953 (4) SA (C); Claassen v Quenstedt [2014] JOL 32686 (ECP).
16 On the position of life partners who are joint owners and on the actio communi dividundo, see Schwellnus in
Clark (ed) Family Law Service pars N7, N11; Schwellnus The Legal Implications of Cohabitation in South Africa
10–11, 19–21; Smith in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 429–430; Van Niekerk A
Practical Guide to Patrimonial Litigation in Divorce Actions pars 2.7.3, 3.5.3.
17 In Butters v Mncora [2012] 2 All SA 485 (SCA), 2012 (4) SA 1 (SCA) the Supreme Court of Appeal found
that historical research showed that Isaacs v Isaacs 1949 (1) SA 952 (C) was incorrect in so far as it required
the existence of a commercial undertaking.
18 Spouses may only enter into a societas universorum quae ex quaestu veniunt: see ch 8 above. On the two types of
universal partnerships our law recognises, see eg Annabhay v Ramlall 1960 (3) SA 802 (N); Sepheri v Scanlan
2008 (1) SA 322 (C); Ponelat v Schrepfer 2012 (1) SA 206 (SCA); JW v CW 2012 (2) SA 529 (NCK); EA v EC
(09/25924) [2012] ZAGPJHC 219 (25 October 2012); Butters v Mncora [2012] 2 All SA 485 (SCA), 2012 (4)
SA 1 (SCA); RD v TD 2014 (4) SA 200 (GP); Subramanien 2013 Obiter 545; Henning 2014 THRHR 231, 427.
Some authors are of the view that the decision in Butters v Mncora created a hybrid between, or a combina-
tion of, a commercial and a domestic partnership: see Smith in Heaton (ed) Law of Divorce and Dissolution of
Life Partnerships 438; Bonthuys 2015 SALJ 92. It is submitted that the Supreme Court of Appeal did not in-
tend to create a different type of universal partnership; it merely sought to make it very clear that a societas
universorum bonorum can relate to an “all-embracing venture” (par 31), ie, a venture which extends beyond a
commercial undertaking.
19 2008 (1) SA 322 (C).
20 326F–H, 338J, 339A, 339B–C.
258 South African Family Law

In addition, the specific requirements for the formation of a universal partnership must be
satisfied:21
(1) Each party must make a contribution to the partnership, that is, each party must bring
money, labour or skill into the partnership or undertake to bring something into it. In
22
Butters v Mncora, the Supreme Court of Appeal held that since a universal partnership
between life partners is not confined to a commercial undertaking, “logic dictates . . .
that the contribution of both parties need not be confined to a profit making entity”.
Consequently, a life partner who fulfils child-care and domestic responsibilities makes
the requisite contribution even if he or she does not contribute to a commercial under-
23
taking carried on by the other life partner.
(2) The venture must be carried on for the parties’ joint benefit. According to the judgment
in Butters v Mncora, this requirement is satisfied if the parties intended to share every-
thing and one life partner shared in the benefits of the other’s financial contribution
while the latter life partner shared in the benefits of the former’s fulfilment of domestic
and child-care responsibilities.
(3) The objective must be to make a profit, but the profit need not be commercial. For
24
example, in Ally v Dinath the court considered the objective of accumulating a growing
joint estate sufficient to found an allegation (at least for purposes of pleading) that the
life partners had intended to make a profit. It held that “a pure pecuniary profit motive
is not required”; the achievement of “another material gain such as a joint exercise for
the purpose of saving costs” is enough. This approach was confirmed by the Supreme
25 26
Court of Appeal in Ponelat v Schrepfer. Subsequently, in Butters v Mncora the Supreme
Court of Appeal found that an “all-embracing venture”, consisting of domestic and
commercial activities, satisfies the requirement.
27
A universal partnership can be created expressly or tacitly. In the case of a tacit universal
partnership, the existence of the partnership is inferred if the facts indicate that it is more
28
probable than not that the partnership agreement was concluded. The conduct of the
29 30
parties is decisive in this regard. In Butters v Mncora it was held that the required conduct
need not exceed that which is ordinarily expected of a wife. The court pointed out that it is
fairly clear what can ordinarily be expected of a wife because the spousal relationship “is
31
governed by well-established standards, both legally and socially imposed”. In respect of life

________________________

21 See eg Rhodesia Railways v Commissioner of Taxes 1925 AD 438; Mühlmann v Mühlmann 1981 (4) SA 632 (T)
(confirmed on appeal: 1984 (3) SA 102 (A)); Pezzutto v Dreyer 1992 (3) SA 379 (A); Zulu v Zulu 2008 (4) SA
12 (D); Ponelat v Schrepfer 2012 (1) SA 206 (A); Butters v Mncora [2012] 2 All SA 485 (SCA), 2012 (4) SA 1
(SCA); Cloete v Maritz (6222/2010, 16433/2012) [2014] ZAWCHC 108 (13 June 2014); RD v TD 2014 (4)
SA 200 (GP).
22 [2012] 2 All SA 485 (SCA), 2012 (4) SA 1 (SCA), Heaton and Kruger Casebook on Family Law case [73] par
19.
23 See also Cloete v Maritz (6222/2010, 16433/2012) [2014] ZAWCHC 108 (13 June 2014).
24 1984 (2) SA 451 (T) 455.
25 2012 (1) SA 206 (A).
26 Par 31.
27 Ally v Dinath 1984 (2) SA 451 (T); Ponelat v Schrepfer 2012 (1) SA 206 (SCA); Butters v Mncora [2012] 2 All SA
485 (SCA), 2012 (4) SA 1 (SCA). Bonthuys 2015 SALJ 92–93 criticises the court in Sepheri v Scanlan 2008 (1)
SA 322 (C) and in Ponelat v Schrepfer for not treating oral statements to the effect that the life partners in
these cases would share in the parties’ accumulated assets as sufficient evidence of express, oral agree-
ments. She argues that by evaluating the agreements in view of the rules relating to a tacit universal part-
nership, the court placed an additional evidentiary burden on the plaintiffs.
28 See eg Mühlmann v Mühlmann 1984 (3) SA 102 (A); Sepheri v Scanlan 2008 (1) SA 322 (C); Ponelat v Schrepfer
2012 (1) SA 206 (SCA); Butters v Mncora [2012] 2 All SA 485 (SCA), 2012 (4) SA 1 (SCA).
29 See eg Ally v Dinath 1984 (2) SA 451 (T); Butters v Mncora [2012] 2 All SA 485 (SCA), 2012 (4) SA 1 (SCA).
30 [2012] 2 All SA 485 (SCA), 2012 (4) SA 1 (SCA).
31 Par 29.
 Chapter 20: Life partnerships 259

partners, in contrast, a norm has not yet been legally and socially established. Therefore it is
not possible to state what is ordinarily expected of a life partner.
If life partners form a universal partnership, they jointly own the partnership assets in undi-
vided, but not necessarily equal, shares. The proportion in which they own the assets is de-
termined by the partnership agreement. In the absence of an express provision regarding
their respective shares, each life partner’s contribution to the partnership determines the
extent of his or her share of the partnership assets.32
The issue of which assets fall into the partnership is likewise determined by the partners’
agreement. In the absence of a clear agreement, the partnership assets encompass all property
acquired during the subsistence of the partnership. In certain circumstances, property a life
partner owned prior to the inception of the partnership may be partnership assets.33
During the subsistence of the universal partnership, the ordinary rules of the law of part-
nership apply. Thus, for example, one of the partners may not alienate partnership property
without the other partners’ consent, use partnership property as security for a personal debt,
or entirely exclude the other partner from controlling or using partnership property.
In the absence of a clear agreement to the contrary, termination of the universal partner-
ship is also governed by the ordinary rules of the law of partnership. As these rules provide
that a former partner may not remain in exclusive possession and occupation of partnership
assets after the termination of the partnership unless the partners have agreed that this may
be done (or unless, in the case of termination by the death of one of the life partners, the
deceased partner bequeathed the property to the surviving partner), a life partner may be
ordered to vacate immovable property owned by the universal partnership if he or she has
been requested to vacate the property and has refused to do so.34 However, if the life partner
who remains in occupation of the property has never formally been requested to vacate the
property, his or her occupation of the property is not unlawful. Consequently, he or she is not
35
liable for damages arising from unlawful occupation.
(c) Life partnership contract
Life partners may regulate any or all of their rights and duties as against each other by means
of a contract. The contract may be limited to regulating a single aspect, such as the duty of
support between the parties, or may be more extensive in scope. If the contract regulates
several legal aspects of the relationship, it is usually called a life partnership contract (cohabi-
tation contract or domestic partnership contract).
The contract may be concluded expressly or tacitly. Proving the existence of a tacit contract
may be difficult as the court must be satisfied that the conduct of the parties was such that it
36
justifies an inference that they intended to, and did, contract on the terms alleged.
The contract may contain any provision which is not illegal, contra bonos mores, or contrary
to public policy. Life partners may, for example, undertake to maintain each other while the
relationship lasts; agree on post-separation maintenance (which is sometimes called “palimo-
ny”); deal with ownership of assets acquired before the inception of the life partnership and
________________________

32 See eg Isaacs v Isaacs 1949 (1) SA 952 (C); Mühlmann v Mühlmann 1981 (4) SA 632 (T) (confirmed on
appeal: 1984 (3) SA 102 (A)).
33 On the extent of the property falling within the partnership, see V (also known as L) v De Wet 1953 (1) SA
613 (O); Ally v Dinath 1984 (2) SA 451 (T); Schwellnus in Clark (ed) Family Law Service pars N5, N6; Schwell-
nus The Legal Implications of Cohabitation in South Africa 8–10; De Bruin and Snyman 1998 SA Merc LJ 368. In
Cloete v Maritz (6222/2010, 16433/2012) [2014] ZAWCHC 108 (13 June 2014) the Western Cape Division
of the High Court, Cape Town adopted the view that if one of the life partners persistently declines to assist
in determining the value of some of the assets belonging to the partnership when the partnership termi-
nates, the court may accept the values the other life partner provides and use them to determine the value
of the assets of the universal partnership.
34 Botha v Deetlefs 2008 (3) SA 419 (N).
35 Cloete v Maritz (6222/2010, 16433/2012) [2014] ZAWCHC 108 (13 June 2014).
36 McDonald v Young 2012 (3) SA 1 (SCA); see also the sources cited in fns 28 and 29 above.
260 South African Family Law

during its subsistence; agree on liability for household necessaries; agree on occupation of the
common home during the subsistence of the life partnership and after its termination; and so
forth.37 They may, however, not agree that their life partnership will have all the consequenc-
es of a marriage or that their life partnership can only be dissolved in terms of the Divorce Act
70 of 1979.
In the past, there was some uncertainty about the enforceability of contracts which regulate
the legal consequences of the relationship of life partners. It was argued that such contracts
might be unenforceable because they further immorality, reward extramarital sex and/or
undermine marriage. In view of the increasing recognition afforded to life partnerships, this
argument clearly no longer holds good.
As a rule, a contract binds only the parties to it. However, if life partners agree that one of
them will support the other, this agreement is protected by way of the common-law action for
damages for loss of support if a third party kills the life partner who incurred the contractual
duty of support. The Supreme Court of Appeal extended the common-law action, first to
38
surviving same-sex life partners, and then to surviving heterosexual life partners.
(d) Agency
Either life partner may appoint the other as his or her agent and, for example, confer the
power to purchase household necessaries or to purchase assets in the parties’ joint name, on
that life partner.39

20.2.3 Estoppel
If the life partners hold themselves out to third parties as being married, estoppel can be used
to prevent one of them from alleging that he or she is not liable for debts relating to house-
hold necessaries the other life partner purchased on credit.40

20.2.4 Will
Life partners may appoint each other as heirs in their respective wills or in a joint will.

20.2.5 Unjustified enrichment

If one life partner has been enriched at the other’s expense, the impoverished life partner
can, in certain circumstances, institute an enrichment claim. However, as our law does not yet
recognise a general enrichment claim,41 enrichment liability is usually of limited use to life
42
partners.

________________________

37 On the contents of a life partnership contract, see Barratt (ed) Persons and the Family 422–423; Schwellnus
in Clark (ed) Family Law Service par N22; Schwellnus The Legal Implications of Cohabitation in South Africa 43–
46; Sinclair assisted by Heaton 281 fn 54; Smith in Heaton (ed) Law of Divorce and Dissolution of Life Partner-
ships 432–436; South African Law Reform Commission Project 118 Report Domestic Partnerships pars 3.1.38–
3.1.39; Thomas 1984 THRHR 457–459; Hutchings and Delport 1992 De Rebus 125; Singh 1996 CILSA 321.
38 Du Plessis v Road Accident Fund 2003 (11) BCLR 1220 (SCA), 2004 (1) SA 359 (SCA); Paixão v Road Accident
Fund [2012] 4 All SA 262 (SCA), 2012 (6) SA 377 (SCA). On these cases, see below in this chapter.
39 Thompson v Model Steam Laundry Ltd 1926 TPD 674; see also Clark in Van Heerden et al (eds) Boberg’s Law of
Persons and the Family 254–255; Sinclair assisted by Heaton 284 fn 64; Hahlo 1972 SALJ 324.
40 See eg Sinclair assisted by Heaton 447; Van der Vyver and Joubert 550–551. Hahlo 1972 SALJ 324 submits
that the exceptio doli, rather than estoppel, may be the legal basis for liability in such instances. Singh 1996
CILSA 319 states that a life partner may rely on proprietary estoppel. This is true of some foreign systems,
such as English law: see eg Sinclair assisted by Heaton 275 fn 26. South African law, however, does not rec-
ognise the doctrine of estoppel as a means of acquiring ownership: see Sonnekus’s analysis in Die Estoppel-
leerstuk in die Suid-Afrikaanse Reg 209–216. Therefore, Singh’s view is not supported: see also Smith in
Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 444; Heaton 2005 THRHR 667.
41 Nortjé v Pool 1966 (3) SA 96 (A).
42 See further Du Plessis Unjustified Enrichment 188; Smith in Heaton (ed) Law of Divorce and Dissolution of Life
Partnerships 442–444.
 Chapter 20: Life partnerships 261

20.3 Legislative and judicial recognition of life partnerships

20.3.1 Heterosexual life partnerships
43
Several Acts treat heterosexual life partners and spouses alike for specific purposes. The
following are examples of such legislative provisions: Section 21(13) of the Insolvency Act 24 of
1936 includes a heterosexual life partner in the definition of a spouse. Thus, if one hetero-
sexual life partner becomes insolvent, the other’s estate also vests in the Master of the High
Court and thereafter in the trustee of the insolvent estate. However, if the 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.44 The Compensation for Occupational Inju-
ries and Diseases Act 130 of 1993 enables a person who was living with an employee as “wife
and husband” and who was wholly or partly financially dependent on the employee at the
time of the accident, to claim compensation as the employee’s dependant if the employee was
killed in the course of his or her employment. However, this applies only if the employee was
unmarried.45
Some Acts extend the same protection to heterosexual and same-sex life partners, and treat
both groups like spouses. For example, the Estate Duty Act 45 of 1955 exempts property
accruing to a surviving life partner from his or her deceased life partner’s estate from estate
duty.46 The Pension Funds Act 24 of 1956 includes a permanent life partner in the definition
of “spouse”.47 The Income Tax Act 58 of 1962 exempts donations between life partners from
donations tax.48 The Maintenance Act 99 of 1998 applies in respect of the legal duty of any
person to maintain any other person irrespective of the nature of the relationship giving rise
to the duty of support.49 Thus, heterosexual and same-sex life partners who have agreed on a
duty of support can use the provisions of the Act to enforce that duty. The Domestic Violence
Act 116 of 1998 affords the same protection against domestic violence to spouses and all life
partners (and indeed to many other people in domestic relationships).50 In respect of renting
property, the Rental Housing Act 50 of 1999 protects life partners from unfair discrimination
on the ground of their marital status or sexual orientation.51 Thus, if either life partner wants
to rent property, the property owner may not refuse to let the property to him or her because
he or she is involved in a life partnership or is, for example, heterosexual or bisexual. Nor
may the property owner for any of these reasons charge the life partner a higher rent or
impose more onerous conditions or obligations than he or she would otherwise have done.
The same applies if life partners want to rent the property jointly.
Other examples of benefits which are nowadays usually conferred on heterosexual life part-
ners are medical scheme benefits and job-related benefits. The rules of each individual scheme
or fund determine who qualify as members and members’ dependants or beneficiaries.
Likewise, the terms of each individual insurance policy determine whether a heterosexual life
partner is covered by the particular policy. For example, if a policy excludes cover in respect
of injury inflicted on “a member of the policy holder’s family”, a heterosexual life partner falls
within the ambit of the exclusion.52
________________________

43 The Divorce Act is not among these Acts. Therefore, eg, life partners cannot share in each other’s pension
interests when their relationship comes to an end. Escott-Watson April 2012 De Rebus 25 is of the view that
this position amounts to unfair discrimination.
44 Chaplin v Gregory 1950 (3) SA 555 (C).
45 S 22(1) read with s 1.
46 S 4(q) read with s 1.
47 S 1.
48 S 56(1)(b) read with s 1.
49 S 2(1). The Maintenance Act 99 of 1998 is discussed in ch 5 above.
50 S 4(1) read with s 1. The Domestic Violence Act 116 of 1998 is discussed in ch 21 below.
51 S 4(1).
52 Farr v Mutual & Federal Insurance Co Ltd 2000 (3) SA 684 (C). Although Farr concerned a same-sex life
partner, the court seems to have assumed that a heterosexual life partner would qualify as “a member of
the policyholder’s family”, as it held that an interpretation which limited the phrase to heterosexual life
partners would constitute unfair discrimination.
262 South African Family Law

Thus far, the courts have been unwilling to extend spousal benefits to heterosexual life
partners because the so-called “choice argument” applies to these life partners as a result of
the decision in Volks v Robinson. 53 In Volks the Constitutional Court was confronted with the
issue of whether to confirm an order the Cape Provincial Division of the High Court (now the
Western Cape Division of the High Court, Cape Town) had made that the exclusion of
heterosexual life partners from the ambit of the Maintenance of Surviving Spouses Act 27 of
199054 was unconstitutional on the grounds that it constituted unjustifiable unfair discrimina-
tion and unjustifiably violated the right to dignity.55 The majority of the judges in the Consti-
tutional Court upheld an appeal against the High Court’s decision. They concluded that it
was inappropriate posthumously to impose a duty of support on a life partner’s estate while
the life partner did not have an ex lege duty to support his or her heterosexual life partner
while still alive. They held that differentiating between a spouse and a heterosexual life
partner by excluding the heterosexual life partner from a statutory maintenance claim against
the estate of his or her deceased life partner in circumstances in which a spouse would have
had such a claim does not constitute unfair discrimination, as the law may legitimately distin-
guish between spouses and heterosexual life partners. Although the Bill of Rights56 does not
explicitly contain the right to marry and found a family, section 15(3)(a)(i) of the Constitu-
tion of the Republic of South Africa, 1996 recognises marriage as an institution.57 Further-
more, the Constitutional Court has in the past recognised that marriage and family are
important social institutions.58 Marriage is also recognised internationally. In view of this
recognition, the majority concluded that the law may distinguish between married and un-
married people and accord benefits to married people which it denies to unmarried people.
The majority further held that the denial of the statutory right to claim maintenance does not
violate the surviving life partner’s right to dignity, as a life partner’s dignity is not impaired by
“simply [being] told that there is a fundamental difference between her relationship and a
marriage relationship in relation to maintenance”.59 The majority decision has been stridently
criticised for its narrowly conceived model of choice and personal autonomy and its failure to
grasp the context within which choices are made, its unquestioning preference for marriage,
and its failure properly to consider the functional similarity of marriage and life partnerships
and to apply substantive equality.60 Hopefully, the Constitutional Court will change its stance
when next an opportunity to do so arises.
The Supreme Court of Appeal has since afforded relief to surviving heterosexual life part-
ners by extending the common-law action for damages for loss of support to them. This
61
common-law action is a sui generis remedy that is not premised on a valid marriage. There-
fore, it does not constitute a spousal benefit and is not subject to the choice argument that
62
reigned supreme in Volks v Robinson. In Amod (born Peer) v Multilateral Motor Vehicle Accidents
________________________

53 2005 (5) BCLR 446 (CC), Heaton and Kruger Casebook on Family Law case [71]. For adaptations of and
alternatives to the choice model, see Smith 2010 (3) PELJ 506; Coetzee Bester and Louw 2014 PELJ 2950.
54 On this Act, see ch 10 above.
55 Ss 9(3), 10 and 36 of the Constitution.
56 Ie ch 2 of the Constitution.
57 S 15(3)(a)(i) permits legislation recognising marriages concluded under any tradition or a system of reli-
gious, personal or family law.
58 See Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 2000
(8) BCLR 837 (CC), 2000 (3) SA 936 (CC); Du Toit v Minister for Welfare and Population Development 2002
(10) BCLR 1006 (CC), 2003 (2) SA 198 (CC).
59 Par 62.
60 See eg De Vos in Sloth-Nielsen and Du Toit (eds) Trials and Tribulations, Trends and Triumphs 131–134;
Cooke 2005 SALJ 542 et seq; Lind 2005 Acta Juridica 108 et seq; Wildenboer 2005 SA Public Law 459 et seq;
Schäfer 2006 SALJ 640–644; Albertyn 2007 SAJHR 266–268; Pieterse 2008 SAJHR 410–412; Kruuse 2009
SAJHR 384; Smith 2010 PELJ 238 et seq; Meyersfeld 2010 CCR 280 et seq; Barnard-Naudé and De Vos 2010 SA
Public Law 223–224; Bonthuys 2015 SALJ 76–77.
61 See eg Santam Bpk v Henery 1999 (3) SA 421 (SCA); Paixão v Road Accident Fund [2012] 4 All SA 262 (SCA),
2012 (6) SA 377 (SCA).
62 While the decision in Volks stands, it will constitute an obstacle to life partners who allege that the law
unfairly discriminates between them and spouses in a valid marriage in respect of a spousal benefit.
continued
 Chapter 20: Life partnerships 263

Fund (Commission for Gender Equality Intervening) 63 the action was extended to surviving spouses
in monogamous Muslim marriages. In Amod the Supreme Court of Appeal held that the
decisive issue was not whether or not the plaintiff was lawfully married to the deceased, but
whether or not the deceased had a legal duty to support the plaintiff in a relationship which
was worthy of recognition and protection in terms of the common law. In Du Plessis v Road
64
Accident Fund the Supreme Court of Appeal subsequently applied the same test to same-sex
life partnerships and extended the action to surviving same-sex life partners. In Paixão v Road
65
Accident Fund the action was eventually also extended to a surviving heterosexual life partner
66
whose deceased life partner had undertaken to maintain her. The court emphasised that
although Volks had established that life partners do not have an ex lege duty of support towards
one another, a duty of support could be created contractually and that this duty was worthy of
protection in respect of heterosexual life partners.

20.3.2 Same-sex life partnerships

As indicated under the previous subheading, some Acts afford spousal protection to hetero-
sexual life partners and same-sex life partners. Further, like heterosexual life partners, same-
sex life partners now usually enjoy the same benefits as spouses in terms of the rules of medi-
cal schemes and job-related benefit schemes. In respect of medical schemes, it should be
noted that the Medical Schemes Act 131 of 1998 provides that a scheme may not be regis-
tered if its rules unfairly discriminate against anyone on the ground of, inter alia, sexual
orientation.67 Prior to the coming into operation of the Act, the constitutionality of the rules
and regulations of the police medical scheme, which allowed only the legal spouse, widow or
widower and the child of a member of the police force to be registered as the member’s
dependant, arose in Langemaat v Minister of Safety and Security.68 Roux J held that a dependant
is someone who relies upon another for maintenance. This includes a same-sex partner. He
concluded that the effect of the scheme’s rules and regulations was to exclude many de facto
dependants of members of the police force. This exclusion amounted to discrimination
against the dependants as well as the members of the police force who would have to find the
financial means to pay for the medical care of their excluded dependants. He declared this
situation unconstitutional and ordered the chairperson of the police medical scheme to
reconsider the application for registration of the police officer’s lesbian life partner as her
dependant.
Other judgments handed down before the coming into operation of the Civil Union Act
also conferred protection on same-sex life partnerships. In Satchwell v President of the Republic of
South Africa 69 certain sections of the Judges’ Remuneration and Conditions of Employment
Act 88 of 1989 were declared unconstitutional and invalid in so far as they denied benefits
which were afforded to a judge’s spouse, to a judge’s same-sex life partner. The Constitutional
Court declared that those sections constituted unjustifiable unfair discrimination on the

________________________

Consequently, the extension of the dependant’s action may be where the road ends for such life partners:
Smith and Heaton 2012 THRHR 484; see also Smith in Heaton (ed) Law of Divorce and Dissolution of Life
Partnerships 464.
63 [1999] 4 All SA 421 (SCA), 1999 (4) SA 1319 (SCA). On this case, see further ch 18 above.
64 2004 (1) SA 359 (SCA). On this case, see also below in this chapter.
65 2012 (6) SA 377 (SCA).
66 Earlier, in Verheem v Road Accident Fund 2012 (2) SA 409 (GNP), the Gauteng North Division of the High
Court (now the Gauteng Division of the High Court, Pretoria) had likewise permitted a surviving partner in
a heterosexual life partnership to institute a claim for loss of support against the Road Accident Fund.
However, several aspects of the decision are open to criticism: see Smith and Heaton 2012 THRHR 472.
67 S 24(2)(e).
68 [1998] 2 All SA 259 (T), 1998 (4) BCLR 444 (T), 1998 (3) SA 312 (T). Although most commentators wel-
come the outcome of the decision, many are justifiably critical of the rationes decidendi: see eg Nthai Oct
1998 De Rebus 45; Van der Walt 1998 Obiter 193; Louw 1999 SAJHR 393.
69 2002 (9) BCLR 986 (CC), 2002 (6) SA 1 (CC).
264 South African Family Law

ground of sexual orientation70 against same-sex life partners who lived in a relationship
similar to marriage, which includes having accepted a duty of support. It held that the sec-
tions should be read as though they conferred benefits on a judge and his or her spouse or
“partner in a permanent same-sex partnership in which the partners have undertaken recip-
rocal duties of support”. The Constitutional Court emphasised that the equality clause71 does
not require spousal benefits to be extended to same-sex partners who have not undertaken a
duty of support. The Transvaal Provincial Division of the High Court (now the Gauteng Local
Division of the High Court, Pretoria)72 had earlier declared the particular sections of the
Judges’ Remuneration and Conditions of Employment Act as well as certain regulations
issued in terms of the Act invalid on the ground that they constituted unjustifiable unfair
discrimination based on marital status and sexual orientation. As the Constitution only
requires a declaration of unconstitutionality of a statutory provision to be confirmed by the
Constitutional Court,73 the Constitutional Court’s decision was restricted to the provisions of
the Act.
After the judgments by the Transvaal Provincial Division and the Constitutional Court were
handed down, the 1989 Judges’ Remuneration and Conditions of Employment Act and the
regulations issued in terms of that Act were replaced by the Judges’ Remuneration and
Conditions of Employment Act 47 of 2001 and its attendant regulations. The main difference
between the two Acts was that Constitutional Court judges were brought within the ambit of
the 2001 Act. The 2001 Act and its regulations still did not afford benefits to a judge’s same-
sex life partner. This omission was also challenged by Satchwell J. She was granted direct
access to the Constitutional Court and therefore did not first have to approach the High Court
for an order regarding the constitutionality of the provisions. The Constitutional Court74
declared the provisions unconstitutional and made a similar reading-in order to that which it
had made in the first Satchwell decision. Because the Constitutional Court was the court of
first (and final) instance to hear the matter, it also declared the regulations issued in terms of
the 2001 Act unconstitutional and made a reading-in order in respect of them.
In National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 75 the denial of ex-
emptions regarding immigration permits to foreigners who are same-sex partners of perma-
nent South African residents was declared unconstitutional on the ground that it constituted
unjustifiable unfair discrimination on the grounds of sexual orientation and marital status,
and also violated same-sex partners’ right to dignity unjustifiably.76 Section 25(5) of the Aliens
Control Act 96 of 1991 expressly permitted granting such exemptions to foreign spouses and
dependent children of permanent South African residents. Once again, the Constitutional
Court corrected the defect in the legislation by reading in words – in this case, “partner, in a
permanent same-sex partnership”.77
In Du Plessis v Road Accident Fund 78 the Supreme Court of Appeal extended the common-
law action for damages for loss of support to a surviving same-sex life partner whose deceased
same-sex life partner had undertaken to maintain him.
In Farr v Mutual & Federal Insurance Co Ltd 79 the court held that the phrase “a member of
the policy holder’s family” in an insurance policy includes the policyholder’s long-standing

________________________

70 Ss 9(3) and 36 of the Constitution.

71 S 9 of the Constitution.
72 Satchwell v President of the Republic of South Africa 2001 (12) BCLR 1284 (T).
73 Ss 167(5) and 172(2)(a) of the Constitution.
74 Satchwell v President of the Republic of South Africa 2004 (1) BCLR 1 (CC), 2003 (4) SA 266 (CC).
75 2000 (1) BCLR 39 (CC), 2000 (2) SA 1 (CC).
76 Ss 9(3), 10 and 36 of the Constitution.
77 The Aliens Control Act 96 of 1991 has since been repealed by the Immigration Act 13 of 2002.
78 2003 (11) BCLR 1220 (SCA), 2004 (1) SA 359 (SCA).
79 2000 (3) SA 684 (C). In Bezuidenhout v ABSA Versekeringsmaatskappy Bpk Case 40688/2000, 26 Feb 2008 (T)
(unreported), a similar claim of a passenger was dismissed on a differently worded clause of an insurance
policy.
 Chapter 20: Life partnerships 265

same-sex life partner. As the particular insurance policy excluded liability in respect of a
member of the policyholder’s family who normally resides with him or her, the consequence
of the inclusion of the policyholder’s same-sex life partner was that the insurer was not liable
to indemnify the policyholder for injuries his same-sex life partner sustained in a motor
vehicle accident.
Same-sex life partners have also received recognition and protection as parents. In J v Dir-
ector General, Department of Home Affairs 80 lesbian life partners had twins as a result of assisted
reproduction. The twins were conceived via in vitro fertilisation of the ova of one of the
women with donor sperm. The fertilised ova were implanted in the other woman, who gave
birth to the children. The women wanted to have the twins registered as their children, with
the birth mother being indicated as their “mother” and the other woman as their “parent”.
The Director-General of Home Affairs refused to register the children’s birth in this manner,
whereupon the women applied to the Durban and Coast Local Division of the High Court
(now the KwaZulu-Natal Local Division of the High Court, Durban) for an order directing the
director-general to do so. They also attacked the constitutionality of the now repealed section
5 of the Children’s Status Act 82 of 1987. This section, inter alia, entailed that children who
were born as a result of artificial fertilisation were children born of married parents if the
birth mother was married and both spouses consented to the artificial fertilisation, but not if
she was a partner in a life partnership. The court ordered, inter alia, the director-general to
register the children’s birth reflecting the birth mother as the children’s mother and her
lesbian life partner as the children’s parent. The court also declared that the birth mother’s
lesbian life partner was a natural parent and guardian of the children. The court further
found section 5 of the Children’s Status Act to be unconstitutional. The Constitutional Court
confirmed the declaration of unconstitutionality. It found that section 5 discriminated unfair-
ly against same-sex life partners on the ground of their sexual orientation, and that the
discrimination could not be justified. It ordered the unconstitutionality to be cured inter alia
by striking out the word “married” and reading in the phrase “or permanent same-sex life
partner” in several places in the section. Thus the outcome of the decision was that a child
born as a result of artificial fertilisation of a lesbian life partner was deemed to be a child born
of married parents. The Children’s Act81 subsequently repealed the whole of the Children’s
Status Act, but section 40 of the Children’s Act re-enacted the unamended section 5 of the
Children’s Status Act. Section 40 may therefore be open to the same constitutional challenge
that led to the declaration of unconstitutionality of section 5 of the Children’s Status Act.
However, in accordance with the choice argument which held sway in Volks v Robinson 82 it
might be argued that section 40 is not unconstitutional because same-sex couples now have
the option of entering into a legally recognised civil union and should be denied additional
83
protection.
In Du Toit v Minister for Welfare and Population Development 84 the Constitutional Court de-
clared sections 17(a), 17(c) and 20(1) of the Child Care Act 74 of 1983 and section 1(2) of
the Guardianship Act 192 of 1993 unconstitutional to the extent that they failed to make pro-
vision for same-sex life partners as adoptive parents. The court found that the impugned sec-
tions unjustifiably limited the right not to be subject to unfair discrimination on the ground
of sexual orientation, and the right to dignity. It further found that section 17(a) and (c) of
the Child Care Act and section 1(2) of the Guardianship Act violated section 28(2) of the

________________________

80 2003 (5) BCLR 463 (CC).

81 S 313 read with schedule 4.
82 2005 (5) BCLR 446 (CC). On this decision, see above in this chapter. On the constitutionality of the reten-
tion of spousal benefits for same-sex life partners after the coming into operation of the Civil Union Act,
see below in this chapter.
83 See also Heaton in Gerber and Sifris (eds) Current Trends in the Regulation of Same-Sex Relationships 117.
Smith in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 449 submits that the choice argument
should not play a role in matters dealing with children and that s 40 of the Children’s Act should therefore
be broadened to encompass all permanent life partners.
84 2002 (10) BCLR 1006 (CC), 2003 (2) SA 198 (CC).
266 South African Family Law

Constitution, as they failed to accord paramountcy to the child’s best interests. The court read
words into the Acts to bring same-sex life partners within the ambit of the sections. The out-
come of the decision was that same-sex life partners could jointly adopt a child and that one
same-sex life partner could adopt the other’s child without the legal relationship between the
parent and his or her child being terminated. In both instances, the same-sex life partners
were the joint guardians of the child after the adoption. The Children’s Act has since re-
pealed the Child Care Act and the Guardianship Act.85 Section 231(1)(a) of the Children’s
Act permits partners in a “permanent domestic life-partnership” jointly to adopt a child and
section 231(1)(c) permits a permanent domestic life partner to adopt the child of his or her
86
life partner. However, an adoption order terminates all parental responsibilities and rights
between the child and his or her parent, unless the adoption order or a court-approved post-
adoption agreement provides otherwise.87 In Centre for Child Law v Minister of Social Develop-
88
ment the court emphasised this exception and held that, failing exceptional circumstances, it
will be in the best interests of an adopted child not to terminate the parental responsibilities
and rights of his or her biological parent if the biological parent is the spouse, civil union
partner, or life partner of the person who is adopting the child.
In Gory v Kolver (Starke Intervening) 89 the exclusion of same-sex life partners from intestate
inheritance from each other’s deceased estate in terms of the Intestate Succession Act 81 of
1987 was declared unconstitutional. The Constitutional Court pointed out that section 1(1)
of the Intestate Succession Act confers rights of intestate succession on spouses while with-
holding these rights from same-sex life partners. The court held that, in view of the fact that
same-sex life partners could not enter into a legally recognised marriage, their exclusion from
intestate inheritance rights in respect of each other’s estate amounted to unfair discrimina-
tion on the ground of sexual orientation, which falls foul of section 9(3) of the Constitution.
The court further held that, in view of the recent South African jurisprudence on permanent
same-sex life partnerships, the exclusion of surviving partners in permanent same-sex life
partnerships in which the partners had undertaken reciprocal duties of support violated the
rights to equality and dignity. The court accordingly declared section 1(1) unconstitutional
and made a reading-in order to correct the unconstitutionality.

20.3.3 Determining whether a life partnership has come into existence

Determining whether a life partnership has come into existence can be a tricky affair, for the
courts have adopted an inconsistent approach in cases in which they afforded spousal benefits
to same-sex life partners. In the majority of the cases, the issue of whether the life partners
had undertaken a duty of support was considered to be determinative – especially if the
specific spousal benefit had financial implications. Thus, in Langemaat v Minister of Safety and
Security,90 both decisions in Satchwell v President of the Republic of South Africa,91 Du Plessis v Road
Accident Fund 92 and Gory v Kolver (Starke Intervening) 93 the existence of a duty of support was
considered essential. However, in Du Toit v Minister for Welfare and Population Development 94 the
existence of a duty of support between the life partners was not taken into account, and in J v

________________________

85 S 313 read with schedule 4.

86 The fact that a child has a guardian and that the person who is seeking to adopt the child is the permanent
life partner of that guardian does not disqualify the child from being adoptable: Centre for Child Law v Min-
ister of Social Development 2014 (1) SA 468 (GNP), Heaton and Kruger Casebook on Family Law case [79]; see
also ch 23 below.
87 S 242(1)(a).
88 2014 (1) SA 468 (GNP). On this case, see further ch 23 below.
89 2007 (3) BCLR 249 (CC), 2007 (4) SA 97 (CC), Heaton and Kruger Casebook on Family Law case [72].
90 [1998] 2 All SA 259 (T), 1998 (4) BCLR 444 (T), 1998 (3) SA 312 (T).
91 2002 (9) BCLR 986 (CC), 2002 (6) SA 1 (CC) and 2004 (1) BCLR 1 (CC), 2003 (4) SA 266 (CC).
92 2003 (11) BCLR 1220 (SCA), 2004 (1) SA 359 (SCA).
93 2007 (3) BCLR 249 (CC), 2007 (4) SA 97 (CC).
94 2002 (10) BCLR 1006 (CC), 2003 (2) SA 198 (CC).
 Chapter 20: Life partnerships 267

Director General, Department of Home Affairs 95 the Constitutional Court expressly stated that
when the rights of children are at issue, the existence of a reciprocal duty of support between
the life partners is not essential. In some cases, such as J, the two Satchwell decisions, Du Toit,
Du Plessis and Gory, permanency was considered important. In cases such as National Coalition
for Gay and Lesbian Equality v Minister of Home Affairs 96 and Du Plessis the issue of whether the
life partners had a consortium omnis vitae or “life relationship similar . . . to marriage” was con-
sidered particularly relevant.97

20.4 The Constitution and life partnerships

As indicated above, all the judgments in which the court extended specific spousal benefits to
same-sex life partners were decided before the coming into operation of the Civil Union Act.
The last of these, Gory v Kolver (Starke Intervening),98 was handed down when the coming into
operation of the Act was imminent. Alert to this fact, the Constitutional Court pointed out
that the commencement of the Act would not alter or displace the rights and benefits the
Constitutional Court had already conferred on same-sex life partners in its earlier decisions. It
added that, unless legislation amended the relevant statutes that the Constitutional Court had
pronounced on, the court’s decisions would remain in force. Decisions of other courts, such
as the Supreme Court of Appeal’s decision in Du Plessis v Road Accident Fund 99 on the com-
mon-law action for loss of support, likewise continue to apply unaltered. Same-sex couples
who are not civil union partners can therefore still lay claim to the protection same-sex life
partners enjoyed prior to the coming into operation of the Civil Union Act. As a result, same-
sex life partners currently enjoy legal protection in more circumstances than heterosexual life
partners do. The question is whether this differentiation between same-sex and heterosexual
life partners is constitutionally tenable.
In the past, the sympathetic approach of the judiciary towards same-sex life partners was
based on the Constitutional Court’s view that, since same-sex life partners were barred from
entering into a marriage, the absence of a marriage between them did not justify excluding
them from the specific spousal benefits the court cases dealt with.100 In respect of heterosexual
life partners, the Constitutional Court in Volks v Robinson 101 held that the law may justifiably
distinguish between married and unmarried persons and withhold spousal benefits from
unmarried persons. Now that the Civil Union Act has come into operation, same-sex life part-
ners do have the option of entering into a marriage (albeit a marriage under the Civil Union
Act and not a civil marriage). The Constitutional Court’s argument that same-sex life partners
should not be excluded from spousal benefits because they are barred from entering into a
legally recognised marriage has therefore become redundant. Now, the right to equality
before the law and equal protection and benefit of the law and the right to be free from un-
fair discrimination on the ground of sexual orientation102 require that the law treat hetero-
sexual and same-sex life partners who have not entered into a marriage (or a civil
partnership) in the same manner. The preferential treatment of same-sex permanent life
________________________

95 2003 (5) BCLR 463 (CC).

96 2000 (1) BCLR 39 (CC), 2000 (2) SA 1 (CC).
97 For more detailed discussions of the various criteria the courts have applied, see Schäfer in Clark (ed)
Family Law Service pars E18, R3–R5, R7, R8; Smith in Heaton (ed) Law of Divorce and Dissolution of Life
Partnerships 407–427; Schäfer 2006 SALJ 630–631, 638; Jivan 2007 Law, Democracy and Development 36–38;
Picarra 2007 SAJHR 568–569; Wood-Bodley 2008 SALJ 259; De Ru 2009 (2) Speculum Juris 116–119. See
also Goldblatt 2003 SAJHR 122; Bonthuys 2004 SALJ 884–886.
98 2007 (3) BCLR 249 (CC), 2007 (4) SA 97 (CC).
99 2003 (11) BCLR 1220 (SCA), 2004 (1) SA 359 (SCA).
100 See National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (1) BCLR 39 (CC), 2000
(2) SA 1 (CC); Satchwell v President of the Republic of South Africa 2002 (9) BCLR 986 (CC), 2002 (6) SA 1
(CC); Gory v Kolver (Starke Intervening) 2007 (3) BCLR 249 (CC), 2007 (4) SA 97 (CC).
101 2005 (5) BCLR 446 (CC).
102 S 9(1) and (3) of the Constitution.
268 South African Family Law

partners no longer seems justifiable in terms of the limitation clause.103 It is submitted that the
solution to the unconstitutionality lies not in simply abolishing the protection that has thus
far been provided to same-sex life partners, but in extending such protection to heterosexual
life partners – at least until legislation governing life partnerships has come into operation.104

________________________

103 See further Barratt (ed) Persons and the Family 428; Heaton in Gerber and Sifris (eds) Current Trends in the
Regulation of Same-Sex Relationships 117–118; Skelton and Carnelley (eds) Family Law 216; Smith in Heaton
(ed) Law of Divorce and Dissolution of Life Partnerships 399–405; Schäfer in Clark (ed) Family Law Service par
R1; Mamashela and Carnelley 2006 Obiter 388; Bilchitz and Judge 2007 SAJHR 496–497; Picarra 2007
SAJHR 565; Robson 2007 SAJHR 426; Smith and Robinson 2008 International Journal of Law, Policy and the
Family 370; Kruuse 2009 SAJHR 385–386. See also the obiter dictum in Gory v Kolver (Starke Intervening) 2007
(3) BCLR 249 (CC), 2007 (4) SA 97 (CC) par 29: “Once this impediment [ie, same-sex life partners’ ina-
bility to marry] is removed, then there would appear to be no good reason for distinguishing between
unmarried heterosexual couples and unmarried same-sex couples in respect of intestate succession”. But
see Wood-Bodley 2008 SALJ 54 et seq, 260, 484 et seq and De Ru 2009 (2) Speculum Juris 120–122 who ar-
gue that continuing the preferential treatment of same-sex life partners is constitutionally permissible
because of the prevalence of homophobia in society, which renders it much more difficult for same-sex
couples than heterosexual ones to marry or enter into a civil partnership. In their view, achievement of
substantive equality requires that same-sex life partnerships continue to receive legal protection. De Ru
further argues (122–125) that continuing the preferential treatment could be justified as affirmative
action.
104 See also Smith in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 405.
 PART

6
DOMESTIC VIOLENCE
 21
DOMESTIC VIOLENCE

21.1 Introduction
1
Domestic violence is, sadly, an all too common occurrence in South Africa. Despite this, our
law did not provide any remedy specifically for domestic violence until the Prevention of Fam-
ily Violence Act 133 of 1993 came into operation on 1 December 1993. The Prevention of
Family Violence Act created a sui generis statutory interdict by means of which a perpetrator
could be prohibited from committing domestic violence. Because of widespread criticism of
the Act (inter alia for being too limited in scope and being procedurally unsound) a new Act,
the Domestic Violence Act 116 of 1998, was enacted. When the Domestic Violence Act came
into operation on 15 December 1999, it repealed and replaced most of the provisions of the
Prevention of Family Violence Act.2
The main focus of this chapter is the Domestic Violence Act. However, it must not be for-
gotten that the ordinary civil and criminal remedies which operate as between third parties
3
can also be invoked in the case of domestic violence.

21.2 Ordinary civil and criminal remedies

The perpetrator of domestic violence can incur delictual liability for injuries or damage he or
she inflicted on the victim or caused to the victim’s property. Depending on the circumstances
of the case, the perpetrator may also be charged with crimes such as assault; assault with the
intention to do grievous bodily harm; culpable homicide; murder; incest; rape; compelled
4
rape; sexual assault; compelled sexual assault; compelled self-sexual assault; crimen iniuria; or
malicious damage to property.

________________________

1 On the connections between divorce and domestic violence, see Bonthuys in Heaton (ed) Law of Divorce
and Dissolution of Life Partnerships 479–485.
2 For detailed analyses of whether the Domestic Violence Act 116 of 1998 effectively addresses the failures of
the Prevention of Family Violence Act 133 van 1993, see Jacobs 1 et seq; Kruger 2004 Journal for Juridical Science
152.
3 See also Minister of Safety and Security v Katise 2015 (1) SACR 181 (SCA), where the Supreme Court of
Appeal held that the Domestic Violence Act “adds to the protection offered to a victim” by the common law
and the Criminal Procedure Act 51 of 1977.
4 S 68(1) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 repealed
the common-law crimes of incest, rape and indecent assault. Ss 3–7 and 12 of the Act created the statutory
crimes of incest, rape, compelled rape, sexual assault, compelled sexual assault and compelled self-sexual
assault. Prior to the coming into operation of the Prevention of Family Violence Act, a husband could not
be charged with raping his wife. S 5 of the Prevention of Family Violence Act abolished the marital-rape
exemption. S 68(2) read with the schedule of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act repealed s 5 of the Prevention of Family Violence Act. S 56(1) of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act provides that the existence, or former existence, of a mar-
riage or other relationship between the accused and the complainant is not a defence to a charge of rape,
compelled rape, sexual assault, compelled sexual assault or compelled self-sexual assault.

271
272 South African Family Law
5
If the victim is a minor, domestic violence may also result in the child’s being found to be
6
in need of care and protection. There are also a number of crimes the perpetrator may be
charged with if his or her victim is a minor. They include sexual exploitation or sexual groom-
ing of a child;7 using a child for child pornography or benefiting from child pornography;8
compelling or causing a child to witness a sexual offence, sexual act or self-masturbation;9
unlawful circumcision or virginity testing;10 abuse or deliberate neglect of a child;11 abandon-
ment of a child;12 failing to provide a child with adequate food, clothing, accommodation and
medical treatment while being able to do so;13 counselling, inducing or aiding a child who is
in alternative care to abscond from or fail to return to alternative care, harbouring the child,
or preventing him or her from returning to alternative care;14 having contact with a child in
contravention of a written police notice;15 and contravening an order issued by the High
Court, a Regional Court in a divorce matter, or a Children’s Court in terms of the Children’s
Act 38 of 2005.16
If the victim is a male of at least 65 years of age or female of at least 60 years of age, the
perpetrator may be guilty of the crimes of abusing an older person;17 having contact with an
older person in contravention of a written police notice or Magistrate’s Court order;18 or accom-
modating or caring for an older person in contravention of a Magistrate’s Court order.19

20
21.3 Domestic Violence Act 116 of 1998
21.3.1 General
Any person who is or has been in a domestic relationship, and is or has been subjected or
allegedly subjected to domestic violence, may apply for a protection order in terms of the
________________________

5 For a summary of the clinical and legal aspects regarding child abuse, see Carstens and Du Plessis in
Boezaart (ed) Child Law in South Africa 594–600.
6 On a child in need of care and protection, see ch 23 below.
7 Ss 17 and 18 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act; see also
s 141(1)(b) of the Children’s Act 38 of 2005, which prohibits using, procuring, offering or employing a
child for purposes of commercial sexual exploitation.
8 S 20 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act.
9 S 21 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act.
10 S 12 of the Children’s Act prohibits all genital mutilation and circumcision of female children and regu-
lates virginity testing and male circumcision: see ch 22 below.
11 S 305(3)(a) of the Children’s Act. The offence can be committed by a parent, legal guardian or other per-
son who has parental responsibilities and rights in respect of the child, or a care-giver or person who does
not have parental responsibilities and rights but voluntarily cares for the child either indefinitely, temporar-
ily or partially.
12 S 305(3)(b) of the Children’s Act. The offence can be committed by a parent, legal guardian or other
person who has parental responsibilities and rights in respect of the child, or a care-giver or person who
does not have parental responsibilities and rights but voluntarily cares for the child either indefinitely,
temporarily or partially.
13 S 305(4) of the Children’s Act. The offence is limited to persons who are legally liable to maintain the
child.
14 S 305(1)(k) of the Children’s Act.
15 S 153(1)(b) read with s 305(1)(p)(ii) of the Children’s Act.
16 S 305(1)(p) of the Children’s Act. On the replacement of the Divorce Courts with the Regional Divisions of
the Magistrate’s Court, see ch 15 above. On removal of the perpetrator of domestic violence from his or
her home if the violence has been inflicted on a minor who lives in the home or if he or she is reasonably
suspected of having harmed or being likely to harm a minor unless he or she is removed, see Matthias and
Zaal 2010 Stell LR 528.
17 S 30(1) of the Older Persons Act 13 of 2006 read with the definition of “older person” in s 1. On the mean-
ing of “abuse” of an aged or older person, see below in this chapter.
18 S 27(1), (6)(a) and (8)(a) of the Older Persons Act.
19 S 29(10)(b) and (11) of the Older Persons Act.
20 For an empirical study of the effectiveness of the Act, see Artz and Smythe 2005 Acta Juridica 200. See also
Albertyn et al in Bonthuys and Albertyn (eds) Gender, Law and Justice 323–331 who discuss other empirical
studies. See further May and Mudarikwa The Domestic Violence Act 37–71.
 Chapter 21: Domestic violence 273

Domestic Violence Act. The person who seeks the order is called the complainant and the
person against whom the order is sought is called the respondent.
The application is made by means of a civil procedure, and the protection order is a civil
remedy.21 As is explained below in this chapter, it is only if the protection order is breached
that the criminal law steps in.22 At that point, the offender can be arrested for breach of the
protection order.
An application for a protection order may be brought outside ordinary court hours or on a
day that is not an ordinary court day if the court is satisfied that the complainant may suffer
undue hardship if the application is not dealt with immediately.23

21.3.2 The persons who qualify for protection under the Act
The complainant and respondent are in a domestic relationship in the following circum-
stances:24
(1) They are or were married to each other. For purposes of the Act, “marriage” refers to a
marriage according to any law, custom or religion. Thus, for example, spouses in Muslim
and Hindu marriages also enjoy protection in terms of the Act. A civil union is also
encompassed by the term.25
(2) They live or lived together in a relationship in the nature of marriage, although they are
not, or were not married to each other. This applies even if they are unable to marry
each other, and applies regardless of whether they are of the same or the opposite sex.26
(3) They are the parents of a child, or persons who have or had parental responsibilities and
rights in respect of the child at the same time or at different times.27
(4) They are related by consanguinity, affinity or adoption.28
(5) They are or were engaged,29 or are or were in a dating or customary relationship, includ-
ing an actual or perceived romantic, intimate or sexual relationship of any duration.
(6) They share or have recently shared the same residence.
The Act furthermore provides that any other person, including a counsellor, health service
provider, member of the police service, social worker, or teacher, who has a material interest
in the complainant’s well-being may apply for a protection order on the complainant’s behalf.
However, the complainant’s written consent must be obtained unless he or she is a minor, or
is mentally disabled, unconscious or a person whom the court is satisfied is unable to give the
required consent.30
The Act expressly authorises a minor to apply for a protection order. The minor or any per-
son on behalf of the minor may bring the application without the assistance of the minor’s
parent, legal guardian, or any other person.31 The Act further expressly provides that a child
who is in the care of the complainant also qualifies as a complainant.32 Thus, for example,

________________________

21 Kruger 2004 Journal for Juridical Science 158, 159.

22 For an analysis of the procedural difficulties created by the Act, see Cutler 2005 Responsa Meridiana 45.
23 S 4(5).
24 S 1.
25 S 13(2) of the Civil Union Act 17 of 2006.
26 Heterosexual and same-sex life partnerships are discussed in ch 20 above. On domestic violence in same-
sex relationships, see Pantazis 1998 SALJ 379, 2002 SALJ 310–311.
27 On who has parental responsibilities and rights, see ch 23 below.
28 In Duffy v Duffy [2012] 4 All SA 607 (SCA) the court held that the mere fact that persons are related by
blood does not mean that they are in a domestic relationship; some association over and above consanguin-
ity is required. On relationship by affinity and consanguinity, see ch 3 above. On adoption, see ch 23 below.
29 Engagements are discussed in ch 2 above.
30 S 4(3).
31 S 4(4). On violence against a homosexual child, see Pantazis 2002 SALJ 309.
32 S 1.
274 South African Family Law

when a mother applies for a protection order, she and any children who are in her care are
the complainants.
21.3.3 The conduct which qualifies as domestic violence
Domestic violence refers to physical,33 sexual,34 emotional, verbal, psychological35 and econom-
ic abuse;36 intimidation;37 harassment;38 stalking;39 damage to property;40 entry into the com-
plainant’s residence without consent if the parties do not share a residence; and any other
controlling or abusive behaviour towards the complainant. The conduct must harm, or be
such that it may cause imminent harm to the complainant’s safety, health or well-being.41

21.3.4 The protection order

(a) The interim protection order
The court may not immediately make a final protection order. It must first consider issuing
an interim protection order. The court must consider an application for a protection order as
soon as is reasonably possible. If the complainant lodged affidavits in support of his or her
application,42 the court must consider those affidavits. It may further consider such additional
evidence as it deems fit.43 A court which considers an application for an interim protection
order may cause an investigation with regard to the welfare of any minor or dependent child
affected by the domestic violence proceedings to be carried out by a Family Advocate in terms
of the Mediation in Certain Divorce Matters Act 24 of 1987. However, such an investigation
may be ordered only when circumstances permit and a Family Advocate is available.44
An interim protection order is made if the court is satisfied that there is prima facie evidence
that the respondent is committing or has committed an act of domestic violence, and that the
complainant may suffer undue hardship as a result of such domestic violence if a protection
order is not made immediately.45 The court may not refuse to make an interim protection
order, or refuse to impose a condition or make an order simply because other legal remedies

________________________

33 Physical abuse is any act or threatened act of physical violence: s 1.

34 Sexual abuse is any conduct which abuses, humiliates, degrades or otherwise violates the sexual integrity of
the complainant: s 1.
35 Emotional, verbal and psychological abuse is a pattern of degrading or humiliating conduct, including
repeated insults, ridicule or name calling, repeated threats to cause emotional pain, or the repeated exhib-
ition of obsessive possessiveness or jealousy which constitutes a serious invasion of the complainant’s priv-
acy, liberty, integrity or security: s 1.
36 Economic abuse includes the unreasonable deprivation of economic or financial resources to which a com-
plainant is legally entitled or which he or she needs. This includes household necessaries for the complain-
ant and mortgage repayments or rent in respect of the shared residence. Economic abuse also includes the
unreasonable disposal of household effects or other property in which the complainant has an interest: s 1.
37 Intimidation means uttering or conveying a threat or causing a complainant to receive a threat which in-
duces fear: s 1.
38 Harassment is a pattern of conduct which induces fear of harm. It includes repeatedly watching or loitering
outside or near the building or place where the complainant resides, works, carries on business, studies or
happens to be, and repeatedly making telephone calls or inducing another person to make telephone calls
to the complainant, regardless of whether or not conversation ensues. It also includes repeatedly sending,
delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects
to the complainant: s 1. See further the Protection from Harassment Act 17 of 2011, which provides for the
issuing of a protection order against harassment even when the complainant and the respondent are not in
a domestic relationship.
39 Stalking is repeatedly following, pursuing or accosting the complainant: s 1.
40 Damage to property is the wilful damaging or destruction of property belonging to the complainant or in
which he or she has an interest: s 1.
41 S 1.
42 S 4(6). The complainant is not compelled to lodge such affidavits.
43 S 5(1). This can be oral evidence or evidence by affidavit.
44 S 5(1A). The Mediation in Certain Divorce Matters Act 24 of 1987 is discussed in ch 14 above.
45 S 5(2).
 Chapter 21: Domestic violence 275

are available to the complainant.46 In other words, the court may not refuse, for example, to
make an interim protection order simply because the complainant who has been assaulted by
her husband may lay criminal charges against him and claim damages from him.
If an interim protection order is made, the order as well as a copy of the application and the
evidence the court noted must be served on the respondent.47 The interim protection order
must call on the respondent to show cause on the return date specified in the order why a
(final) protection order should not be made.48 The interim protection order has no force and
effect until it has been served on the respondent.49 Once it has been served, it is enforceable
throughout South Africa regardless of the area of jurisdiction of the court in which it was
granted.50
An interim protection order may prohibit the respondent from engaging in the following
conduct:
(1) Committing any act of domestic violence.51
(2) Enlisting another person’s help to commit any act of domestic violence.52
(3) Entering a residence shared by the complainant and the respondent if this is in the com-
plainant’s best interests.53 In this case, the respondent may be ordered to discharge rent
or mortgage payments in respect of the residence, having regard to his or her financial
needs and resources and those of the complainant.54
(4) Entering a specified part of such a shared residence.55
(5) Entering the complainant’s residence.56
(6) Entering the complainant’s place of employment.57
(7) Preventing the complainant who ordinarily lives or lived in a residence shared by the par-
ties from entering or remaining in the shared residence or a specified part thereof.58
(8) Committing any other act specified in the protection order.59
Unless the nature of the terms of the interim protection order necessitates the inclusion of
the complainant’s physical address, (for example, if the respondent is prohibited from enter-
ing certain premises) that address must be omitted from the order. The court may issue direc-
tions to ensure that the complainant’s physical address is not disclosed in a manner which
may endanger his or her safety, health or well-being.60 In addition, the court may impose any
other conditions which are reasonably necessary to protect the complainant and provide for
________________________

46 S 7(7)(a).
47 If an interim protection order is not made, the clerk of the court must cause certified copies of the applica-
tion and supporting affidavits to be served on the respondent. The respondent must further be notified
that he or she must show cause on the return date specified in the notice why a protection order should
not be made: s 5(4).
48 S 5(3). The return date may not be less than 10 days after service upon the respondent. The respondent may
anticipate the return date provided that he or she gives at least 24 hours’ notice to the complainant and the
court: s 5(5).
49 S 5(6).
50 S 12(3).
51 S 7(1)(a).
52 S 7(1)(b).
53 S 7(1)(c). On possible conflicts between orders in terms of this subsection and the provisions of the Preven-
tion of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 and the Extension of Securi-
ty of Tenure Act 62 of 1997, see Hoosen 2003 Judicial Officer 139.
54 S 7(3).
55 S 7(1)(d).
56 S 7(1)(e).
57 S 7(1)(f ).
58 S 7(1)(g).
59 S 7(1)(h). This subsection does not empower the court to make a stand-alone order regarding contact:
Andrews v Narodien 2002 (1) SACR 336 (C) (also reported as Narodien v Andrews 2002 (3) SA 500 (C)). See
Horn Apr 2009 De Rebus 7 for other examples of incompetent orders made under the Act.
60 S 7(5).
276 South African Family Law

his or her safety, health or well-being. This may include an order to seize any arm or danger-
ous weapon in the respondent’s possession or under his or her control,61 and an order that a
peace officer must accompany the complainant to a specified place to assist with arrange-
ments regarding the collection of personal property.62
The court may furthermore order the respondent to pay emergency monetary relief to the
complainant.63 This means that the respondent may be ordered to compensate the complain-
ant for monetary losses he or she suffered as a result of domestic violence. This includes loss
of earnings, medical and dental expenses, relocation and accommodation expenses or
expenses for household necessaries.64 In making the order, the court must have regard to the
financial needs and resources of the complainant and the respondent. If an order for pay-
ment of emergency monetary relief is made, it has the effect of a civil judgment by a Magis-
trate’s Court.65
If the court is satisfied that it is in the best interests of any child, it may refuse the respond-
ent contact with the child or impose conditions in respect of the respondent’s contact with the
child.66 However, the Act does not empower the court to make a stand-alone order which re-
lates only to contact. The order regarding contact must be ancillary to the protection order.67
If the court is of the view that any provision of the interim protection order relates to a
matter which should, in the interests of justice, be dealt with further in terms of another law,
such as the Maintenance Act 99 of 1998, it must restrict the duration of that particular provi-
sion to afford the party the opportunity to seek relief in terms of that law.68
When the court makes an interim protection order it must also authorise a warrant of ar-
rest against the respondent, and suspend execution of the warrant subject to compliance with
any prohibition, condition, obligation or order imposed in terms of the interim protection
order.69 The original warrant of arrest must be served on the complainant.70 If the complain-
ant states in an affidavit that the respondent has contravened the interim protection order,
and hands this affidavit and the warrant of arrest to a member of the police, the member
must arrest the respondent without delay if it appears to him or her that there are reasonable
grounds to suspect that the complainant may suffer imminent harm as a result of the alleged
contravention.71 In considering whether or not the complainant may suffer imminent harm,
the member of the police must take into account the risk to the complainant’s safety, health
or well-being, the seriousness of the alleged conduct, and the length of time since the alleged
________________________

61 S 7(2)(a). In terms of s 9 of the Act, the court must order a member of the police to seize any arm or
dangerous weapon in the respondent’s possession or under his or her control if it is satisfied that the re-
spondent has threatened or expressed the intention to kill or injure himself or herself or any other person
in the domestic relationship, regardless of whether the threat or expression of intent related to killing or
injuring with that particular arm or dangerous weapon. The court must also make an order for seizure if
possession of the arm or dangerous weapon is not in the best interests of the respondent or any other per-
son in the domestic relationship, because of the respondent’s state of mind, mental condition, inclination
to violence, or use of, or dependence on intoxicating liquor or drugs.
62 S 7(2)(b).
63 S 7(4).
64 S 1. On household necessaries, see further ch 5 above.
65 S 7(4).
66 S 7(6).
67 Andrews v Narodien 2002 (1) SACR 336 (C) (also reported as Narodien v Andrews 2002 (3) SA 500 (C)). On
the ways in which domestic violence is relevant with regard to care and contact, and the effect of domestic
violence on children, see Bonthuys in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 485–489;
Bonthuys 1999 SAJHR 312–314, 317–319, 325–326.
68 S 7(7)(b).
69 S 8(1).
70 S 6(5)(b). The state must provide financial assistance to a complainant or respondent who cannot afford to
pay the fees for service: s 13(2).
71 S 8(4)(a) and (b). Before executing the warrant of arrest, the police officer must satisfy himself or herself
of the terms of the protection order and the nature of the alleged breach. To enable the officer to do this,
the protection order and the complainant’s affidavit must be attached to the warrant of arrest: Khanyile v
Minister of Safety and Security 2012 (2) SACR 238 (KZD).
 Chapter 21: Domestic violence 277

breach occurred.72 If the member of the police is of the opinion that there are insufficient
grounds for arresting the respondent, he or she must immediately hand the respondent a
notice which calls on him or her to appear in court on a specified date and at a specified time
on a charge of breaching the protection order.73
Once a charge of breaching a protection order has been laid, a prosecutor may not refuse
to institute a prosecution or withdraw the charge without the consent of a Director of Public
Prosecutions or his or her designate.74 If the respondent is convicted of contravening any pro-
hibition, condition, obligation or order imposed in terms of an interim protection order, a
fine or imprisonment for a period not exceeding five years or both the fine and imprison-
ment may be imposed on him or her.75
(b) The protection order
If proper service of the interim protection order has been effected and the respondent fails to
appear on the date specified in the order, the court must confirm the order and make a
(final) protection order if it is satisfied that the application contains prima facie evidence that
the respondent is committing or has committed an act of domestic violence.76
If the respondent does appear on the specified date and opposes the issuing of a protec-
tion order, the court must hear the matter. It must consider any evidence which was received
in the proceedings regarding the interim protection order, as well as further affidavits or oral
evidence.77 If the court finds on a balance of probabilities that the respondent has committed
or is committing an act of domestic violence, it must issue a protection order.78 The conduct
the protection order may prohibit is the same as that which may be prohibited in terms of an
interim protection order, and the court has the same additional powers as it has in respect of
an interim protection order.79 The consequences of breaching a protection order are the
same as those resulting from breaching an interim protection order.80
Unlike an interim protection order, the final protection order is valid and enforceable as
soon as it is issued. Neither it nor the warrant of arrest that accompanies it need be served on
the respondent for it to be valid.81 The reason for the absence of the requirement of service of
the final protection order is probably that the interim order would already have been served
on the respondent and he or she would therefore know that domestic violence proceedings
are pending and that a protection order could be issued against him or her.82
(c) Varying and setting aside a protection order
A protection order can be varied or set aside upon good cause being shown.83 However, if the
complainant makes the application for variation or rescission, the court must be satisfied that
the application is being made freely and voluntarily.84 Further, as upper guardian of all
minors, the High Court may set aside a protection order if the best interests of a child
demand this.85

________________________

72 S 8(5).
73 S 8(4)(c).
74 S 18(1).
75 S 17.
76 S 6(1).
77 S 6(2).
78 S 6(4).
79 Ss 7 and 8(1).
80 S 17.
81 Seria v Minister of Safety and Security 2005 (5) SA 130 (C).
82 Ibid 144B–E (obiter).
83 S 10(1) and (2).
84 S 10(2).
85 B v B 2008 (4) SA 535 (W). On the High Court’s upper guardianship, see ch 23 below.
278 South African Family Law

21.3.5 Protection of a complainant at the scene of an incident of domestic

violence
The Act contains provisions relating to the protection of the victim of domestic violence at
the scene of the incident which apply even if an application has not (yet) been made for a
protection order. At the scene of an incident of domestic violence, as soon as is reasonably
possible after domestic violence has occurred, or when the domestic violence is reported, any
member of the police must render such assistance to the complainant as may be required.
This includes making arrangements for the complainant to find a suitable shelter and obtain
medical treatment. If it is reasonably possible, the member of the police must hand a notice
in the official language of the complainant’s choice to him or her and explain the content of
the notice.86 This notice inter alia informs the complainant that he or she may lay a criminal
charge against the respondent and may apply for a protection order; what conduct may be
prohibited in terms of the protection order; what additional powers the court has; that a
warrant of arrest will be issued against the respondent if a protection order is made; that the
member of the police can provide the complainant with an application form for a protection
order; and that he or she will render such assistance to the complainant as the complainant
may require, including assisting the complainant in finding suitable shelter and getting med-
ical help or finding such shelter or medical help for the complainant.87
Furthermore, a peace officer may arrest a respondent without a warrant at the scene of an
incident of domestic violence if he or she reasonably suspects that the respondent committed
an offence containing an element of violence against the complainant.88

21.3.6 Jurisdiction
A protection order may be issued by a Magistrate’s Court.89 The court has jurisdiction in any
of the following circumstances:
(1) The complainant temporarily or permanently resides, carries on business or is employed
in the court’s area of jurisdiction.
(2) The respondent resides, carries on business or is employed in the court’s area of jurisdic-
tion.
(3) The cause of action arose in the court’s area of jurisdiction.90

21.3.7 The court proceedings

Proceedings under the Domestic Violence Act are conducted in private. The only people who
may be present in court are the parties, their legal representatives, someone who brings an
application on the complainant’s behalf, witnesses, officers of the court, and not more than
three persons each to provide support to the complainant and respondent. The court may ex-
clude anyone from attending part of the proceedings, and may exercise any other power to
hear proceedings behind closed doors.91
The Act prohibits the publication of any information which may, directly or indirectly,
reveal the identity of any party to the proceedings. In the interests of justice, the court may
further direct that any other information relating to the proceedings may not be published.
Such a direction does not apply to the publication of a bona fide law report which does not
mention the names or reveal the identities of the parties or witnesses.92 Contravention of the
________________________

86 S 2.
87 Form 1 of the regulations issued in terms of the Act.
88 S 3.
89 See the definition of “court” in s 1. For criticism of the exclusion of traditional courts from jurisdiction to
make orders in terms of the Act, see Curran and Bonthuys 2005 SAJHR 608.
90 S 12(1).
91 S 11(1).
92 S 11(2).
 Chapter 21: Domestic violence 279

prohibition on publication is a crime which is punishable with a fine or imprisonment for a

period not exceeding two years or both the fine and imprisonment.93
21.3.8 Legal representation and costs
Any party to proceedings under the Act may have legal representation.94 If the complainant is
unrepresented, the clerk of the court must inform him or her of the relief available in terms
of the Act and the right to lodge a criminal complaint against the respondent if a crime has
been committed.95
Each party bears his or her own costs unless he or she acted frivolously, vexatiously or
unreasonably. In the latter event a costs order may be made against that party.96

21.4 Reporting abuse

21.4.1 General
There is no obligation to report domestic violence unless the victim is a child or an aged per-
son. If the victim is a child or an aged person, the duty to report applies regardless of whether
the violence was at the hands of a person who is in a domestic relationship with the victim.
21.4.2 Child abuse
In terms of section 110(1) of the Children’s Act, any correctional official, dentist, homeopath,
immigration official, labour inspector, legal practitioner, medical practitioner, midwife,
minister of religion, nurse, occupational therapist, physiotherapist, psychologist, religious
leader, social service professional, social worker, speech therapist, teacher, traditional health
practitioner, traditional leader, or member of staff or volunteer worker at a partial care
facility, drop-in centre or child and youth care centre who, on reasonable grounds, concludes
that a child has been abused in a manner causing physical injury, or has been sexually
abused97 or deliberately neglected, must inform a designated child protection organisation,
the provincial Department of Social Development or the police. Failure to do so is an of-
fence.98 The section further provides that anyone who reasonably believes that a child is in
need of care and protection may, but need not, report that belief to the provincial Depart-
ment of Social Development, a designated child protection organisation or the police.
If a sexual offence has been committed against a child, section 54 of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007 obliges anyone who
knows that the offence has been committed to inform the police immediately.99 Failure to
report such knowledge is an offence.100 The Children’s Act further provides that any owner,
lessor, manager, tenant or occupier of premises on which the commercial sexual exploitation
of a child has occurred, commits a crime if he or she does not promptly take reasonable steps
to report the exploitation to the police.101 And, a social worker or social service professional
who becomes aware that a child has been used, procured, offered or employed for purposes
of commercial sexual exploitation must report this to the police.102
________________________

93 S 17.
94 S 14.
95 S 4(2).
96 S 15.
97 It is unclear whether the inclusion of a duty to report sexual abuse entails that details regarding a minor
who wants, or has had, a termination of pregnancy must be reported in contravention of s 7(5) of the
Choice on Termination of Pregnancy Act 92 of 1996. S 7(5) of the latter Act provides that the identity of
a woman who has requested or obtained a termination of pregnancy must remain confidential unless she
herself chooses disclosure.
98 S 305(1)(c).
99 S 54(1)(a).
100 S 54(1)(b).
101 S 305(5) of the Children’s Act.
102 S 141(2)(a) of the Children’s Act.
280 South African Family Law

21.4.3 Abuse of an aged person

Domestic violence sometimes takes the form of abuse of an older person. A parent may, for
example, be abused by his or her child or grandchild. The Older Persons Act 13 of 2006
requires any person who suspects that an older person has been abused or suffers from an
abuse-related injury immediately to notify the director-general or the police, and provides
that failure to do so is a crime.103 An older person is a man who is 65 years of age or older, or a
woman who is 60 years of age or older.104 “Abuse of an older person” is defined in very broad
terms. It connotes “[a]ny conduct or lack of appropriate action, occurring within any rela-
tionship where there is an expectation of trust, which causes harm or distress or is likely to
cause harm or distress to an older person” and includes physical, sexual, psychological and
economic abuse.105
The Older Persons Act furthermore requires anyone who is involved with an older person
in a professional capacity to notify the director-general if he or she personally observes the
older person and concludes that the person is in need of care and protection.106 Any other
person who is of the opinion that an older person is in need of care and protection may, but
need not, report this opinion to a social worker.107 An older person is in need of care and pro-
tection in any of the following circumstances:108
(1) His or her income, assets or old-age grant has been taken against his or her wishes or he
or she suffers any other economic abuse.
(2) He or she has been removed from his or her property against his or her wishes or has
been unlawfully evicted from any property he or she occupied.
(3) He or she has been neglected or abandoned without visible means of support.
(4) He or she lives or works on the streets, or begs for a living.
(5) He or she abuses or is addicted to a substance and is without any support or treatment
for such abuse or addiction.
(6) He or she lives in circumstances which are likely to cause or be conducive to seduction,
abduction or sexual exploitation.
(7) He or she lives in or is exposed to circumstances which may harm him or her physically
or mentally.
(8) He or she is in a state of physical, mental or social neglect.
The provisions of the Act do not limit, amend, repeal or in any way alter the provisions of the
Domestic Violence Act.109

21.5 Prevention and early intervention in respect of children who

are at risk
Chapter 8 of the Children’s Act provides for the provision of prevention and early intervention
programmes. These programmes come into play, inter alia, when a child’s well-being and best
interests are at risk, for example, because he or she is at risk of being abused or neglected.
________________________

103 S 26(1) and (3).

104 S 1.
105 S 30(2). Physical abuse refers to any act or threat of physical violence, while sexual abuse refers to any con-
duct which violates the older person’s sexual integrity. Psychological abuse is any pattern of degrading or
humiliating conduct, including repeated insults, ridicule or name calling, repeated threats to cause emo-
tional pain, and repeated invasion of the person’s privacy, liberty, integrity or security. Economic abuse is
the deprivation of economic and financial resources to which the person is legally entitled, the unreason-
able deprivation of economic and financial resources which the person needs or the disposal of household
effects or other property that belongs to the person without his or her consent: s 30(3).
106 S 25(1).
107 S 25(2) and (3).
108 S 25(5).
109 S 24 of the Older Persons Act.
 Chapter 21: Domestic violence 281

Prevention and early intervention programmes inter alia have the objects of developing
appropriate parenting skills and the capacity of parents and care-givers to safeguard the well-
being and best interests of children. This includes promoting positive, non-violent forms of
discipline. The programmes also focus on promoting appropriate inter-personal relationships
within the family; preventing the neglect, exploitation, abuse or inadequate supervision of
children and other failures in the family environment to meet children’s needs; and the
recurrence of problems in the family environment which may harm children or adversely
affect their development.110 The programmes are provided in terms of national and provincial
strategies and according to national norms and standards, which are contained in the regula-
tions in terms of the Act.111
Early intervention programmes are specifically provided to families when children have
already been identified as being vulnerable to or at the risk of harm or removal into alterna-
tive care because of,112 for example, signs of domestic violence, exploitation or neglect. Before
making an order concerning the removal of a child from his or her family environment, a
Children’s Court may, if it considers it appropriate, order the provincial Department of Social
Development or another organ of state, a designated child protection organisation, another
organisation, or a person to provide early intervention programmes to the child and his or her
family, parent or care-giver for a specified period not exceeding six months.113 Alternatively,
the court may order the child and his or her family to participate in a family preservation pro-
gramme for a specified period not exceeding six months.114 However, if the child’s safety or
well-being is seriously or imminently at risk, the court may not resort to merely ordering early
intervention programmes.115

21.6 The Constitution and domestic violence

In terms of section 12(1) of the Constitution of the Republic of South Africa, 1996 everyone
has the right to freedom and security of the person, which includes the right to be free from
all forms of violence from either public or private sources. In S v Baloyi 116 the Constitutional
Court pointed out that the specific inclusion of private sources emphasises that serious threats
to personal security arise from those sources. Sachs J indicated that, read with section 7(2) of
the Constitution (which obliges the state to respect, protect, promote and fulfil the rights in
the Bill of Rights), section 12(1) obliges the state to protect everyone’s right to be free from
violence, including domestic violence. The constitutional right to bodily and psychological
integrity, the right to dignity, the right not to be tortured in any way, and the right not to be
treated or punished in a cruel, inhuman or degrading way117 also oblige the state to deal with
domestic violence. Sachs J further stated that
domestic violence compels constitutional concern in yet another important respect. To the extent
that it is systemic, pervasive and overwhelmingly gender-specific, domestic violence both reflects
and reinforces patriarchal domination, and does so in a particularly brutal form . . . The non-
sexist society promised in the foundational clauses of the Constitution [that is, section 1], and the
right to equality and non-discrimination guaranteed by section 9, are undermined when spouse-
batterers enjoy impunity.118

________________________

110 S 144(1)(b), (d), (f ) and (g).

111 Ss 145–147.
112 S 143(2).
113 S 148(1)(a) and (2).
114 S 148(1)(b) and (2).
115 S 148(5). On prevention/preservation and early intervention programmes, see further Frank in Davel and
Skelton (eds) Commentary on the Children’s Act ch 8; Kruger 2009 (2) Speculum Juris 42–44.
116 2000 (1) BCLR 86 (CC), 2000 (2) SA 425 (CC). The issue in S v Baloyi was the constitutionality of a specific
section of the Prevention of Family Violence Act which has since been repealed. However, many of the
Constitutional Court’s statements relate to domestic violence against a spouse or life partner in general
and therefore remain valid.
117 Ss 12(2), 10, 12(1)(d) and 12(1)(e), respectively.
118 Par 12.
282 South African Family Law

He also referred to South Africa’s obligations in terms of international human-rights instru-

ments. He cited inter alia the Convention on the Elimination of Discrimination Against Women,
which obliges state parties to pursue policies of eliminating discrimination against women by
adopting legislative and other measures which prohibit such discrimination,119 and the Afri-
can Charter on Human and Peoples’ Rights, which obliges signatory states to ensure that
discrimination against women is eliminated.120
In Omar v Government, RSA 121 the Constitutional Court reiterated many of these views. As in
Baloyi, the court in Omar considered the context within which domestic-violence legislation
has to be evaluated. Van der Westhuizen J pointed out that the court had already recognised
the constitutional necessity of dealing effectively with domestic violence. He again referred to
the gendered nature and effects of domestic violence122 and held that “[d]omestic violence
brutally offends the values and rights enshrined in the Constitution”.123 In this regard he
specifically referred to the founding constitutional values of non-sexism, dignity, the
achievement of equality and the advancement of human rights and freedoms, and the right
to freedom and security of the person. He stated that the right to be free from all forms of
violence must be understood in conjunction with the rights to dignity, life, privacy, and
equality, which includes the full and equal enjoyment of all rights and freedoms. He further
referred to the Constitutional Court’s judgment in Carmichele v Minister of Safety and Security
(Centre for Applied Legal Studies Intervening),124 in which the court emphasised South Africa’s
obligations under international law to prohibit all gender-based discrimination which impairs
women’s enjoyment of fundamental rights and freedoms and to take reasonable and appro-
priate measures to prevent the violation of those rights and freedoms.
Many of the court’s statements in Baloyi and Omar pertain equally to domestic violence
which is inflicted on children. In addition, the child’s constitutional right to be protected
from maltreatment, neglect, abuse and degradation, and the constitutional requirement that
a child’s best interests must be of paramount importance in every matter concerning the
child125 apply in respect of such domestic violence.126 Furthermore, South Africa has ratified
the Convention on the Rights of the Child and must therefore comply with the obligations it
imposes on state parties.127 These obligations include protecting children from all forms of
physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or
________________________

119 Art 2. On international measures targeting violence against women, and South Africa’s obligation to address
domestic violence, see further May and Mudarikwa The Domestic Violence Act 11–23; Bonthuys in Heaton
(ed) Law of Divorce and Dissolution of Life Partnerships 478; Reddi in Hoctor and Schwikkard (eds) The Exem-
plary Scholar 64; Van Zyl Bill of Rights Compendium par 3I23; Oosthuizen 2001 Journal for Juridical Science 53–
54; Govender 2003 SAJHR 663; Kruger 2004 Journal for Juridical Science 163–164; Curran and Bonthuys 2005
SAJHR 607, 608; Reddi 2007 Obiter 506–508 Banda 2008 African Human Rights Law Journal 1.
120 Art 18.
121 2006 (2) BCLR 253 (CC) (also reported as Omar v Government of the Republic of South Africa (Commissioner for
Gender Equality, Amicus Curiae) 2006 (2) SA 289 (CC)). In this case, the applicant unsuccessfully attacked
the constitutionality of ss 5(3), 5(6) and 8 of the Domestic Violence Act.
122 On the gendered nature of domestic violence, see further May and Mudarikwa The Domestic Violence Act 4;
Albertyn et al in Bonthuys and Albertyn (eds) Gender, Law and Justice 321–322; Bonthuys in Heaton (ed)
Law of Divorce and Dissolution of Life Partnerships 477, 479–485; Meintjes-van der Walt in Clark (ed) Family
Law Service par M2; Van Zyl Bill of Rights Compendium pars 3I21; Songca and Letseku 1998 De Jure 58–59;
Singh 2002 Journal for Juridical Science 159; Kruger 2004 Journal for Juridical Science 153, 163–164; Artz and
Smythe 2005 Acta Juridica 204; Andrews 2007 Loyola University Chicago International Law Review 15; Reddi
2007 Obiter 503–505, 511–513; Banda 2008 African Human Rights Law Journal 17.
123 Par 17.
124 2001 (10) BCLR 995 (CC), 2001 (4) SA 938 (CC).
125 S 28(1)(d) and (2), respectively.
126 On the constitutional rights relating to protection from domestic violence, see further Albertyn et al in
Bonthuys and Albertyn (eds) Gender, Law and Justice 332–335; Reddi in Hoctor and Schwikkard (eds) The
Exemplary Scholar 68, 74; Andrews 2007 Loyola University Chicago International Law Review 21–25; Du Plessis
and Sinclair 2007 Stell LR 105–111, 115.
127 On international measures aimed at protecting children from abuse and neglect, see Oosthuizen 2000
Journal for Juridical Science 111–113; Kruger 2004 Journal for Juridical Science 163.
 Chapter 21: Domestic violence 283

exploitation, including sexual abuse, while they are in the care of parents, legal guardians or
any other person.128 South Africa has also ratified the African Charter on the Rights and Wel-
fare of the Child, which places a similar obligation on state parties: state parties must take
measures to protect children from physical or mental injury or abuse, neglect or maltreat-
ment, including sexual abuse, while in the care of a parent, legal guardian or any other per-
son who has care of the child.129

________________________

128 Art 19(1).

129 Art 16(1).
 PART

7
THE RESPONSIBILITIES AND RIGHTS OF
PARENTS AND CHILDREN
 22
CHILDREN’S RIGHTS

22.1 Introduction
Internationally, the focus of the private-law rules regarding the parent-child relationship has
increasingly shifted from the rights and powers of parents towards the rights and entitlements
of children. In addition, international human-rights instruments and constitutional provisions
have conferred specific rights on children.1 The emphasis on the rights of children is evident
in our law, too. Therefore, children’s rights are discussed before the contents of parental
esponsibilities and rights are set out.2

22.2 Section 28 of the Constitution of the Republic of

South Africa, 1996
22.2.1 General
The most important instrument for the recognition and protection of children’s rights in
South Africa is the Constitution of the Republic of South Africa, 1996. Apart from having all
________________________

1 For an overview of how constitutions internationally treat children’s rights, see Tobin 2005 SAJHR 86. For a
survey of children’s rights in Africa, see Sloth-Nielsen (ed) Children’s Rights in Africa 1 et seq, on research
topics which are of specific relevance to the furtherance of children’s rights in Africa, see Sloth-Nielsen and
Mezmur 2007 African Human Rights Law Journal 330 and on the development of an Eastern and Southern
African children’s rights jurisprudence, see Skelton 2009 African Human Rights Law Journal 482.
2 On children’s rights generally, see Boniface in Sloth-Nielsen and Du Toit (eds) Trials and Tribulations, Trends
and Triumphs 153–155; Burman et al in Burman (ed) The Fate of the Child 1; Davel (ed) Children’s Rights in a
Transitional Society 1 et seq; Devenish Commentary on the South African Constitution 74–76; Devenish Commentary
on the South African Bill of Rights ch 21; Human Die Invloed van die Begrip Kinderregte op die Privaatregtelike Ouer–
Kind Verhouding 1 et seq; Human Bill of Rights Compendium ch 3EA; Human in Boezaart (ed) Child Law in South
Africa ch 10; Keightley (ed) Children’s Rights 1 et seq; Kruger chs 8 and 9; Pollecutt et al (eds) The Legal Rights
of Children in South Africa 1 et seq; Robinson in Eekelaar and Nhlapo (eds) The Changing Family 483; South
African Law Commission Discussion Paper Review of the Child Care Act Project 110 ch 3; South African Law
Commission Report on the Review of the Child Care Act ch 3; Van der Vyver in Robinson (ed) Law of Children
and Young Persons ch 10; Van Heerden in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 314–
316, 683–684; Heaton and Davie 1991 SA Human Rights and Labour Law Yearbook 19; De Villiers 1993 Stell LR
289; De Vos 1995 SA Public Law 233; Robinson 1995 Obiter 99; Sloth-Nielsen 1995 SAJHR 401; De Wet 1996
THRHR 577; Mosikatsana 1998 Michigan Journal of Race and Law 341; Human 2000 Stell LR 71, 2000 THRHR
200 and 393, 2000 Journal for Juridical Science 123; Pieterse 2000 Stell LR 324–326; Clark 2001 THRHR 616–
618; Haupt and Robinson 2001 THRHR 23; Robinson 2002 Stell LR 309; Human 2003 TSAR 276; Pieterse
2003 TSAR 1; Human 2004 TSAR 78; Kruger 2005 (1) Codicillus 1; Tobin 2005 SAJHR 86; Kruger 2006
THRHR 436; Gallinetti 2010 SA Public Law 108; Songca 2011 CILSA 340; Boezaart 2012 SA Public Law 254.
On the use of multi- and inter-disciplinary approaches in understanding and interpreting children’s rights,
see Songca 2012 CILSA 365 (also published in Viljoen (ed) assisted by Njau Beyond the Law ch 7). On chil-
dren’s rights in Islamic legal theory, see Olowu 2008 Law, Democracy and Development 62. On the contribu-
tion of the South African Human Rights Commission to the protection and promotion of children’s rights,
see Couzens 2012 SAJHR 553. On the right to mother-tongue education, see Chürr 2013 Obiter 274; on the
right to education in the language of choice, see Liebenberg Socio-economic Rights Adjudication under a Trans-
formative Constitution 249–254; and on the right to basic education, see Murungi 2015 PELJ 1. On freedom
of religion of children in private schools, see Chetty and Govindjee 2014 Journal for Juridical Science 31.

287
288 South African Family Law

the rights the Constitution confers on everyone, children (that is, persons below the age of 18
years)3 are afforded special protection by section 28. The purpose of this section, which is
commonly known as the children’s rights clause, is to protect children, not their parents.
Thus the section affords rights to children, not their parents.4
Section 28 provides as follows:
(1) Every child has the right
(a) to a name and a nationality from birth;
(b) to family care or parental care, or to appropriate alternative care when removed from
the family environment;
(c) to basic nutrition, shelter, basic health care services and social services;
(d) to be protected from maltreatment, neglect, abuse or degradation;
(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or provide services that –
(i) are inappropriate for a person of that child’s age; or
(ii) place at risk the child’s well-being, education, physical or mental health or spirit-
ual, moral or social development;
(g) not to be detained except as a measure of last resort, in which case, in addition to the
rights a child enjoys under sections 12 and 35, [that is, the sections relating to freedom
and security of the person and the rights of arrested, detained and accused persons]
the child may be detained only for the shortest appropriate period of time, and has the
right to be –
(i) kept separately from detained persons over the age of 18 years; and
(ii) treated in a manner, and kept in conditions, that take account of the child’s age;
(h) to have a legal practitioner assigned to the child by the state, and at state expense, in
civil proceedings affecting the child, if substantial injustice would otherwise result; and
(i ) not to be used directly in armed conflict, and to be protected in times of armed conflict.
(2) A child’s best interests are of paramount importance in every matter concerning the child.
The provisions of the children’s rights clause which are particularly relevant to family law are
considered below.5
________________________

3 S 28(3) of the Constitution. Majority is attained at the age of 18 years: s 17 of the Children’s Act 38 of 2005.
4 SW v F 1997 (1) SA 796 (O). This case was decided in the context of the children’s rights clause in the in-
terim Constitution (ie, s 30 of the Constitution of the Republic of South Africa Act 200 of 1993), but it is
submitted that the principle holds good in respect of the children’s rights clause in the final Constitution
(ie, Constitution of the Republic of South Africa, 1996), too. See also M v S (Centre for Child Law, Amicus
Curiae) 2007 (12) BCLR 1312 (CC) (also reported as S v M (Centre for Child Law as Amicus Curiae) 2008 (3)
SA 232 (CC), 2007 (2) SACR 539 (CC)). The fact that the objective of the children’s rights clause is not the
protection of parents does not mean that parents do not have constitutional rights. For an analysis of the
constitutional rights parents may have because they are parents, see Carpenter 2008 TSAR 397.
5 On the rights in s 28(1), see the cases which are cited in this chapter; Minister of Welfare and Population
Development v Fitzpatrick 2000 (7) BCLR 713 (CC), 2000 (3) SA 422 (CC); S v Z and 23 Similar Cases 2004 (4)
BCLR 410 (E); Director of Public Prosecutions, KwaZulu-Natal v P 2006 (3) SA 515 (SCA); Mpofu v Minister for
Justice and Constitutional Development (Centre for Child Law as Amicus Curiae) 2013 (9) BCLR 1072 (CC), 2013
(2) SACR 407 (CC); Church and Church LAWSA Children pars 60–61; Cockrell Bill of Rights Compendium pars
3E10–3E18; Devenish Commentary on the South African Bill of Rights 375–394; Human Die Invloed van die Begrip
Kinderregte op die Privaatregtelike Ouer–Kind Verhouding 295–297; Keightley in Van Heerden et al (eds) Boberg’s
Law of Persons and the Family 83; Kruger 471–484, 505–507, 512–514; Proudlock in Boezaart (ed) Child Law
in South Africa 291; Robinson in Eekelaar and Nhlapo (eds) The Changing Family ch 29; Schäfer Child Law in
South Africa 116–152; Schäfer in Clark (ed) Family Law Service par E80; Skelton in Boezaart (ed) Child Law in
South Africa 284–289; Van der Vyver in Robinson (ed) Law of Children and Young Persons 303–308; Keightley
1998 SAJHR 411; Mosikatsana 1998 Michigan Journal of Race and Law 341; Robinson 1998 Obiter 329; Sloth-
Nielsen 2001 SAJHR 210; Jazbhay Dec 2002 De Rebus 60; Robinson 2002 TSAR 697; Bekink 2003 THRHR
254–255; Kassan 2003 De Jure 167–169; Pieterse 2003 TSAR 1; Mailula (2005) 1 Codicillus 15; Van Schalkwyk
2005 De Jure 351; Robinson 2005 Journal for Juridical Science 113–114; McLaren 2005 Responsa Meridiana 128–
132; Zaal and Pillay 2005 SALJ 300; Esser 2006 De Jure 389–391; Jansen van Rensburg 2007 SA Public Law
295; Stewart 2008 SAJHR 472; McMurray and Jansen van Rensburg 2004 (1) PELJ 2.
 Chapter 22: Children’s rights 289

22.2.2 The right to a name

The Births and Deaths Registration Act 51 of 1992 gives effect to the child’s right to a name.
In terms of the Act, the birth of every child who is born alive must be registered within 30
days, and a forename (that is, a first name) and surname must be assigned to the child before
registration can take place.6 The surname under which the child may be registered depends
on whether the child is born of married or unmarried parents.7

22.2.3 The right to family, parental or appropriate alternative care, and the
right to nutrition, shelter, health care and social services
Section 28(1)(b) and (c) affords the child the right to family or parental care, or appropriate
alternative care if he or she is removed from the family environment, and the right to basic
9
nutrition, shelter, basic health care services8 and social services. The Constitutional Court’s
attitude in respect of these provisions is that the duty they impose rests primarily on parents
and family members.10 It passes to the state only if the child’s parents or family members fail
or are unable to provide care to the child. The state is obliged, however, “to create the neces-
sary environment” for parents and family members to provide children with proper care.11
This it must do, inter alia, by providing “the legal and administrative infrastructure necessary
to ensure that children are accorded the protection contemplated by s 28” and affording
families access to land, housing, health care, food, water and social security “on a program-
matic and coordinated basis, subject to available resources”.12
In terms of the Constitutional Court’s decision in Government of the Republic of South Africa v
Grootboom,13 subsections (b) and (c) must be read together. Section 28(1)(b) defines those
responsible for giving care, while section 28(1)(c) “lists various aspects of the care entitle-
ment”.14 It should be noted that the court held that section 28(1)(c) lists “various aspects”,
and not “the various aspects”, of the child’s care entitlement. The content of the child’s right
to receive care is therefore determined partly by the socio-economic rights mentioned in sec-
tion 28(1)(c), but the rights enumerated in that section are clearly not exhaustive of what is
encompassed in the child’s right to care.
In Grootboom the court further held that the child’s rights in terms of section 28(1)(c) must
be ascertained in the context of the socio-economic rights in sections 25(5), 26 and 27 of the
________________________

6 S 9(1) and (6).

7 See ss 1(2)(a), 9(2) and 10(1) read with the definition of “child born out of wedlock” in s 1(1). On the dis-
tinction between children born of married parents and those born of unmarried parents, see ch 23 below.
On registration of a child’s birth, see further Heaton Persons 8–12.
8 On the child’s right to health care within the context of the HIV/AIDS pandemic, see Nicholson 2002
CILSA 351. See further Skelton in Davel and Skelton (eds) Commentary on the Children’s Act 1-21–1-22.
9 On ss 28(1)(b) and 28(1)(c), see in general Liebenberg Socio-economic Rights Adjudication under a Transforma-
tive Constitution 228–242; Schäfer Child Law in South Africa 126–131; Pieterse 2010 THRHR 230; Skelton 2010
SAJHR 141 (also published in Goldblatt and McLean (eds) Women’s Social and Economic Rights 58); Nkosi
2010 SA Merc LJ 346; Stewart 2011 SA Public Law 9; Nkosi 2011 SA Public Law 81; Büchner-Eveleigh and
Nienaber 2012 (1) PELJ 103.
10 Government of the Republic of South Africa v Grootboom 2000 (11) BCLR 1169 (CC), 2001 (1) SA 46 (CC); Minis-
ter of Health v Treatment Action Campaign (1) 2002 (12) BCLR 1033 (CC) (also reported as Minister of Health v
Treatment Action Campaign (2) 2002 (5) SA 721 (CC)); Bannatyne v Bannatyne (Commission for Gender Equality, as
Amicus Curiae) 2003 (2) BCLR 111 (CC), 2003 (2) SA 363 (CC), Heaton and Kruger Casebook on Family
Law case [21].
11 Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae) 2003 (2) BCLR 111 (CC), 2003 (2)
SA 363 (CC) par 24; see also Government of the Republic of South Africa v Grootboom 2000 (11) BCLR 1169
(CC), 2001 (1) SA 46 (CC); Minister of Health v Treatment Action Campaign (1) 2002 (12) BCLR 1033 (CC)
(also reported as Minister of Health v Treatment Action Campaign (2) 2002 (5) SA 721 (CC)).
12 Government of the Republic of South Africa v Grootboom 2000 (11) BCLR 1169 (CC), 2001 (1) SA 46 (CC) par
78; see also Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae) 2003 (2) BCLR 111
(CC), 2003 (2) SA 363 (CC).
13 2000 (11) BCLR 1169 (CC), 2001 (1) SA 46 (CC), Heaton and Kruger Casebook on Family Law case [74].
14 Par 76; see also Heystek v Heystek 2002 (2) SA 754 (T).
290 South African Family Law

Constitution. Section 25(5) obliges the state, within its available resources, to take reasonable
legislative and other measures to foster conditions which enable citizens to gain access to land
on an equitable basis, while sections 26 and 27 oblige the state, also within its available re-
sources, to adopt reasonable legislative and other measures to achieve the progressive realisa-
tion of the right to adequate housing and the right to health care services, sufficient food and
water, and social security. Thus there is an overlap between the rights enshrined in these sec-
tions and the child’s rights in terms of section 28(1)(c). Because of this overlap, the Constitu-
tional Court concluded that section 28(1)(c) does not create separate and independent rights
for children and does not entitle them to shelter on demand. The court warned that the
carefully constructed constitutional scheme for progressive realisation of socio-economic
rights would make little sense if it could be trumped in every case by the rights of children to
get shelter from the State on demand and that “[c]hildren could become stepping stones to
housing for their parents instead of being valued for who they are”.15
16
In Minister of Police v Mboweni the Supreme Court of Appeal held that the right to family,
parental or appropriate alternative care when removed from the family environment is
17
couched as three alternative rights, and not as three separate and distinct rights. Conse-
quently, it is possible that the right can be fulfilled if the child is cared for by at least one of
18
those responsible for giving the care stipulated in the section.
As indicated above, the Constitutional Court has held that the child’s right to care operates
primarily against his or her parents and family. It is not yet clear who qualifies as parents and
family for purposes of the child’s right to care. In Jooste v Botha 19 the Transvaal Provincial Div-
ision of the High Court (now the Gauteng Division of the High Court, Pretoria) held that the
reference to parental care “envisages . . . a child in care of somebody who has custody [that is,
care] over him or her” and that “the word ‘parental’ must necessarily be read as pertaining to
a custodian [that is, care-giving] parent”. Accordingly, a non-care-giving parent20 falls outside
the scope of the section, and a child is not entitled to parental care by such a parent. This
very restrictive view is incorrect, for nothing in the wording of section 28(1)(b) suggests the
limitation the court advocates.21 In a subsequent decision in the same division of the High
Court, namely Heystek v Heystek,22 the court, without referring to Jooste v Botha or analysing the
issue of whom parental care relates to, stated that the right “is not confined to natural parents
. . . but extends to step-parents, adoptive parents and foster parents”. This statement implicitly
includes care-giving as well as non-care-giving “natural parents” and thus contradicts the view
propounded in Jooste v Botha. In Allsop v McCann 23 the Cape Provincial Division of the High
Court (now the Western Cape Division of the High Court, Cape Town) also adopted the view
that the right to parental care is not restricted to care-giving parents. In this case, the parties
were the divorced parents of two children. The court held that the children were entitled to
receive parental care from their non-care-giving parent and that he was obliged to provide
24
such care to them. In Minister of Police v Mboweni the Supreme Court of Appeal held that the
language of section 28(1)(b) suggests:
a progression from an ideal of being raised and cared for in a family, bearing in mind that concepts of family
differ among different communities in this country and that the notion of what constitutes a family is subject to
25
evolution over time, to parental care by one or both of a child’s parents, to appropriate alternative care.

________________________

15 Par 71.
16 [2014] 4 All SA 452 (SCA), 2014 (6) SA 256 (SCA).
17 Par 10.
18 Par 11.
19 2000 (2) BCLR 187 (T), 2000 (2) SA 199 (T) 208F–G.
20 On the terms “care-giving parent” and “non-care-giving parent”, see ch 14 above.
21 See also Van Zyl and Bekker 2000 De Jure 152–153; Van Marle and Brand 2001 Stell LR 415–416.
22 [2002] 2 All SA 401 (T), 2002 (2) SA 754 (T) 757C–D.
23 2001 (2) SA 706 (C).
24 [2014] 4 All SA 452 (SCA), 2014 (6) SA 256 (SCA).
25 Par 10.
 Chapter 22: Children’s rights 291

The court added that the word “parent” may include a biological, adoptive or foster parent,
26
or someone who has become a parent by means of a surrogacy agreement. Wallis JA also
expressed the view that the “conclusion that parental care necessarily means care by a custo-
27
dian parent may be unduly restrictive”.
Our courts have held that the child’s right to parental or family care must be taken into
account in all matters which affect the child, including sentencing a convicted parent,28 and
detaining a parent pending his or her deportation from the country.29
A child who is removed from family or parental care must be placed in appropriate alterna-
tive care. Since the state is obliged to provide alternative care to children who have been
removed from their family environment, it must provide appropriate facilities for and meet
the basic needs of such children. Thus, for example, the state must supply the means and
measures to give effect to its obligations to pupils who are living in schools of industry.30 The
state must also provide basic socio-economic services to children who lack family care, such as
unaccompanied foreign children.31

22.2.4 The right to be protected from maltreatment, neglect, abuse or

degradation
Many statutory and common-law rules give effect to the child’s right to be protected from
maltreatment, neglect, abuse or degradation. In the family-law context, the most important of
these are the rules regarding domestic violence, enforcement of maintenance, and child re-
moval.32 However, the child’s constitutional right to be protected from maltreatment, neglect,
abuse or degradation is clearly not limited to those rules.33

22.2.5 The right to legal representation34

Several reported cases have referred to the child’s right to legal representation in terms of
section 28(1)(h) of the Constitution. For example, in Du Toit v Minister for Welfare and Popu-
lation Development 35 the Constitutional Court stated that when the interests of children are at
stake, those interests must be “fully aired” before the court so as to avoid substantial injustice

________________________

26 Par 10 fn 7.
27 Par 10 fn 8.
28 S v Kika 1998 (2) SACR 428 (W); Howells v S [1999] 2 All SA 239 (C); 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)).
29 Patel v Minister of Home Affairs 2000 (2) SA 343 (D). Nel 2003 Journal for Juridical Science 97 argues that if a
forfeiture or confiscation order which is made against a child’s parent or care-giver in terms of the Preven-
tion of Organised Crime Act 121 of 1998 deprives the parent or care-giver of his or her ability to care for
the child, the child’s right to parental or family care is violated. The order may also violate the child’s best
interests and may therefore infringe s 28(2) of the Constitution of the Republic of South Africa, 1996. The
author submits that the child’s interests should be protected by extending the provisions of the Mediation
in Certain Divorce Matters Act 24 of 1987 to applications for asset forfeiture or confiscation. Thus, the
court which hears an application for forfeiture or confiscation which may affect a child’s interests should
only be permitted to make a forfeiture or confiscation order after considering the Family Advocate’s report
and recommendations. The Mediation in Certain Divorce Matters Act is discussed in ch 14 above.
30 Centre for Child Law v MEC for Education, Gauteng 2008 (1) SA 223 (T).
31 Centre for Child Law v Minister of Home Affairs 2005 (6) SA 50 (T).
32 On domestic violence and enforcement of maintenance, see chs 21 and 5 respectively. On child removal
and partial care facilities, see ch 23.
33 See eg S v Myburgh 2007 (1) SACR 11 (W) in which s 28(1)(d) was taken into account in sentencing a per-
son who was convicted of sexual offences regarding children.
34 Even foreign children have the right to legal representation in terms of s 28(1)(h): Centre for Child Law v
Minister of Home Affairs 2005 (6) SA 50 (T). On the right to legal representation at state expense for chil-
dren in care and contact disputes, see in general Carnelley 2010 Obiter 638. On the question whether it is
constitutionally permissible for the state to deny legal representation to children on the grounds that it
lacks the necessary resources, see Stewart 2011 International Journal of Children’s Rights 295.
35 2002 (10) BCLR 1006 (CC), 2003 (2) SA 198 (CC).
292 South African Family Law

to those children “and possibly others”.36 This case concerned the constitutionality of the pro-
hibition on adoption by same-sex couples. Here, a curator ad litem was appointed to represent
not only the children whose adoption was in issue, but also all other born and unborn chil-
dren who might be affected by the court’s order.
In Soller v G 37 the child’s right to legal representation arose within the context of an appli-
cation for variation of a care order that had been made upon divorce. In this case, one of the
children (a 15-year-old boy) sought the variation. Satchwell J pointed out that there are
few proceedings of greater import to a child/young adult of [the boy’s] age than those which
determine the circumstances of his residence and family life, under whose authority he should
live and how he should exercise the opportunity to enjoy and continue to develop a relationship
with both living parents and his sibling.38
She held that the child’s views in respect of such proceedings should be heard and should be
given “respectful and careful consideration”.39 On the facts of the case, Satchwell J concluded
that neither of the child’s parents could represent his interests in the proceedings. She further
held that a legal representative who is assigned to a child in terms of section 28(1)(h) of the
Constitution fulfils a different role than a Family Advocate does. The Family Advocate is not
appointed as any party’s representative and acts as an advisor to the court. The Family Advo-
cate is “a professional and neutral channel of communication between the conflicting parents
(and perhaps the child) and the judicial officer”.40 The child’s legal representative, on the
other hand, must give the child a voice.41 He or she must not be neutral and must present and
argue the child’s wishes and desires without simply being the child’s mouthpiece. The child’s
legal representative must also provide adult insight into the child’s wishes and desires, and
apply legal knowledge and expertise to the child’s perspective. Satchwell J concluded that the
present case was indeed an appropriate one for the appointment of a legal representative for
the child. She accordingly appointed a specific attorney to represent the boy.42
Another decision which dealt with appointment of a legal representative for a minor in
terms of section 28(1)(h) is Legal Aid Board v R.43 In this case, a 12-year-old child had sent a
mobile phone text message (or sms) to a staff member at Childline to request help because of
the very acrimonious litigation between her parents about her care. The staff member con-
tacted the Centre for Child Law, which got the Legal Aid Board (now Legal Aid South Africa)
to appoint a lawyer for the child. The child consulted with the lawyer and indicated that she
wanted him to represent her. The child’s mother objected to the appointment on the ground
that only the court or the child’s legal guardian or another person who has parental
________________________

36 Par 3; see also Seodin Primary School v MEC of Education, Northern Cape [2006] 1 All SA 154 (NC), 2006 (4)
BCLR 542 (NC). On Du Toit and adoption by same-sex couples, see further ch 20 above and ch 23 below.
37 2003 (5) SA 430 (W), Heaton and Kruger Casebook on Family Law case [75].
38 Par 7.
39 Par 10.
40 Par 27. On the Family Advocate, see further chs 14 and 15 above.
41 See also Sachs J’s postscript on the voice of the child in Christian Education South Africa v Minister of Educa-
tion 2000 (10) BCLR 1051 (CC), 2000 (4) SA 757 (CC). He found the failure to appoint a curator ad litem to
represent the children’s interests in a constitutional attack on the ban on corporal punishment in schools
unfortunate and, inter alia, stated that although parents and the state can speak on behalf of children, they
cannot “speak in their name”.
42 On the child’s right to legal representation, see further Boezaart in Heaton (ed) Law of Divorce and Dissolu-
tion of Life Partnerships 185–186, 197–201; Cockrell Bill of Rights Compendium par 3E17; Du Toit in Boezaart
(ed) Child Law in South Africa 93; Kassan in Sloth-Nielsen and Du Toit (eds) Trials and Tribulations, Trends
and Triumphs 227; Mungar in Sloth-Nielsen and Du Toit (eds) Trials and Tribulations, Trends and Triumphs
240; Schäfer Child Law in South Africa 145–150; Schäfer in Clark (ed) Family Law Service par E80; Skelton in
Sloth-Nielsen and Du Toit (eds) Trials and Tribulations, Trends and Triumphs 217; Skelton and Carnelley
(eds) Family Law 269–271; Zaal 1997 SALJ 334; Mosikatsana 1998 Michigan Journal of Race and Law 364–366;
Zaal and Skelton 1998 SAJHR 539; Barratt 2002 THRHR 569–570; Kassan 2003 De Jure 164; Sloth-Nielsen
2008 SAJHR 495; Bekink and Bekink 2009 (2) Speculum Juris 94–96; Sloth-Nielsen 2009 (2) Speculum Juris 1
et seq.
43 2009 (2) SA 262 (D), Heaton and Kruger Casebook on Family Law case [76].
 Chapter 22: Children’s rights 293

responsibilities and rights has the power to appoint a legal representative for the child. The
court rejected the mother’s objection. It held that the Legal Aid Board is empowered to
render legal assistance to a minor in terms of section 28(1)(h) and to appoint a legal repre-
sentative for a child without having to obtain either a court order authorising it to do so or
the consent of the child’s legal guardian or any other person who has parental responsibilities
and rights in respect of the child. The court further held that if the
voice of the child has been drowned out by the warring voices of her or his parents, it is a neces-
sary conclusion that substantial injustice to the child will result if he or she is not afforded the
assistance of a legal practitioner to make his or her voice heard.44
In such circumstances, section 28(1)(h) dictates that a legal representative must be appointed
for the child. The court therefore confirmed the appointment of the lawyer by the Legal Aid
Board. It further held that, after being appointed, the legal representative need not consult
with either of the child’s parents on how the matter is to proceed. The legal representative
must exercise her or his independent judgement regarding the child’s best interests in the
circumstances of the case and place such material before the court as he or she deems appro-
priate.
The relationship between section 14 of the Children’s Act and section 28(1)(h) of the Con-
45
stitution was scrutinised in FB v MB. In this case a father and his sixteen-year-old son intend-
ed to approach the court for an order that primary residence of the son be awarded to the
father, and allowing the father to remove his son from South Africa to live and study in
Portugal. They brought an urgent application for the appointment of an advocate to repre-
sent the son in the intended application. Meyer J pointed out that it had not been established
that “substantial injustice” would result if the son was not represented by his own legal practi-
tioner, as is required by section 28(1)(h). Nor had the appointment of a legal practitioner by
the state and at state expense been sought. In spite of this, the court granted the applicants
46
the relief sought by invoking section 14 of the Children’s Act. With reference to section 8(1)
47
of the Children’s Act, the court held that section 14 supplements and is broader in scope
than section 28(1)(h) of the Constitution. Section 14 does not limit a child’s right to legal
representation to those cases where “substantial injustice” would occur if the legal representa-
tive is not appointed. Also, in terms of section 14, the assistance to which the child is entitled
is not limited to a legal practitioner who is assigned by the state.
48
In MJB v DGB the Supreme Court of Appeal emphasised that, although in many matters
relating to child maintenance the dispute is between the child’s parents and the child’s
interests match those of the parent claiming maintenance on the child’s behalf, it will be
important for a child in some instances to be given a say in a maintenance matter. The form
of such participation would depend on a number of factors, such as the child’s age and the
ability of the child to express his or her views. The court declined to lay down hard and fast
rules on when it would be appropriate to appoint a legal representative for a child in a
maintenance dispute, finding that
[i]t is primarily a question of recognising the child as an autonomous individual whose right to
express views and to be heard should be tested against the nature of the dispute and the role
that the child can play in adding a significant dimension to the dispute. It is no longer the case
that children should be seen and not heard. Maintenance matters are not an exception to this
rule.49

________________________

44 Par 20.
45 2012 (2) SA 394 (GSJ), Heaton and Kruger Casebook on Family Law case [77].
46 On this provision, see further below in this chapter.
47 S 8(1) provides that the rights a child has in terms of the Children’s Act supplement those he or she has in
terms of the Bill of Rights.
48 [2013] JOL 30330 (SCA).
49 Par 20.
294 South African Family Law

22.2.6 The paramountcy of the child’s best interests

Section 28(2) of the Constitution provides that a child’s best interests are of paramount im-
portance in every matter concerning the child.50 In the past, the best interests of the child
were considered mainly in the field of family law. Now, however, they must be central in all
fields of the law. Thus, for instance, since the coming into operation of section 28(2), the
courts have taken the child’s best interests into account in sentencing a child offender,51
sentencing an offender who committed sexual crimes involving children,52 sentencing a parent
who had been convicted of a crime,53 deciding whether to allow the media to attend a trial
54
involving an accused minor, deciding whether to detain a father pending his possible depor-
tation,55 in respect of the testimony of child witnesses in criminal cases and of child victims of
crime,56 in respect of the detention and deportation of unaccompanied foreign children from
South Africa,57 in respect of matters concerning education,58 in assessing damages in a delict-
59
ual claim, and in deciding whether to allow a child to claim compensation for a life with
60
disability in “wrongful life” cases.
In providing that the child’s best interests are “paramount”, the drafters of the Constitution
imposed a stricter requirement than that which applies in terms of the United Nations
________________________

50 On s 28(2), see the cases which are cited under this subheading; Fraser v Naudé 1998 (11) BCLR 1357 (CC),
1999 (1) SA 1 (CC); Jooste v Botha 2000 (2) BCLR 187 (T), 2000 (2) SA 199 (T); Christian Education South
Africa v Minister of Education 2000 (10) BCLR 1051 (CC), 2000 (4) SA 757 (CC); Centre for Child Law v Minis-
ter of Home Affairs 2005 (6) SA 50 (T); Director of Public Prosecutions, KwaZulu-Natal v P 2006 (3) SA 515
(SCA); B v M [2006] 3 All SA 109 (W), 2006 (9) BCLR 1034 (W); Barratt (ed) Persons and the Family 182;
Cockrell Bill of Rights Compendium par 3E19; Schäfer Law of Access to Children 26–27, 28; Schäfer Child Law in
South Africa 153–154; Schäfer in Clark (ed) Family Law Service par E81; Skelton in Boezaart (ed) Child Law in
South Africa 280–284; Skelton and Carnelley (eds) Family Law 240–241; Mosikatsana 1998 Michigan Journal
of Race and Law 390–392; Bonthuys 2002 SALJ 779–780; Bekink 2003 THRHR 254–255; Nel 2003 Journal for
Juridical Science 97; Bekink and Bekink 2004 De Jure 21; Mailula (2005) 1 Codicillus 15; McLaren 2005 Respon-
sa Meridiana 119; Bonthuys 2006 International Journal of Law, Policy and the Family 23; Couzens 2010 THRHR
266; Mills 2014 SALJ 847.
51 Centre for Child Law v Minister of Justice and Constitutional Development 2009 (11) BCLR 1105 (CC), 2009 (6)
SA 632 (CC).
52 S v Myburgh 2007 (1) SACR 11 (W).
53 S v Kika 1998 (2) SACR 428 (W); Howells v S [1999] 2 All SA 239 (C); 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)); S v Londe 2011 (1) SACR 377 (ECG); MS v S (Centre for Child Law as
Amicus Curiae) 2011 (2) SACR 88 (CC). On the influence of the best interests of the child on the sentenc-
ing of primary care-givers, see Skelton 2008 Constitutional Court Review 351; Gallinetti 2010 SA Public Law
108; Erasmus 2010 SA Public Law 125; Coetzee 2010 (3) PELJ 126; Mujuzi 2011 SACJ 164; Skelton and Cour-
tenay 2012 SACJ 180; Carnelley and Epstein 2012 SACJ 106; Moyo 2013 SAJHR 314.
54 Media 24 Ltd v National Prosecuting Authority (Media Monitoring Africa as Amicus Curiae): In re S v Mahlangu
2011 (2) SACR 321 (GNP).
55 Patel v Minister of Home Affairs 2000 (2) SA 343 (D).
56 S v Mbhokani 2009 (1) SACR 533 (T); Director of Public Prosecutions, Transvaal v Minister of Justice and Constitu-
tional Development 2009 (7) BCLR 637 (CC), 2009 (4) SA 222 (CC).
57 Centre for Child Law v Minister of Home Affairs 2005 (6) SA 50 (T).
58 Laerskool Middelburg v Departementshoof, Mpumalanga Departement van Onderwys 2003 (4) SA 160 (T); Western
Cape Minister of Education v Governing Body of Mikro Primary School 2005 (10) BCLR 973 (SCA) (also reported
as Minister of Education, Western Cape v Governing Body, Mikro Primary School [2005] 3 All SA 436 (SCA), 2006
(1) SA 1 (SCA)); Head of Mpumalanga Department of Education v Hoërskool Ermelo 2010 (3) BCLR 177 (CC);
Schneider v AA [2010] 3 All SA 332 (WCC), 2010 (5) SA 203 (WCC); Governing Body, Hoërskool Fochville v Cen-
tre for Child Law 2014 (6) SA 561 (GJ). On the application of the child’s best interests in the context of edu-
cation, see further Malherbe in Boezaart (ed) Child Law in South Africa 439–441; Maluleke Dec 2005 De Rebus
37; Visser 2007 THRHR 459; Malherbe 2008 TSAR 267; Smit 2008 THRHR 38; Mawdsley, Beckman, De
Waal and Russo 2010 (Special Edition) Journal for Juridical Science 1; Colditz and Deacon 2010 (Special Edi-
tion) Journal for Juridical Science 123; Heaton 2010 Annual Survey of South African Law 451 et seq; Coetzee and
Mienie 2014 SA Public Law 90.
59 Singh v Ebrahim [2010] 3 All SA 187 (D); Coughlan NO v Road Accident Fund [2015] ZACC (20 April 2015).
See also Heaton 2010 Annual Survey of South African Law 451.
60 H v Fetal Assessment Centre 2015 (2) BCLR 127 (CC), 2015 (2) SA 193 (CC).
 Chapter 22: Children’s rights 295

Convention on the Rights of the Child and the African Charter on the Rights and Welfare of
the Child. These international instruments respectively render the child’s best interests “a
primary consideration” and “the primary consideration” in all actions concerning the child.61
A “primary consideration” bears less weight than something which is of “paramount
importance”. This is so because the word “paramount” refers to something which is more
important than anything else or superior to everything else, while “primary” signifies some-
thing which is first in rank or of principal importance.62 Section 28(2) thus elevates the child’s
best interests to the supreme issue in any matter concerning the child. Applied literally and in
isolation, the section would mean that the child’s best interests must invariably prevail. How-
ever, the Constitutional Court has on several occasions made it clear that rendering the child’s
best interests paramount does not mean that all other constitutional rights may simply be
ignored, or that limitations of the child’s best interests are impermissible.63 According to the
Constitutional Court’s decision in M v S (Centre for Child Law, Amicus Curiae),64 the correct
approach is to apply the “paramountcy principle in a meaningful way without unduly oblite-
rating other valuable and constitutionally protected interests”. This statement is in line with
earlier decisions in which the court had held that there is no constitutional hierarchy of
rights65 and that the limitation of constitutional rights involves the weighing up of competing
interests and an assessment of proportionality.66
Although confusing judicial statements have been made in the past as to whether section
28(2) constitutes a separate, enforceable constitutional right or whether it is a right only if it
67
is applied in conjunction with section 28(1) it seems that the view that section 28(2) confers
________________________

61 Art 3(1) of the Convention; art 4(1) of the Charter. The Convention and Charter are discussed below in
this chapter.
62 Allen (consultant ed) The Penguin English Dictionary 640, 698; Soanes and Stevenson (eds) Concise Oxford
English Dictionary 1038, 1139.
63 Minister of Welfare and Population Development v Fitzpatrick 2000 (7) BCLR 713 (CC), 2000 (3) SA 422 (CC);
LS v AT 2001 (2) BCLR 152 (CC) (also reported as Sonderup v Tondelli 2001 (1) SA 1171 (CC)); M v S (Cen-
tre 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)). See also the obiter statement in De Reuck v
Director of Public Prosecutions (Witwatersrand Local Division) 2003 (12) BCLR 1333 (CC), 2004 (1) SA 406
(CC), 2003 (2) SACR 445 (CC) par 55.
64 2007 (12) BCLR 1312 (CC) (also reported as S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232
(CC), 2007 (2) SACR 539 (CC)) par 25.
65 South African Broadcasting Corp Ltd v National Director of Public Prosecutions 2007 (2) BCLR 167 (CC), 2007 (1)
SA 523 (CC); Johncom Media Investments Ltd v M 2009 (8) BCLR 751 (CC), 2009 (4) SA 7 (CC).
66 See eg S v Makwanyane 1995 (6) BCLR 665 (CC), 1995 (3) SA 391 (CC); National Coalition for Gay and Les-
bian Equality v Minister of Justice 1998 (12) BCLR 1517 (CC), 1999 (1) SA 6 (CC); Johncom Media Investments
Ltd v M 2009 (8) BCLR 751 (CC), 2009 (4) SA 7 (CC). On conflicts between a parent’s right to freedom of
religion and his or her child’s constitutional rights in the context of medical decisions, see Hay v B 2003 (3)
SA 492 (W); Bekink 2003 THRHR 246; McQuoid-Mason and Lotz 2005 THRHR 315; Robinson 2006 De Jure
610. On a parent’s refusal to consent to medical tests on and treatment of his or her child, see ch 23 below.
On conflicts between the best interests of more than one child in the context of the separation of con-
joined twins, see Robinson 2003 THRHR 131. On conflicts of interests between children and their parents,
see Robinson 2013 THRHR 400. On conflicts between a parent’s right to privacy and his or her child’s con-
stitutional rights, see DEB v MGB [2013] JOL 30489B (KZD).
67 See eg 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)) where the Consti-
tutional Court at times suggested that s 28(2) is a separate constitutional right, but mostly linked s 28(2) to
s 28(1) when referring to a right; occasionally it referred simply to “section 28” when referring to a right.
Thus, eg, the court cited Minister of Welfare and Population Development v Fitzpatrick 2000 (7) BCLR 713, 2000
(3) SA 422 (CC); LS v AT 2001 (2) BCLR 152 (CC) (also reported as Sonderup v Tondelli 2001 (1) SA 1171
(CC)); Du Toit v Minister for Welfare and Population Development 2002 (10) BCLR 1006 (CC), 2003 (2) SA 198
(CC); and De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) 2003 (12) BCLR 1333 (CC),
2004 (1) SA 406 (CC), 2003 (2) SACR 445 (CC) as authority for the view that “section 28(2), read with sec-
tion 28(1)”, establishes a “set of children’s rights that courts are obliged to enforce”: par 14. And in the first
sentence of par 26 the court stated that “section 28” does not trump “other rights”. Later in par 26 the
court made a statement that was restricted to s 28(2) and implied that that section embodies a right: it
continued
296 South African Family Law

an independent right on children currently prevails. For instance, with reference to two of its
68
earlier decisions, the Constitutional Court recently stated in J v National Director of Public
69
Prosecutions (Childline South Africa and others as Amici Curiae) that “[t]his Court has held that
the ‘best interests’ . . . principle creates a right that is independent and extends beyond the
70
recognition of other children’s rights in the Constitution. In Teddy Bear Clinic for Abused
71
Children v Minister of Justice and Constitutional Development the Constitutional Court held that
section 28(2) is “both a self-standing right and a guiding principle in all matters affecting
72
children”.

22.3 The United Nations Convention on the Rights of the Child

South Africa has ratified the United Nations Convention on the Rights of the Child.73 It must
therefore comply with the obligations the Convention imposes on state parties. Like the chil-
dren’s rights clause in the Constitution, the Convention confers special protection on children
below the age of 18 years.74 The Convention deals with many of the rights which are also
enshrined in our Constitution, such as the right to life, the child’s right to a name and national-
ity, the right to freedom of expression, thought and conscience, freedom of religion, freedom
of association, the right to privacy, the right to be free from violence, abuse, neglect, mal-
treatment and exploitation, the right to education, and the right to be protected from work
which is hazardous to the child.75 The Convention further stipulates that the best interests of
the child must be “a primary” consideration in all actions concerning the child.76 Among the
many other provisions of the Convention are the injunction that children who are capable of
forming their own views must be given the right to express those views freely in all matters
affecting them, and that those views must be given due weight, taking the child’s age and
maturity into account.77 This injunction is echoed in the Children’s Act 38 of 2005.78
________________________

referred to De Reuck and stated that the court held that s 28(2) does not assume dominance over “other
constitutional rights”. After quoting from De Reuck the court returned to referring to the whole of s 28 and
used the phrase “section 28 rights”. However, later in the same paragraph it stated that the ambit of the
child’s best interests (ie, s 28(2)) can be limited “[l]ike all rights in the Bill of Rights”. Mostly, however,
when it referred to the paramountcy of the best interests of the child it called it a “principle”: pars 23, 24,
25, 36 and 42. Once it referred to section 28(2) as an “injunction”, and once it referred to the whole of sec-
tion 28 as creating “enforceable legal rules”: pars 26 and 14, respectively.
68 Minister of Welfare and Population Development v Fitzpatrick 2000 (7) BCLR 713, 2000 (3) SA 422 (CC) and
Fraser v Naude 1998 (11) BCLR 1357 (CC), 1999 (1) SA 1 (CC).
69 2014 (7) BCLR (CC). See also Stevens 2014 PELJ 2779.
70 Par 35.
71 2014 (2) SA 168 (CC).
72 Par 65.
73 Ratification took place on 16 June 1995.
74 Art 1.
75 Arts 6, 7, 13–16, 19, 28, 32; compare ss 11, 28(1)(a), 16, 15, 18, 14, 12(1)(c), 28(1)(d), 29, 28(1)(e) and (f)
of the Constitution, respectively.
76 Art 3(1). See also Committee on the Rights of the Child General Comment No 14 (2013) on the Right of the
Child to have his or her Best Interests Taken as a Primary Consideration (art 3 para 1), which is intended to guide
decisions by persons concerned with children, including parents and care-givers.
77 Art 12. On the implementation of this provision in South African law, see Moyo 2015 SAJHR 173.
78 On the child’s right to be heard, see ss 10 and 31 of the Children’s Act and chs 14 above and 23 below. On
the Convention, see further Barrie Bill of Rights Compendium par 1B19; Boniface in Sloth-Nielsen and Du
Toit (eds) Trials and Tribulations, Trends and Triumphs 151; Burman (ed) The Fate of the Child chs 7 and 8;
Davel in Davel and Skelton (eds) Commentary on the Children’s Act 2-14–2-16; Du Toit in Boezaart (ed) Child
Law in South Africa 94–95; Human Die Invloed van die Begrip Kinderregte op die Privaatregtelike Ouer–Kind Verhou-
ding 226–249, 299–300; Human Bill of Rights Compendium pars 3EA28–3EA32; Klothen in Pollecutt et al (eds)
The Legal Rights of Children in South Africa 27–33; Kruger 431–453, 486–489; Mahery in Boezaart (ed) Child
Law in South Africa 309; Schäfer Child Law in South Africa 90–93; Van der Vyver in Robinson (ed) Law of
Children and Young Persons 315–319; Van Heerden in Van Heerden et al (eds) Boberg’s Law of Persons and the
Family 315–316; Sloth-Nielsen 1995 SAJHR 401; Viljoen 1998 CILSA 198; Human 2000 Journal for Juridical
Science 134 et seq; Robinson and Ferreira 2000 De Jure 54; Sloth-Nielsen 2001 SAJHR 210; Kaime 2005 African
continued
 Chapter 22: Children’s rights 297

22.4 The African Charter on the Rights and Welfare of the Child
South Africa has also ratified the African Charter on the Rights and Welfare of the Child.79
Many of the provisions of the Children’s Act embody the obligations South Africa has incur-
red by ratifying this Charter. As is the case in respect of the Convention on the Rights of the
Child, the provisions of the Charter apply to children below the age of 18 years.80 And, like
the Convention, the Charter deals with many of the rights which are enshrined in our Consti-
tution, such as the child’s rights to life, to a name and nationality, to freedom of thought,
conscience, religion, expression and association, to privacy, to education, to freedom from all
forms of torture, inhuman or degrading treatment, to physical and mental abuse, neglect or
maltreatment, and to be protected from all forms of economic exploitation and performing
work which is likely to be hazardous or to interfere with his or her development.81 The Char-
ter further stipulates that the best interests of the child must be “the primary” consideration
in all actions concerning the child.82 The Charter also provides that every child must be given
an opportunity to express his or her views in all judicial and administrative proceedings which
affect him or her and to have those views taken into consideration in accordance with the
provisions of the law.83
Apart from affording rights to the child, the Charter provides that every child has respon-
sibilities towards his or her family, society and the state, must work for the cohesion of the
family and must respect his or her parents, superiors and elders at all times.84

22.5 The Children’s Act 38 of 2005

The rights a child has in terms of the Children’s Act supplement those the Constitution con-
fers on every child.85 The Act inter alia seeks to give effect to the child’s constitutional rights to
________________________

Human Rights Law Journal 221; Esser 2006 De Jure 391–392; Rosa and Dutschke 2006 SAJHR 224; Davel and
Mungar 2007 THRHR 69–71; Himonga and Cooke 2007 International Journal of Children’s Rights 331–332;
Mezmur 2008 SA Public Law 1; Sloth-Nielsen 2008 SAJHR 496–498; Sloth-Nielsen and Mezmur 2008 Interna-
tional Journal of Children’s Rights 1; Skelton 2009 African Human Rights Law Journal 482; Bekink and Bekink
2009 (2) Speculum Juris 106–107; Sloth-Nielsen 2009 (2) Speculum Juris 2–3; Van der Walt 2010 Obiter 715;
Nhenga-Chakarisa 2010 African Human Rights Law Journal 161; Skelton 2010 SAJHR 141 (also published in
Goldblatt and McLean Women’s Social and Economic Rights 58); Okon 2012 African Human Rights Law Journal
373; Durojaye 2011 CILSA 1. On the child’s right to health under the Convention and the view that this
right may be used to support a right to a clean environment for children, see Du Plessis 2005 Responsa Me-
ridiana 126. On the child’s right to participate in the context of discipline in schools, see Reyneke 2013 De
Jure 206.
79 Ratification took place on 7 Jan 2000.
80 Art 2 of the Charter. On the Convention on the Rights of the Child, see above in this chapter.
81 Arts 5(1), 6, 9(1), 7, 8, 10, 11(1), 16(1) and 15(1), respectively.
82 Art 4(1).
83 Art 4(2).
84 Art 31. On the Charter, see further Davel in Davel and Skelton (eds) Commentary on the Children’s Act 2-16;
Du Toit in Boezaart (ed) Child Law in South Africa 94–95; Human Bill of Rights Compendium par 3EA41.2;
Kaime 1 et seq; Schäfer Child Law in South Africa 94–97; Viljoen in Boezaart (ed) Child Law in South Africa
331; Viljoen 1998 CILSA 198, 1999 SALJ 660; Davel 2002 De Jure 281; Rosa and Dutschke 2006 SAJHR 224;
Davel and Mungar 2007 THRHR 71–72; Himonga and Cooke 2007 International Journal of Children’s Rights
332–333; Mezmur 2007 African Human Rights Law Journal 258; Sloth-Nielsen 2008 SAJHR 496–498; Mezmur
and Sloth-Nielsen 2008 African Human Rights Law Journal 596; Sloth-Nielsen and Mezmur 2009 African Hu-
man Rights Law Journal 336; Nhenga-Chakarisa 2010 African Human Rights Law Journal 161; Skelton 2010
SAJHR 141 (also published in Goldblatt and McLean Women’s Social and Economic Rights 58); Okon 2012 Af-
rican Human Rights Law Journal 373; Durojaye 2011 CILSA 1. For a comparison of the Convention on the
Rights of the Child and the African Charter on the Rights and Welfare of the Child, see Mezmur 2008 SA
Public Law 1. On textual differences between the Convention and the Charter and the extent to which
those differences have played a role in child law decisions in Eastern and Southern Africa, see Skelton 2009
African Human Rights Law Journal 482. On the 14th and 15th sessions of the African Committee of Experts
on the Rights and Welfare of the Child, see Sloth-Nielsen and Mezmur 2010 African Human Rights Law Jour-
nal 534.
85 S 6(2)(a) read with s 8(1) of the Children’s Act.
298 South African Family Law

family or parental care or appropriate alternative care when removed from the family envi-
ronment, to social services, to be protected from maltreatment, neglect, abuse or degrada-
tion, and to have his or her best interests afforded paramountcy in every matter concerning
him or her.86 The Act also seeks to give effect to the obligations concerning the well-being of
children that South Africa has incurred in terms of international instruments such as the
Convention on the Rights of the Child and the African Charter on the Rights and Welfare of
the Child.87
Section 6 of the Act sets out general principles which must guide the implementation of
legislation and guide proceedings, actions and decisions by organs of state relating to a specific
child or children in general.88 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 in-
terests of the child standard that is set out in section 7 of the Act, and the rights and principles
contained in the Act.89 In addition, section 9 requires that the standard that the child’s best
interests are 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 equit-
ably, protect him or her from unfair discrimination on any ground (including his or her own
health status or that of a family member), and recognise his or her need for development and
to engage in play and other recreational activities appropriate to his or her age.90 If the child
is disabled, his or her disability must be recognised and an enabling environment must be
created to respond to his or her special needs.91 Furthermore, section 11 lists specific issues
92
which must be considered in respect of children with disabilities or chronic illnesses.
Section 6 also provides that, having regard to his or her age, maturity and stage of develop-
ment, the child must be informed of any action or decision in a matter which significantly
affects him or her,93 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.94 In addition, section
10 affords every child who is of such an age, maturity and stage of development as to be able
to participate in a matter concerning him or her, the right to participate in that matter in an
appropriate way. Due consideration must be given to the child’s views.95 Section 6 further re-
quires that an approach which is conducive to conciliation and problem-solving must be adopt-
ed in any matter concerning 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.96
Section 12 affords every child the right not to be subjected to social, cultural and religious
practices which are detrimental to his or her well-being.97 The section specifically provides
________________________

86 S 2(b); compare s 28(1)(b), (d) and (2) of the Constitution.

87 S 2(b). On these international instruments, see above in this chapter.
88 S 6(1).
89 S 6(2)(a). On the child’s best interests, see further above in this chapter and ch 14 above.
90 S 6(2)(b)–(e).
91 S 6(2)(f).
92 On these provisions, see in general Boezaart 2011 THRHR 264.
93 S 6(5). On this right, see also ch 14 above.
94 S 6(3).
95 On s 10, see further ch 14 above; Davel in Davel and Skelton (eds) Commentary on the Children’s Act 2-14–
2-17; Schäfer Child Law in South Africa 163–166; Sloth-Nielsen 2009 (2) Speculum Juris 5–6.
96 S 6(4).
97 S 12(1). On the provisions of s 12 regarding genital mutilation, virginity testing and circumcision, see fur-
ther Davel in Davel and Skelton (eds) Commentary on the Children’s Act 2-22–2-24; Kassan and Mahery in
Boezaart (ed) Child Law in South Africa 187–194; Ngidi in Boezaart (ed) Child Law in South Africa 237–240;
Schäfer Child Law in South Africa 166–167, 169–173; Schäfer in Clark (ed) Family Law Service pars E214–
217; Moodley 2008 SA Public Law 65; Bennett, Mills and Munnick 2010 TSAR 254; Ncube and Ross Dec
2012 SAJBL 67; Vawda and Maqutu June 2011 SAJBL 36; Sonnekus 2012 TSAR 758; Sloth-Nielsen 2012
continued
 Chapter 22: Children’s rights 299

that children below the minimum legal age for marriage may not marry or get engaged at
all.98 Once they reach the minimum marriageable age, they may not be given out in marriage
or engagement without their consent.99 The section further prohibits female circumcision
and genital mutilation, and virginity testing of children below the age of 16 years.100 A virginity
test may be performed on a child who is over the age of 16 years only if it is done in the
manner that is prescribed by the regulations under the Act and the child has consented in
the prescribed manner and has received proper counselling.101 The results of the test may not
be disclosed without the child’s consent, and the body of a child who has undergone the test
may not be marked.102 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 medi-
cal practitioner or for religious purposes in accordance with the practices of the particular
religion (for example, the Jewish faith).103 Taking into consideration his age, maturity and
stage of development, every male child has the right to refuse circumcision.104 If the child has
already turned 16, he may be circumcised only if the circumcision is performed in the man-
ner prescribed by the regulations and he has given consent in the prescribed manner and has
received proper counselling.105
Section 13 entitles every child to access to information on health promotion, the preven-
tion and treatment of ill-health and disease, sexuality, reproduction, his or her health status
and the causes and treatment of his or her health status. It also affords the child the right to
confidentiality regarding his or her health status and the health status of his or her parent,
care-giver or family member, unless maintaining such confidentiality is not in the child’s best
interests.106 The health information which is provided must be relevant and must be in a for-
mat which is accessible to children. In providing the information, due consideration must be
given to the needs of disabled children.107
Section 14 empowers every child to bring and to be assisted in bringing a matter to court.
The section re-affirms the constitutional right of access to court108 and relates it specifically to
children.109 It also supplements section 28(1)(h) of the Constitution, and provides wider
________________________

Law, Democracy and Development 69; McQuoid-Mason 2013 SAMJ 283; Millard and Goldstuck 2013 SAMJ
436.
98 S 12(2)(a). On the minimum age for entering into a civil marriage, civil union and customary marriage,
see chs 3, 16 and 17 above. On the minimum age for entering into an engagement, see ch 2 above.
99 S 12(2)(b).
100 S 12(3) and (4); see also s 8(b) of the Promotion of Equality and Prevention of Unfair Discrimination Act
4 of 2000.
101 S 12(5).
102 S 12(6) and (7).
103 S 12(8).
104 S 12(10).
105 S 12(9).
106 S 13(1). Generally on the dilemma created by a medical practitioner’s duty to maintain confidentiality
concerning his or her minor patient if the patient’s parents want access to medical information regarding
their child, see Slabbert 2004 (2) PELJ 165. See further Pienaar 2014 SAJHR 508.
107 S 13(2).
108 S 34 of the Constitution.
109 It is submitted that the reference to the child’s having the right to be “assisted in bringing a matter to a
court” concerns the rule that, generally, a minor does not have the capacity to litigate independently. The
common law provides that the legal guardian of a minor who is below the age of 7 years must litigate on
the minor’s behalf, while a minor over the age of 7 years may litigate with his or her guardian’s assistance
or the guardian may litigate on the minor’s behalf: see eg Voet 2.4.4, 5.1.11; Grotius 1.8.4; Van Leeuwen
Rooms-Hollands-Regt 5.3.5; Van der Keessel Theses Selectae 127; Wolman v Wolman 1963 (2) SA 452 (A); Presi-
dent Insurance Co Ltd v Yu Kwam 1963 (3) SA 766 (A). Even though the common law already regulates the
minor’s capacity to litigate, s 14 of the Children’s Act confers a statutory entitlement to assistance in legal
proceedings on every child. The assistance the section refers to does not necessarily mean that the child is
entitled to legal representation. It simply means that if the child is over the age of 7 years he or she has the
right to require that his or her limited capacity to litigate is supplemented by means of the assistance of his
or her guardian, a curator ad litem or the High Court. As the section refers to “[e]very” child, it is arguable
continued
300 South African Family Law
110
protection than section 28(1)(h). Section 15 lists the persons who may approach the court
to enforce the rights which are conferred by the Bill of Rights and the Children’s Act, namely:
(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.
111
(3) Anyone acting as a member of, or in the interest of a group or class of persons.
(4) Anyone acting in the public interest.112
Apart from conferring rights on children, the Act provides that every child has responsibilities
appropriate to his or her age and ability towards his or her family, community and the state.113

________________________

that the section amends the common law by conferring limited capacity to litigate on a minor below the
age of 7 years and entitling him or her to assistance which will supplement such limited capacity: see also
Heaton Persons 88; Boezaart 2013 De Jure 707. Schäfer Child Law in South Africa 173 is of the view that the
scope of s 14 is unclear. He seems unsure as to whether or not the section affords unfettered locus standi
on a minor. He points out that although there are obvious policy reasons for affording children locus stan-
di to approach a court unassisted, a child should not be able to challenge every decision which a parent or
care-giver takes in the exercise of parental responsibilities and rights.
110 FB v MB 2012 (2) SA 394 (GSJ). In this case the court held that a request by a child to be assisted by his or
her own legal representative in legal proceedings will “only be refused in exceptional circumstances, since
the child concerned, particularly where he or she is a party to the proceedings, will otherwise be placed in
a worse position than all other natural or legal personae that enjoy such right”: par 13. On this decision
see further above in this chapter.
111 In Jonker v Manager, Gali Thembani/JJ Serfontein School [2013] JOL 30108 (E) a grandmother brought an
application on behalf of her grandson and other children in a similar situation to prevent their relocation
to another child and youth care centre.
112 S 15(2). The list resembles the one in s 38 of the Constitution.
113 S 16.
 23
PARENTAL RESPONSIBILITIES AND RIGHTS

23.1 The contents of parental responsibilities and rights

23.1.1 General
In terms of the common law, parents have parental authority (or parental power) over their
children. This authority gives parents rights, powers, duties and responsibilities in respect of
their minor children and the children’s property. Section 1(1) of the Children’s Act 38 of
2005 uses the term “parental responsibilities and rights” instead of “parental authority”.
Parental responsibilities and rights include caring for the child, maintaining contact with the
child, acting as the child’s guardian, and contributing to the child’s maintenance.1

23.1.2 Guardianship
In terms of section 18(3) of the Children’s Act, “guardianship” refers to administering and
safeguarding a child’s property and property interests, assisting or representing the child in
administrative, contractual and other legal matters, and giving or refusing consent that is
legally required in respect of the child. The administration of the child’s estate includes
acquiring and controlling assets and incurring and satisfying debts on the child’s behalf.
Thus, for example, the guardian receives amounts owed to the child, pays debts owed by the
child, and alienates the minor’s property.2 The child is the owner of all the property in his or
her estate, regardless of the source from which the property emanates. All the child’s earn-
ings also belong to the child, but the parent is entitled to as much of the child’s income and
assets as he or she needs for the child’s maintenance.3 A parent is not entitled to compensa-
tion for controlling the child’s estate, and is obliged to control the estate like a bonus et diligens
paterfamilias (that is, a prudent and diligent person), otherwise the child can sue the parent
for delictual damages.4 Provided that he or she acts openly and in good faith, the guardian
may assist the child in a juristic act in which the guardian’s own interests are involved.5
Before the guardian takes a decision regarding the child’s marriage, adoption, departure
or removal from South Africa, the child’s application for a passport, or the alienation or
encumbrance of any immovable property of the child, he or she must give due consideration
to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and
stage of development.6
________________________

1 S 1(1) read with s 18(2) of the Children’s Act 38 of 2005.

2 S 80 of the Administration of Estates Act 66 of 1965 stipulates that a parent or guardian may not burden or
alienate the child’s immovable property without the consent of the High Court or the Master of the High
Court.
3 See below in this chapter on a parent’s duty to support his or her child.
4 Grotius 1.8.7, 3.26.8; Voet 26.7.1, 27.8.12; Sackville West v Nourse 1925 AD 516.
5 Peffers v Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund Board of Control 1965 (2) SA 53 (C).
6 S 31(1)(a) and (b) of the Children’s Act; see also s 10. The scope of the duty s 31(1)(a) imposes is more ex-
tensive than that which s 10 imposes: see Heaton in Davel and Skelton (eds) Commentary on the Children’s Act
3-32–33-33. See also HG v CG 2010 (3) SA 352 (ECP).

301
302 South African Family Law

23.1.3 Care
Section 1(1) of the Children’s Act defines “care” as encompassing the following:
(1) Within available means, providing the child with a suitable place to live, living conditions
which are conducive to the child’s health, well-being and development, and the neces-
sary financial support. Thus, care encompasses providing the child with maintenance.
However, the fact that maintenance is included under care does not mean that the
common-law duty of support has suddenly ceased to exist, as the Children’s Act did not
7
expressly abolish the common-law rules relating to maintenance of a child. The duty to
provide maintenance for a child is discussed in detail below in this chapter.
(2) Safeguarding and promoting the child’s well-being.
(3) Protecting the child from maltreatment, abuse, neglect, degradation, discrimination,
exploitation and any other physical and moral harm or hazards.
(4) Respecting, protecting, promoting and securing the fulfilment of, and guarding against
any infringement of the child’s constitutional rights and the rights set out in the Chil-
dren’s Act.
(5) Guiding and directing the child’s education and upbringing in a manner which is ap-
propriate 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 interests are the paramount concern in all mat-
ters affecting the child.
The person who has care may decide where the child is to reside,8 with whom the child may
associate, which school the child is to attend,9 whether the child should undertake tertiary
education, what religious education the child should receive, whether the child may attend
specific social events, in which language the child is to be brought up, whether and what med-
ical treatment the child should receive, and so forth.10 As the Children’s Act did not expressly
abolish this right, the care-giving parent11 still has the right to discipline the child. The discip-
line may include moderate and reasonable corporal punishment.12
________________________

7 Barratt (ed) Persons and the Family 190; Schäfer Child Law in South Africa 226. See also GM v KI 2015 (3) SA
62 (GJ).
8 Although the person who has care may decide where the child is to reside, he or she may not emigrate with
the child without the consent of all the guardians of the child, unless the court authorises the emigration:
see below in this chapter.
9 On the non-care-giving parent’s liability for school fees, see Fish Hoek Primary School v GW [2010] 2 All SA
124 (SCA), 2010 (4) BCLR 331 (SCA), 2010 (2) SA 141 (SCA). See further Carnelley 2011 (6) PELJ 34;
Maithufi 2012 De Jure 630.
10 See eg Simleit v Cunliffe 1940 TPD 67; Landmann v Mienie 1944 OPD 59; Scott v Scott 1946 WLD 399; Dreyer v
Lyte-Mason 1948 (2) SA 245 (W); Martin v Mason 1949 (1) PH B9 (N); Wolfson v Wolfson 1962 (1) SA 34 (SR);
Engar and Engar v Desai 1966 (1) SA 621 (T); Kustner v Hughes 1970 (3) SA 622 (W); Matthee v MacGregor
Auld 1981 (4) SA 637 (Z); Mentz v Simpson 1990 (4) SA 455 (A); Allsop v McCann 2001 (2) SA 706 (C); Bestuurs-
liggaam van Gene Louw Laerskool v Roodtman [2003] 1 All SA 87 (C) (also reported as Governing Body, Gene
Louw Primary School v Roodtman 2004 (1) SA 45 (C)); J v J 2008 (6) SA 30 (C).
11 On the terms “care-giving parent” and “non-care-giving parent”, see ch 14 above.
12 R v Janke & Janke 1913 TPD 382; Du Preez v Conradie 1990 (4) SA 46 (B). A parent who exceeds the bounds
of reasonableness can be charged with several offences (see ch 21 above) and be held liable in delict for
the injuries he or she inflicted. On the power to discipline the child and the constitutionality of this power,
see further R v Muller 1948 (4) SA 848 (O); Germani v Herf 1975 (4) SA 887 (A); S v Lewis 1987 (3) SA 24
(C); Barratt (ed) Persons and the Family 188–189; Benatar in Keightley (ed) Children’s Rights 197; Heaton Bill
of Rights Compendium par 3C41; Schäfer Child Law in South Africa 133–138; Spiro 89–90; Van der Vyver and
Joubert 610; Van Heerden in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 668–680; Van
continued
 Chapter 23: Parental responsibilities and rights 303

The person who has care enjoys a broad discretion in respect of the exercise of the respon-
sibilities and rights encompassed by care. However, bearing in mind the child’s age, maturity
and stage of development, the person must give due consideration to any views and wishes ex-
pressed by the child before he or she takes a decision which affects contact between the child
and a co-holder of parental responsibilities and rights or is likely to significantly change13 or
have an adverse effect on the child’s living conditions, education, health, personal relations
with a parent or family member or, generally, on the child’s well-being.14
The court is reluctant to interfere in the discretion of the person who has care.15 For exam-
ple, in Martin v Mason 16 divorced parents disagreed on the school their child should attend.
The court was asked to select the appropriate school, but refused to do so. It held that in the
case of parental disagreement, the duty to choose a school does not fall upon the court, since,
unless good cause was shown, [the court] did not arrogate to itself functions which ought nor-
mally to be performed by one or other of the parents. The duty to care for the child devolved in
the first instance upon the custodian parent [that is, the care-giving parent], and it was only
where that duty was not being properly performed that the Court would interfere.17

23.1.4 Contact
Contact refers to maintaining a personal relationship with the child and communicating with
the child on a regular basis if the child lives with someone else. Communication may take
place in person (for example, by visiting the child or being visited by the child) or in another
format (for example, via telephone calls, telefaxes, letters, videos, video calls, social media,
electronic mail and mobile phone text messages).18
While a person exercises his or her right of contact, he or she is temporarily empowered to
exercise responsibilities and rights that are normally exercised by the person who has care.
For example, in Allsop v McCann 19 the court held that a father to whom contact had been
awarded may give his children religious instruction even if his religious views differ from
those of the care-giving parent. However, if the difference in religious instruction causes
harmful confusion to the children, the court could be asked to intervene in the best interests
of the child.

23.1.5 Maintenance
(a) General
Food, clothing, accommodation, medical care and a suitable education are all included in
maintenance.20

________________________

Oosten and Louw in Robinson (ed) Law of Children and Young Persons 133–134; Visser and Potgieter 206–
207; Wille’s Principles 1138–1139; Heaton 1987 THRHR 398; Labuschagne 1996 TSAR 577; Pete 1998 SAJHR
430; Labuschagne 2000 De Jure 146; Clark 2002 CILSA 223–224; Labuschagne 2002 De Jure 327; Bekink 2006
SACJ 173.
13 When a decision is “likely to significantly change” the child’s living conditions, education, health, personal
relations with a parent or family member or, generally, the child’s well-being is unclear. See further HG v
CG 2010 (3) SA 352 (ECP); Heaton in Davel and Skelton (eds) Commentary on the Children’s Act 3-33.
14 S 31(1)(a) and (b) of the Children’s Act. See also s 10 of the Children’s Act and fn 6 above.
15 On interference with parental responsibilities and rights, see further below in this chapter.
16 1949 (1) PH B9 (N).
17 24.
18 S 1(1) of the Children’s Act. On so-called “virtual visits” by means of electronic communication tools such
as e-mail, instant messages, video conferences and video calls, see Bregman 2007 De Rebus 34; Knoetze Nov
2013 De Rebus 24.
19 [2000] 3 All SA 475 (C), 2001 (2) SA 706 (C).
20 S 15(2) of the Maintenance Act 99 of 1998. On liability for school fees, see Fish Hoek Primary School v GW
[2010] 2 All SA 124 (SCA), 2010 (4) BCLR 331 (SCA), 2010 (2) SA 141 (SCA); MB v NB 2010 (3) SA 220
(GSJ). See further Carnelley 2011 (6) PELJ 34; Maithufi 2012 De Jure 630.
304 South African Family Law

The exact scope of the duty of support in respect of a child depends on the circumstances
of the particular case. Factors which are taken into account include the child’s needs, age and
state of health; the means, income and social status of the person who is liable for mainte-
nance; and the fact that the person in whose care the child is meets (at least part of) his or
her duty of support by undertaking the responsibilities involved in exercising care.21 A child
may be entitled to more than just the necessities of life.22 For example, depending on factors
such as the child’s intellectual capacity and the family’s standing and financial resources, the
child may be entitled to attend a private school, to receive private lessons, or to be enrolled in
tertiary education.23 The child’s academic performance can be taken into account to deter-
mine whether a parent must continue paying for the child’s tertiary education or private
lessons.24
The needs of the child must first be established; then the amount of the liable person’s
maintenance contribution must be calculated, taking into account the person’s means.25 If
more than one person is liable for a child’s support, the duty to provide maintenance is
apportioned between them in accordance with their respective means.26
Prior to the coming into operation of the Bill of Rights, the Appellate Division (now the
Supreme Court of Appeal) held in Mentz v Simpson 27 that, since a step-parent is not legally
obliged to maintain his or her stepchild, a stepchild’s needs may not be considered when the
maintenance requirements of a parent’s own child are at issue. However, if the decision in
Heystek v Heystek 28 that the right to parental care entitles the child to maintenance by a step-
parent is correct, the rule in Mentz v Simpson no longer holds good.
It has been held that, in the absence of special circumstances, a court which issues an order
in respect of a child’s maintenance ought only to stipulate that a certain amount of money
must be paid. This amount will be regarded as providing for all the elements of the duty of
support. The court ought not to specify how much of the amount is for school fees, medical
expenses, and so forth.29 However, in practice, parents often enter into settlement agreements
specifying particular amounts for particular expenses, or specifying that a particular amount
will be paid for the child’s maintenance and that the parent who has to pay maintenance will
also pay the child’s reasonable medical expenses, educational expenses, and so forth. Settle-
ment agreements containing such clauses are routinely incorporated into divorce orders.30
(b) The bearers of the duty to support a child
(i) The state
Section 28(1)(c) of the Constitution of the Republic of South Africa, 1996 entitles every child
to “basic nutrition, shelter, basic health care services and social services”. In cases such as
________________________

21 See eg Scott v Scott 1946 WLD 399; Bordihn v Bordihn 1956 (2) PH B32 (A); Zimelka v Zimelka 1990 (4) SA 303
(W); B v B [1999] 2 All SA 289 (SCA) (also reported as Bursey v Bursey 1999 (3) SA 33 (SCA)). However,
Bonthuys 2001 THRHR 204–205 and 2008 THRHR 200–203 indicates that the needs which are met by the
person who renders child-care are usually not considered and that the value of the labour involved in ren-
dering child-care is frequently ignored.
22 See eg Chamani v Chamani 1979 (4) SA 804 (W); Vedovato v Vedovato 1980 (1) SA 772 (T); Smit v Smit 1980
(3) SA 1010 (O); Mentz v Simpson 1990 (4) SA 455 (A); but see also Ncubu v National Employers General Insur-
ance Co Ltd 1988 (2) SA 190 (N).
23 See eg Mentz v Simpson 1990 (4) SA 455 (A); Douglas v Douglas [1996] 2 All SA 1 (A); Forssman v Forssman
[2007] 4 All SA 1148 (W), 2008 (2) SA 144 (W).
24 See also Van Schalkwyk in Boezaart (ed) Child Law in South Africa 59. Botha 2008 SALJ 720 argues that
gross ingratitude on the part of the child may be taken into account to determine whether the child still
needs maintenance.
25 See eg Mentz v Simpson 1990 (4) SA 455 (A); Douglas v Douglas [1996] 2 All SA 1 (A).
26 S 15(3)(a)(ii) of the Maintenance Act.
27 1990 (4) SA 455 (A).
28 [2002] 2 All SA 401 (T). On Heystek, see further below in this chapter.
29 Du Toit v Du Toit 1991 (3) SA 856 (O); but see Schmidt v Schmidt 1996 (2) SA 211 (W).
30 On settlement agreements, see ch 12 above, and on maintenance for a child upon his or her parents’
divorce, ch 14 above.
 Chapter 23: Parental responsibilities and rights 305

Government of the Republic of South Africa v Grootboom,31 Minister of Health v Treatment Action
Campaign (1) 32 and Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae) 33
the Constitutional Court held that the child’s parents and family are primarily responsible for
caring and providing for the child and that the duty which section 28(1)(c) refers to rests pri-
marily on the child’s parents and family. It passes to the state only if the child’s parents and
family fail or are unable to meet their obligations.34
The duty which section 28(1)(c) imposes, is at least partly related to providing the child
with support. The same applies to articles 26(1), 24 and 27 of the Convention on the Rights
of the Child, which entitle the child to social services and health care and oblige state parties
to provide the child with a standard of living which is adequate for his or her well-being and
development,35 and articles 5 and 14 of the African Charter on the Rights and Welfare of the
Child, which afford the child the right to survival and development, health and health care
services.36
As regards the state’s duty, it suffices to point out that two of the ways in which the state
attempts to meets its obligation to support children are by funding various social grants, such
as the child support grant, foster child grant, and care-dependency grant,37 and establishing
welfare programmes, such as free health care for children under six years of age38 and the
National School Nutrition Programme.39
(ii) The child’s parents
Parenthood automatically gives rise to the duty to support one’s child. In other words, a
parent’s duty of support arises ex lege upon the child’s birth. Both parents must support their
child, regardless of whether the child is born of married or unmarried parents.40 The duty is
apportioned between the parents in accordance with their respective means.41 A child born of
a first marriage or civil union may not be preferred over a child born of a subsequent mar-
riage or civil union.42
(iii) The child’s grandparents
If neither of the child’s parents can support the child, the duty of support passes to the child’s
grandparents.43 In the past, the law distinguished between children born of married and
________________________

31 2000 (11) BCLR 1169 (CC), 2001 (1) SA 46 (CC).

32 2002 (12) BCLR 1033 (CC) (also reported as Minister of Health v Treatment Action Campaign (2) 2002 (5) SA
721 (CC)).
33 2003 (2) BCLR 111 (CC), 2003 (2) SA 363 (CC), Heaton and Kruger Casebook on Family Law case [21].
34 See further ch 22 above.
35 South Africa ratified the Convention on 16 June 1995.
36 South Africa ratified the Charter on 7 Jan 2000.
37 On these grants, which are regulated by the Social Assistance Act 13 of 2004, see eg Hall and Monson in
Monson et al (eds) 2006 South African Child Gauge 39; Kruuse and Kruuse in Clark (ed) Family Law Service
pars K7–K20; Smith in Proudlock et al (eds) 2007/2008 South African Child Gauge 55; Jansen van Rensburg
and Horsten 2004 Journal for Juridical Science 52; Jansen van Rensburg 2006 SA Public Law 102; Bonthuys
2008 International Journal of Law, Policy and the Family 339–341, 2008 THRHR 204–206; Bekink 2009 THRHR
439 et seq; Hall in the 2007/2008 Annual Report of the Children’s Institute 23–25. For figures on the num-
ber of people who received these grants between 2008 and 2014, see Hall and Sambu in Mathews et al (eds)
2014 South African Child Gauge 96–98. See further Coughlan NO v Road Accident Fund [2015] ZACC 9 (20
April 2015), where the Constitutional Court held that the decision in Road Accident Fund v Timis [2010]
ZASCA 30 (26 March 2010) was incorrect as neither foster care grants nor child support grants should be
taken into account when an award of damages for loss of support is made; these grants should therefore
not be deducted from compensation payable for the loss of support of children. See further in this regard
Mukheibir 2011 SALJ 246; Steynberg and Millard 2011 (4) PELJ 260.
38 Ss 2(c)(iii) and (iv), and 4(3)(a) of the National Health Act 61 of 2003.
39 On this programme, see eg Hall and Monson in Monson et al (eds) 2006 South African Child Gauge 49–50;
Kibel et al (eds) 2009/2010 South African Child Gauge 46–52.
40 S 15(3)(a) of the Maintenance Act.
41 Ibid. On the meaning of the term “means”, see Carnelley and Easthorpe 2009 Obiter 371–376.
42 S 15(4) of the Maintenance Act.
43 Ex parte Jacobs 1936 OPD 31; Gliksman v Talekinsky 1955 (4) SA 468 (W), Heaton and Kruger Casebook on
Family Law case [85].
306 South African Family Law

unmarried parents in this regard. In terms of the 1930 decision of the Appellate Division
(now the Supreme Court of Appeal) in Motan v Joosub,44 paternal grandparents were not liable
for maintenance in respect of a child born of their unmarried son. In Petersen v Maintenance
Officer 45 the Cape Provincial Division of the High Court (now the Western Cape Division of
the High Court, Cape Town) declared this rule unconstitutional on the ground that it unjus-
tifiably violated the right of a child born of unmarried parents to be free from unfair discrim-
ination on the ground of birth and the child’s right to dignity, and also failed to afford
paramountcy to the child’s best interests.46 Even though this decision does not bind all courts,
there is little doubt that it will be followed and that, in future, courts will hold maternal and
paternal grandparents liable for support regardless of whether their grandchild is born of
married or unmarried parents.47
(iv) The child’s siblings
If neither the child’s parents nor his or her grandparents are in a position to support the
child, the duty of support passes to the child’s siblings.48 The duty to support a sibling applies
in respect of brothers, sisters, half-brothers and half-sisters. Spiro49 submits that a child born
of married parents is not responsible for the maintenance of a sibling who is born of unmar-
ried parents, but in view of the equality clause in the Constitution50 it is unlikely that this
submission will find favour.51
(v) A person who is not the child’s parent, grandparent or sibling but has care of the child
As indicated above, section 1(1) of the Children’s Act includes the duty of support under the
“care” element of parental responsibilities and rights.52 This inclusion has the result that any
person who has care of the child is responsible for the child’s maintenance. It seems clear
enough that the duty applies to a person who is not the child’s parent but has care of the
child in terms of a court order, a parental responsibilities and rights agreement which has
taken effect or an appointment by a parent who had sole care of the child while the parent
was still alive.53 A more complicated issue is whether a person who has de facto care of a child
without having been conferred with care in terms of a court order, parental responsibilities
and rights agreement or appointment by the child’s sole care-giving parent54 is obliged to
support the child. Section 32 of the Children’s Act governs the position of a person who has
no parental responsibilities and rights in respect of a child but voluntarily cares for the child
indefinitely, temporarily or partially.55 Since section 32(1) only obliges such a person to

________________________

44 1930 AD 61; see also F v L 1987 (4) SA 525 (W) (also reported as D v L 1990 (1) SA 894 (W)).
45 [2004] 1 All SA 117 (C), 2004 (2) BCLR 205 (C) (also reported as Petersen v Maintenance Officer, Simon’s
Town Maintenance Court 2004 (2) SA 56 (C)), Heaton and Kruger Casebook on Family Law case [87].
46 Ss 9(3), 10 and 28(2) of the Constitution.
47 See also Heaton Persons 68; Robinson in Atkin (ed) 2007 International Survey of Family Law 283; Skelton and
Carnelley (eds) Family Law 355; Bekink 2008 De Jure 155.
48 Oosthuizen v Stanley 1938 AD 322; Miller v Miller 1940 CPD 466; Ex parte Pienaar 1964 (1) SA 600 (T).
49 395 fn 95.
50 S 9.
51 See also Van Schalkwyk in Boezaart (ed) Child Law in South Africa 45.
52 Par (a)(iii) of the definition of “care”.
53 On these ways of obtaining care, see below in this chapter.
54 On the term “care-giving parent”, see ch 14 above.
55 S 32 inter alia applies to a care-giver who does not otherwise have parental responsibilities and rights. S 1(1)
defines “care-giver” as “any person other than a parent or guardian, who factually cares for a child and in-
cludes –
(a) a foster parent;
(b) a person who cares for a child with the implied or express consent of a parent or guardian of the
child;
(c) a person who cares for a child whilst the child is in temporary safe care;
(d) the person at the head of a child and youth care centre where a child has been placed;
(e) the person at the head of a shelter;
continued
 Chapter 23: Parental responsibilities and rights 307

safeguard the child’s health, well-being and development, and to protect the child from
maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physi-
cal, emotional or mental harm or hazard, it seems that the broad definition of “care” in
section 1(1) does not apply to such a person.56 Thus, for example, a person who cares for a
child with the consent of the child’s parent or guardian, a person who cares for a child whilst
the child is in temporary safe care, the person at the head of a child and youth care centre or
shelter, and a child and youth care worker who cares for a child who is without appropriate
family care in the community does not have a duty of support in respect of the child. However,
a child who is at the head of a child-headed household may have a duty of support in respect
of the children in the household if they are his or her siblings.57
(vi) The child’s step-parent
At common law, a step-parent is not obliged to maintain his or her stepchild because affinity
does not give rise to a duty of support in respect of the child of one’s spouse or civil union
partner.58 However, in Heystek v Heystek 59 the High Court, incorrectly, held that as an “inevit-
able concomitant of a marriage in community of property” the spouses have a “shared respon-
sibility . . . for the maintenance of the common household”, which results in a step-parent
having a duty of support towards his or her spouse’s children from a previous marriage.60 The
________________________

(f) a child and youth care worker who cares for a child who is without appropriate family care in the com-
munity; and
(g) the child at the head of a child-headed household”.
56 See also Heaton in Davel and Skelton (eds) Commentary on the Children’s Act 3-35.
57 See above in this chapter on the duty of support between siblings. The child-headed household is also en-
titled to state-funded grants, which the child who heads the household or the adult who supervises the
household may collect and administer: s 137(5)(a) of the Children’s Act.
58 See eg S v MacDonald 1963 (2) SA 431 (C); Mentz v Simpson 1990 (4) SA 455 (A).
59 [2002] 2 All SA 401 (T).
60 404c. The judgment is wrong in many respects. In a marriage or civil union in community of property, the
very nature of universal community of property dictates that all debts and all assets of both spouses or civil
union partners fall into the joint estate. Thus the debts of one of the parties in respect of the maintenance
of his or her children from a previous marriage or civil union fall into the joint estate and have to be met
out of the joint estate: see ch 6 above. This does not mean that different rules regarding a step-parent’s lia-
bility for a stepchild’s maintenance apply in marriages or civil unions in community of property and mar-
riages or civil unions out of community of property. The common-law rule remains the same, ie that a step-
parent is not obliged to support his or her stepchild. It is simply the source from which the child’s mainte-
nance must be paid that differs between the two types of marriages or civil unions. In a marriage or civil
union out of community of property, the debt is settled from the child’s parent’s estate, while in the case of a
marriage or civil union in community the debt is – by virtue of the nature of universal community of prop-
erty – settled from the joint estate. The court’s views on the “common household” are also difficult to un-
derstand. First of all, the presence or absence of a common household has no effect on the rules regarding
liability of the joint estate for a spouse’s debts in respect of children born from a previous marriage or civil
union, unless those debts relate to household necessaries. Secondly, the court adopted the view that spous-
es and their children share a common household even if one of the spouses has already left the matri-
monial home with his or her children from a previous marriage! (In the present case, the wife had left the
matrimonial home and had taken her children with her.) The court’s view is based on its interpretation of
consortium omnis vitae. The court concluded that the stepfather “had and has consortium with the children’s
mother”, because “[w]hilst the marriage subsists and until divorce is decreed the consortium prevails”:
404c–d. This is clearly incorrect as many of the elements of consortium, especially cohabitation, are termin-
ated when one of the spouses or civil union partners leaves the matrimonial home. Thirdly, the court’s ref-
erence to “maintenance of the common household” seems to be based on a conflation of the duty of sup-
port and liability for costs incurred for household necessaries. Spouses or civil union partners share liability
for debts incurred for household necessaries regardless of whether their marriage or civil union is in or out
of community of property: ss 17(5) and 23(5) of the Matrimonial Property Act 88 of 1984. One of the re-
quirements for such liability is that there must be a common household. It must also be remembered that
liability for household necessaries and the duty of support do not always coincide and that the existence of
a common household is not a requirement for the duty of support. On consortium omnis vitae, the duty of
support, liability for household necessaries, and the difference between the duty of support and liability for
household necessaries, see ch 5 above.
308 South African Family Law

court further held that the child’s constitutional right to parental care61 extends to step-
parents and encompasses the child’s maintenance needs. The latter part of the judgment was
not properly argued or properly substantiated, but it might be true that the right to parental
care imposes a duty of support on a step-parent.62
63
In MB v NB the court adopted a partially different approach to hold a stepfather liable for
a portion of his stepson’s school fees after the stepfather and the child’s mother got divorced.
The court held that because the stepfather had agreed to let his stepson use his surname and
the child’s mother and stepfather had jointly completed admission forms at the school as the
child’s “parents”, the stepfather had impliedly represented to the child, the child’s mother
and the world at large that he intended to be in the same position as the child’s father.
Because the child and his mother had relied on this representation, and because the stepfa-
ther and the child’s mother jointly and severally undertook liability for the child’s school fees,
the stepfather was liable to contribute to those fees. The court took this line of reasoning
even further when it held that because the child had become his stepfather’s “ostensible son”,
the child had the right to expect his stepfather to provide him with the family and parental
64
care provided for in section 28(1)(b) of the Constitution. The court held that imposing
liability of the stepfather for a contribution to the child’s school fees gave due recognition to
the child’s right to family and parental care. The legal foundation of the decision is question-
able. By basing its decision on the impression that the stepfather had created, the court
appears to have held that a step-parent can incur liability for a stepchild’s maintenance (or at
least for some expenses relating to a child’s education) on the ground of some sort of appli-
cation of estoppel. This is a novel approach which is not supported either by the principles
65
relating to estoppel or by any known principle of family law.
(c) Recovery of expenses relating to support
A person who has supplied maintenance to a child does not have a right of recourse against
the child for any amounts spent, unless, at the time when the maintenance was provided, the
child was de facto in a position to support himself or herself and the person who provided the
maintenance intended to claim reimbursement from the child. If the person acted out of
sheer liberality, he or she does not have a right to recourse, for then the maintenance was a
donation to the child.66 One parent can, however, recover from the other parent any amount
he or she spent in excess of his or her pro rata share of the child’s maintenance. This is the
position regardless of whether or not a court has apportioned the duty of support between
the parents.67
As against third parties, liability of parents for debts incurred in respect of their child’s
maintenance depends mainly on whether or not the parents are the parties to a valid marriage
or civil union and are still living together. If they are still each other’s spouses or civil union
partners and share a common household, they are jointly and severally liable for those ex-
penses which qualify as household necessaries.68 If a particular debt in respect of the child’s
support falls outside the scope of household necessaries and the marriage or civil union is out
________________________

61 S 28(1)(b) of the Constitution.

62 See also Van Schalkwyk and Van der Linde 2003 THRHR 301. On the child’s right to parental care, see ch
22 above.
63 2010 (3) SA 220 (GSJ), Heaton and Kruger Casebook on Family Law case [88]. On a possible legal basis for a
maintenance claim by a stepchild against a step-parent, see Van Schalkwyk 2012 TSAR 205.
64 Pars 20–21.
65 See further Heaton 2010 Annual Survey of South African Law 646–645.
66 See eg Minister of the Interior v Haviside’s Executors 1916 EDL 244; Stark v Fischer 1935 SWA 53; Vermaak v
Vermaak 1945 CPD 89.
67 Woodhead v Woodhead 1955 (3) SA 138 (SR); Herfst v Herfst 1964 (4) SA 127 (W); Bestuursliggaam van Gene
Louw Laerskool v Roodtman [2003] 1 All SA 87 (C) (also reported as Governing Body, Gene Louw Primary School
v Roodtman 2004 (1) SA 45 (C)); Fish Hoek Primary School v GW [2010] 2 All SA 124 (SCA), 2010 (4) BCLR
331 (SCA), 2010 (2) SA 141 (SCA).
68 Ss 17(5) and 23(5) of the Matrimonial Property Act.
 Chapter 23: Parental responsibilities and rights 309

of community of property, only the parent who incurred the debt can be sued for payment
unless the third party can prove that the non-contracting parent incurred liability on the
ground of negotiorum gestio or unjustified enrichment.69 The latter rule also applies if the
parents were never married to each other, never entered into a civil union with each other, or
are divorced.70 If the parents are the parties to a marriage or civil union in community of
property, the debt can be recovered from the joint estate, and the parent who incurred the
debt or both parents together can be sued for payment.71
The question whether a man who paid maintenance for a child he mistakenly believed was
his biological child can recover the money he had paid when it transpires that he was not the
72
child’s father (sometimes called “misattributed paternity”), was considered in MN v AJ. In
this case, the parties were divorced. Following the divorce, the husband was ordered to pay
maintenance to the wife in respect of a minor child who was born during the subsistence of
the parties’ marriage. The husband paid maintenance for more than 10 years, until a paterni-
ty test showed that he was not the child’s biological father. He successfully recovered the
amount he had paid towards the child’s maintenance by way of the condictio indebiti in the
Magistrate’s Court. The wife appealed to the High Court, and her appeal was upheld. The
court held that the husband’s pleadings did not show the elements of the condictio because
the pleadings did not allege that the wife was enriched at the husband’s expense and that the
husband’s payments were unjustified because they were made sine causa. The facts presented
to court did not compensate for the lack of the averments in the pleadings, as the husband
failed to present evidence to show that he had made an excusable error, that his estate had
been impoverished, and that the wife had been enriched by the payments. The fact that the
husband’s decision to question his paternity was largely precipitated by his resentment at the
wife’s continued requests for increased payments, coupled with the long delay before he
asked for a paternity test, led the court to the conclusion that the husband was indifferent as
to whether or not the maintenance was due. The court concluded that the husband had
intended to pay maintenance regardless of whether or not he owed it. The court further
found that the child was not enriched by the payments as there was no evidence that the
child’s mother had used the money for anything other than expenses relating to the child’s
maintenance or that she had contributed less than her pro rata share of the cost of maintain-
ing the child. Finally the court made the obiter statement that
courts may in the future be wary of recognising claims in circumstances such as the present,
which necessitate an enquiry into paternity and which may have the tendency to destroy an oth-
erwise loving and caring parental relationship with a child whose rights to family and parental
care are protected under s 28 of the Constitution.73
(d) The reciprocity of the duty of support
In terms of our common law, it is clear that a child born of married parents must support his
or her parents, grandparents and siblings, and that a child born of unmarried parents must
support his or her mother, maternal grandparents and maternal siblings.74 The position as far
as the paternal relations of a child born of unmarried parents are concerned is not quite as
clear, for some authors raise the possibility that the father and his relations might not have a
________________________

69 On liability for household necessaries and liability for a debt which is not a household necessary, see
further ch 5 above.
70 On a parent’s liability as against a third party, see further Bestuursliggaam van Gene Louw Laerskool v Roodt-
man [2003] 1 All SA 87 (C) (also reported as Governing Body, Gene Louw Primary School v Roodtman 2004 (1)
SA 45 (C)).
71 S 17(5) of the Matrimonial Property Act.
72 2013 (3) SA 26 (W), Heaton and Kruger Casebook on Family Law case [89]. This decision has sparked
considerable debate: see Scott 2012 Annual Survey of South African Law 1257–1260; Pillay and Zaal 2012 Stell
LR 583; Carnelley and Hoctor 2012 Obiter 163; Sonnekus 2013 THRHR 623. See further Sonnekus 2014
THRHR 1.
73 Par 79.
74 D 25.3.5.4; Voet 25.3.8.
310 South African Family Law

right to claim maintenance from the child.75 However, denying a father and his blood relations
the right to claim maintenance from his child purely because the child was born of unmar-
ried parents would constitute an unjustifiable violation of the equality clause,76 and would be
unconstitutional.77
The Children’s Act does not oblige a child to support a non-parent who has care of the
child in terms of a court order, a parental responsibilities and rights agreement or an ap-
pointment by a sole care-giving parent. It is unclear whether differentiating between the
child’s family members and a non-parent who has care of the child in terms of a court order,
parental responsibilities and rights agreement or an appointment by a sole care-giving parent
in so far as the imposition of a duty of support on the child is concerned is unconstitutional.
The requirements for the existence of a child’s duty to support his or her parent, grand-
parent or sibling are mutatis mutandis (that is, with the necessary changes) the same as the
corresponding duty which rests on the parent, grandparent or sibling, namely that the person
must be unable to support himself or herself while the child must be able to provide sup-
port.78 However, in the case of the child’s duty to support his or her parent, grandparent or
adult sibling, the law requires indigence on the part of the parent, grandparent or sibling
before the child will be compelled to provide support. In the past, some courts have held that
indigence refers to being in extreme need of what should, considering the person’s station in
80
life, be regarded as the necessities of life.79 However, in Jacobs v Road Accident Fund Grogan AJ
held that the correct test is whether the parent is dependent on his or her child’s contribution
for the necessities of life.
The child’s duty arises only if the parent, grandparent or sibling does not have a spouse, civil
union partner or child who can (adequately) support him or her.81 If a parent or grandparent
has more than one child or grandchild or a sibling has more than one sibling, the children,
grandchildren or siblings must contribute according to their respective means.82 The scope of
the duty of support depends on the circumstances of each particular case, including the
parties’ social status and means.83

23.2 Ways of acquiring parental responsibilities and rights

23.2.1 General
Each of the ways in which a person can acquire parental responsibilities and rights is discussed
under a separate subheading below.84 As appears from the discussion, some persons automat-
ically acquire full parental responsibilities and rights, while others have to use specific legal
mechanisms to obtain parental responsibilities and rights. Furthermore, a person need not
have all the components of parental responsibilities and rights.85 Thus, one parent may have
more parental responsibilities and rights than the other or the parents may have different
________________________

75 Hahlo and Kahn 355; Kruger and Robinson in Robinson (ed) Law of Children and Young Persons 43; Spiro
404; Van der Vyver and Joubert 223 (but see also the same work at 629).
76 S 9 of the Constitution.
77 See also Cockrell Bill of Rights Compendium par 3E24; Heaton Persons 75; Heaton Bill of Rights Compendium
par 3C47; Van Heerden in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 422.
78 See eg Stander v Royal Exchange Assurance Co 1962 (1) SA 545 (SWA).
79 See eg Oosthuizen v Stanley 1938 AD 322; Smith v Mutual & Federal Insurance Co Ltd 1998 (4) SA 626 (C);
Tyali v University of Transkei [2002] 2 All SA 47 (Tk); Fosi v Road Accident Fund 2008 (3) SA 560 (C).
80 2010 (3) SA 263 (ECP).
81 See eg Barnes v Union and South West Africa Insurance Co Ltd 1977 (3) SA 502 (E); Tyali v University of Transkei
[2002] 2 All SA 47 (Tk).
82 Oosthuizen v Stanley 1938 AD 322.
83 Groves v Baillie 1942 WLD 34; see also Smith v Mutual & Federal Insurance Co Ltd [1998] 3 All SA 378 (C),
1998 (4) SA 626 (C).
84 For a detailed discussion of the acquisition of parental responsibilities and rights, see Louw 1 et seq. See also
Schäfer Child Law in South Africa ch 9; Skelton in Boezaart (ed) Child Law in South Africa ch 3.
85 S 18(1) of the Children’s Act.
 Chapter 23: Parental responsibilities and rights 311

parental responsibilities and rights. For example, both parents may have guardianship, while
only one of them has care and the other contact.

23.2.2 Birth
The general rule is that a child’s biological mother automatically has parental responsibilities
and rights of the child to whom she gives birth, regardless of whether the child is born of
married or unmarried parents.86 If the mother is over the age of 18 years or is younger than
18 years but is married,87 she acquires full parental responsibilities and rights in respect of her
child. If she is unmarried and a minor and neither she nor the child’s biological father has
guardianship in respect of the child, her guardian is also her child’s guardian.88
If a child was conceived as a result of artificial fertilisation, the woman who gives birth to
the child is for all purposes regarded as the child’s mother, unless she is the child’s surrogate
mother in terms of a valid surrogate motherhood agreement.89 In the case of surrogacy, the
birth mother does not acquire parental responsibilities and rights even if her ovum was used
for her own artificial fertilisation.90 Instead, the child is deemed to be the child of the com-
missioning parent(s) for all purposes as from the moment of his or her birth.91 However, if
the surrogate motherhood agreement is invalid, the surrogate mother is for all purposes
deemed to be the child’s mother and the child has no relationship with the commissioning
parent(s).92 If a valid surrogate motherhood agreement is terminated before the child’s birth,
the surrogate mother and her spouse, civil union partner or partner in a permanent relation-
ship become the child’s parents from the moment of the child’s birth. If the surrogate moth-
er does not have a spouse, civil union partner or partner in a permanent relationship, she
and the commissioning father become the child’s parents from the moment of the child’s
birth.93 If the agreement is terminated after the child’s birth, the surrogate mother and her
spouse, civil union partner or partner in a permanent relationship become the child’s parents
from the date of the termination of the agreement. If the surrogate mother does not have a
spouse, civil union partner or partner in a permanent relationship, she and the commission-
ing father become the child’s parents from the date of the termination of the agreement.94
Regardless of when the agreement is terminated, the surrogate mother and her spouse, civil
union partner or partner in a permanent relationship, or the surrogate mother and the
commissioning father (if the surrogate mother does not have a spouse, civil union partner or

________________________

86 S 19(1) of the Children’s Act. If children were accidentally switched as newborn babies, each child’s bio-
logical parent is entitled to care of the child unless returning the child would not be in the child’s best in-
terests: Petersen v Kruger 1975 (4) SA 171 (C).
87 A person attains majority by reaching the age of 18 years or entering into a civil or customary marriage: see
s 17 of the Children’s Act and chs 3 and 17 above. As a minor may not enter into a civil union, he or she
cannot attain majority that way: see ch 16 above.
88 S 19(2) of the Children’s Act.
89 S 40(2) read with s 297(1)(a) of the Children’s Act.
90 Ss 19(3) and 297(1)(c) of the Children’s Act. For more detailed discussions of surrogacy, see Barratt (ed)
Persons and the Family 217–222; Heaton Persons 50–53; Louw in Davel and Skelton (eds) Commentary on the
Children’s Act ch 19; Schäfer Child Law in South Africa ch 10. See further Ex parte WH [2011] 4 All SA 630
(GNP), 2011 (6) SA 514 (GNP); In re Confirmation of Three Surrogate Motherhood Agreements 2011 (6) SA 22
(GSJ); Ex parte MS; In Re: Confirmation of Surrogate Motherhood Agreement [2014] 2 All SA 312 (GNP) (also re-
ported as Ex parte MS 2014 (3) SA 415 (GNP)); Mills 2010 Stell LR 429; Carnelley and Soni May 2011 De Re-
bus 30; Slabbert June 2012 SAJBL 27; Carnelley 2012 De Jure 179; Nicholson and Bauling 2013 De Jure 510;
Nicholson 2013 SAJHR 496; Louw 2013 THRHR 564; Mahlobogwane 2013 (2) Speculum Juris 45; Bonthuys
and Broeders 2013 SALJ 485; Pillay and Zaal 2013 SALJ 475; Metz May 2014 SAJBL 34; Louw 2014 De Jure
110; Sloth-Nielsen and Van Heerden 2014 International Journal of Law, Policy and the Family 114–115. On the
pitfalls of international surrogacy, see Heaton 2015 THRHR 24.
91 S 297(1)(a) and (b) of the Children’s Act.
92 S 297(2) of the Children’s Act.
93 S 299(b) of the Children’s Act.
94 S 299(a) of the Children’s Act.
312 South African Family Law

partner in a permanent relationship) are obliged to accept parenthood.95 In other words, the
termination cannot result in the child being left parentless.

23.2.3 A marriage or civil union with the child’s mother at the time of the child’s
conception or birth or at any intervening time
A father automatically acquires full parental responsibilities and rights if he is married to the
child’s mother at the time of the child’s conception or birth or at any intervening time.96 Sec-
tion 1(1) of the Children’s Act defines marriage in broad terms that include civil, customary
and religious marriages. Furthermore, in terms of section 13(1) and (2) of the Civil Union
Act 17 of 2006, the consequences of a civil union correspond to those of a civil marriage and
the term “marriage” encompasses a civil union (except in so far as the Marriage Act 25 of
1961 and the Recognition of Customary Marriages Act 120 of 1998 are concerned). Thus, the
man or woman97 who is the civil union partner of a child’s biological mother when the child is
conceived or born or at any intervening time has full parental responsibilities and rights in
respect of the child.98

23.2.4 A marriage or civil union between the child’s parents after the child’s
birth
If the parents of a child born of unmarried parents marry each other or enter into a civil
union with each other after the child’s birth, the father acquires full parental responsibilities
and rights.99 The acquisition of full parental responsibilities and rights takes place retroact-
ively, because the child’s parents are deemed to have been married or to have been civil
union partners at the time of the child’s birth.100 This is the position even if the parents could
not have legally married each other or entered into a civil union with each other at the time
of the child’s conception or birth.101 It is also the position if the subsequent union between
the parents is a putative marriage.102
The marriage or civil union must be between the child’s parents. If the mother marries a
man who is not the child’s father or enters into a civil union with such a man, the man does
not acquire parental responsibilities and rights in respect of the child as a result of the mar-
riage or civil union.

23.2.5 A permanent life partnership between the parents at the time of the
child’s birth
In terms of section 21(1)(a) of the Children’s Act, an unmarried biological father automati-
cally acquires full parental responsibilities and rights in respect of his child if he lives with the
child’s mother in a permanent life partnership when the child is born.103 If the parents cannot
agree on whether they lived in a permanent life partnership when the child was born, the
dispute must be referred for mediation by a Family Advocate, social worker, social service
professional or other suitably qualified person.104 The phrase “permanent life-partnership” is
________________________

95 S 299(c) of the Children’s Act.

96 S 20 of the Children’s Act.
97 Civil unions are open to heterosexual and same-sex couples: see ch 16 above.
98 If the birth mother is a party to a same-sex life partnership, her life partner does not acquire full parental
responsibilities and rights: s 40(1)(a) and (2) of the Children’s Act; see further ch 20 above.
99 S 38(1) of the Children’s Act read with s 13 of the Civil Union Act 17 of 2006.
100 S 38(1) of the Children’s Act.
101 S 38(2) of the Children’s Act.
102 Makholiso v Makholiso 1997 (4) SA 509 (Tk).
103 See further FS v JJ 2011 (3) SA 126 (SCA). On the constitutionality of s 21 of the Children’s Act, see
Louw 2010 (3) PELJ 156.
104 S 21(3)(a) of the Children’s Act. As s 21(3)(a) stipulates that the dispute “must” be referred for media-
tion by a Family Advocate, social worker, social service professional or other suitably qualified person, the
continued
 Chapter 23: Parental responsibilities and rights 313

not defined or explained in the Act. Presumably, it refers to a life partnership that falls
outside the scope of the Civil Union Act.105

23.2.6 Acknowledging paternity, contributing to the child’s upbringing, and

contributing to the child’s maintenance
In terms of section 21(1)(b) of the Children’s Act, an unmarried biological father acquires
full parental responsibilities and rights in respect of his child if, regardless of whether he has
lived or is living with the child’s mother, he consents or successfully applies to be identified as
the child’s father or pays damages in terms of customary law; contributes or has attempted in
good faith to contribute to the child’s upbringing for a reasonable period; and contributes or
has attempted in good faith to contribute to the child’s maintenance for a reasonable period.106
The answer to the question whether the three requirements in the section are cumulative or
107
distinct and independent is unclear. In KLVC v SDI the Supreme Court of Appeal did not
have to decide the matter as the father satisfied all three requirements.
In KLVC v SDI the Supreme Court of Appeal provided guidance on what constitutes “a rea-
sonable period of time”. The court held that the answer to this question depends on the facts
of the case, particularly the age of the child and the circumstances and actions of the parties.
“Contribut[ing]” or “attempt[ing] in good faith to contribute” for “a reasonable period” are
elastic concepts and permit a range of considerations culminating in a value judgment as to
whether what was done could be said to be a contribution or a good faith attempt at contrib-
108
uting to the child’s upbringing over a period which, in the circumstances, is reasonable.
The Supreme Court of Appeal further held that the maintenance contribution section
21(1)(b) refers to does not mean that the father must have provided maintenance as defined
in the Maintenance Act. Any contribution to the maintenance of the child is sufficient. In the
present case the father had bought several items for the child, including a pram, a car seat,
clothing and nappies. He had also made a changing table for the child, and had offered to
place the child on his medical aid, which offer the child’s mother declined. The mother also
refused to give the father her banking details to enable him to deposit money for mainte-
nance into the account. The court held that the father had fulfilled the requirement of
contribution to the child’s maintenance.
If an unmarried father meets the requirements in section 21(1)(b), he acquires exactly the
same parental responsibilities and rights as the child’s mother, regardless of whether the
child was born before or after the coming into operation of the Children’s Act and regardless
of whether he has ever lived with the child’s mother.109 If the parents cannot agree on wheth-
er the father meets the above-mentioned requirements, the dispute must be referred for
________________________

parents may not approach the court as a first resort for the resolution of their dispute. However, if it is in
the interests of the child, either parent, or both of them, may still ask the High Court to make an order
in its capacity as the child’s upper guardian without them first having to engage in mediation. The High
Court’s order could entail a determination on whether or not the parents are or were in a permanent
life partnership when the child was born: see also Heaton in Davel and Skelton (eds) Commentary on the
Children’s Act 3-15.
105 See also Heaton Persons 70 fn 181; Heaton in Davel and Skelton (eds) Commentary on the Children’s Act
3-13.
106 The payment of damages in terms of customary law probably refers to delivery of cattle or payment of
another form of damages for the mother’s seduction or pregnancy. It is unclear whether it also covers de-
livery of isondlo (ie, delivery of an animal by a father to the person who raised his child): see further Hea-
ton in Davel and Skelton (eds) Commentary on the Children’s Act 3-14. In respect of maintenance, it should
be noted that s 21(1)(b) does not require that the father must have met his full maintenance obligation
for a reasonable period. He must merely have made a contribution towards the child’s maintenance:
Heaton ibid. On the constitutionality of s 21 of the Children’s Act, see Louw 2010 (3) PELJ 156.
107 [2015] 1 All SA 532 (SCA), Heaton and Kruger Casebook on Family Law case [78].
108 Par 22, quoting the judgment of the court a quo.
109 S 21(1)(b) and (4) of the Children’s Act.
314 South African Family Law

mediation by a Family Advocate, social worker, social service professional or other suitably
qualified person.110

23.2.7 A parental responsibilities and rights agreement

An unmarried biological father who does not have parental responsibilities and rights can
acquire them by entering into a parental responsibilities and rights agreement with the
child’s mother or with any other person who has parental responsibilities and rights in
respect of the child. Any other person who has an interest in the child’s care, well-being and
development (such as a grandparent) can also acquire parental responsibilities and rights by
entering into such an agreement with the child’s mother or another person who has parental
responsibilities and rights in respect of the child.111
A parental responsibilities and rights agreement confers only those responsibilities and
rights that are set out in the agreement and cannot confer more responsibilities and rights
than the conferrer has.112 In other words, the agreement may deal with fewer parental respon-
sibilities and rights than the conferrer has, but it may not deal with more than he or she has.
Thus, for example, a 16-year-old unmarried mother may confer contact on the child’s father,
but, generally, she cannot confer guardianship on him, because her guardian, not she, is the
child’s guardian.113
A parental responsibilities and rights agreement must be in the format and must contain
the particulars prescribed by the regulations under the Act.114 Even if the agreement meets
these requirements, it remains unenforceable unless it is registered with a Family Advocate or
is made an order of court on the parties’ application.115 Unless the agreement deals with
guardianship, the division of the High Court, the Divorce Court in a divorce matter (now the
Regional Division of the Magistrate’s Court, also called the Regional Court), or the Children’s
Court within whose area of jurisdiction the child ordinarily resides may make the agreement
an order of court.116 If the agreement relates to guardianship, only the High Court has juris-
diction.117 Before registering the agreement or making it an order of court, the Family Advo-
cate or court must be satisfied that the agreement is in the child’s best interests.118 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.119
Once the agreement has been registered or made an order of court, it can only be termin-
ated or amended by the Family Advocate or the court.120 If the Family Advocate registered the
agreement, he or she may amend or terminate it on application by:121
________________________

110 S 21(3)(a) of the Children’s Act.

111 S 22(1) of the Children’s Act.
112 S 22(1) and (2) of the Children’s Act.
113 In terms of s 19(2) of the Children’s Act, the guardian of an unmarried minor mother is also the guardian
of the mother’s child unless the child’s father has guardianship or a court has conferred guardianship on
the mother.
114 S 22(3) of the Children’s Act, read with the definition of “prescribed” in s 1(1).
115 S 22(4) of the Children’s Act.
116 S 22(4)(b) read with s 29(1) of the Children’s Act. For a detailed discussion of the Children’s Court and its
powers in terms of the Children’s Act see Gallinetti in Davel and Skelton (eds) Commentary on the Children’s
Act ch 4.
117 S 22(7) of the Children’s Act. Apart from the prescription that the High Court must be approached if the
agreement deals with guardianship, s 22 does not indicate that different grounds apply to registration of
the agreement by the Family Advocate and to making the agreement an order of court. With the excep-
tion of cases dealing with guardianship, the parties therefore have a choice whether they want to approach
the Family Advocate or the court: see also Heaton Persons 72; Heaton in Davel and Skelton (eds) Commen-
tary on the Children’s Act 3-18; Skelton in Boezaart (ed) Child Law in South Africa 80 fn 83.
118 Ss 22(5) and 29(3) of the Children’s Act.
119 See ch 14 above on the factors that are listed in s 7(1).
120 S 22(6) of the Children’s Act.
121 S 22(6)(a) of the Children’s Act. On the uncertainty regarding which court has jurisdiction to grant con-
sent or order an amendment or termination, see Heaton in Davel and Skelton (eds) Commentary on the
Children’s Act 3-19.
 Chapter 23: Parental responsibilities and rights 315

(1) A person who has parental responsibilities and rights in respect of the child.
(2) The child, if he or she has the court’s consent.
(3) Any other person who acts in the child’s interest and has the court’s consent.
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.122 If the agreement
relates to guardianship, only the High Court may amend or terminate it.123

23.2.8 Assignment by an order of court

A person who does not have parental responsibilities and rights can acquire them by means of
a court order. Firstly, as upper guardian of all minors, the High Court may confer any or all
parental responsibilities and rights on the person. The court’s powers as upper guardian are
discussed below in this chapter.
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, Regional Court or
Children’s Court for an order awarding contact or care to him or her.124 Examples of persons
who may have an interest in the child’s care, well-being or development are the child’s
125
unmarried father, the child’s grandparent, and a parent’s life partner. The court must take
the following factors into account when considering the application:
(1) The best interests of the child.
(2) The relationship between the applicant and the child, and between any other relevant
person and the child.
(3) The degree of commitment the applicant has shown towards the child.
(4) The extent to which the applicant has contributed to expenses in connection with the
child’s birth and maintenance.
(5) Any other fact that should, in the opinion of the court, be taken into account.
If the court assigns contact or care to a person, it may impose whatever conditions it deems
necessary.126 Furthermore, the assignment order does not affect the parental responsibilities
and rights another person has in respect of the child.127 Thus, for example, an unmarried
mother does not lose her parental responsibilities and rights or any element of those respon-
sibilities and rights simply because the court assigns contact or care to the child’s father. How-
ever, section 28(2) of the Children’s Act authorises combining an application for
termination, extension, suspension or circumscription of parental responsibilities and rights
and an application for the assignment of contact and care.128 Thus, for example, the unmar-
ried father could ask the court to suspend particular aspects of the mother’s care and to
assign them to him.

________________________

122 S 22(6)(b) of the Children’s Act.

123 S 22(7) of the Children’s Act.
124 S 23(1). Both contact and care, or either contact or care can be awarded to the applicant: CM v NG 2012
(4) SA 452 (WCC). The court within whose area of jurisdiction the child ordinarily resides has jurisdiction
to make the order: s 29(1). If an applicant applies for assignment of contact or care after another appli-
cant has applied to adopt the child, the court which hears the application for assignment must request a
Family Advocate, social worker or psychologist to prepare a report and recommendations on what is in the
child’s best interests. The court may also conditionally suspend the application for assignment of contact
or care: s 23(3).
125 For an example where grandparents’ application for contact with their grandchild was successful, see LH v
LA 2012 (6) SA 41 (ECG). See further Louw 2013 Stell LR 618; Sloth-Nielsen and Van Heerden 2014 Inter-
national Journal of Law, Policy and the Family 110.
126 S 23(1).
127 S 23(4).
128 On termination, extension, suspension and circumscription of parental responsibilities and rights, see
below in this chapter.
316 South African Family Law

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 of the Children’s Act for an order assigning
guardianship to him or her.129 When considering the application, the court must consider the
child’s best interests, the relationship between the applicant and the child, the relationship
between any other relevant person and the child, and any other fact that should, in the opin-
ion of the court, be taken into account.130 If the child already has a guardian, the person who
applies for assignment of guardianship must give reasons why the existing guardian is not suit-
able to have guardianship.131

23.2.9 Appointment in a will

In terms of section 27 of the Children’s Act, a person who has sole guardianship or sole care
may appoint a fit and proper person to act as his or her successor after his or her death. The
appointment must be made in the will of the person who has sole guardianship or sole care.
Before the sole guardian or sole care-giving person makes the appointment, he or she must
give due consideration to any views and wishes expressed by the child, bearing in mind the
child’s age, maturity and stage of development.132 The appointed person acquires guardian-
ship or care only after the death of the sole guardian or sole care-giving person and upon
accepting the appointment.133 If more than one person is appointed, any or all of them may
accept the appointment, unless the will stipulates otherwise.134
Section 5(3) of the Matrimonial Affairs Act 37 of 1953 also permits a parent to nominate a
person to act as his or her successor after his or her death. However, the appointment may be
made only if the parent who makes the appointment is the child’s sole surviving parent or has
sole guardianship or sole care of the child in terms of the Divorce Act 70 of 1979135 or section
5(1) of the Matrimonial Affairs Act.136
Finally, the Administration of Estates Act 66 of 1965 provides that if a child was born of
married parents, letters of tutorship or curatorship will be issued to the person the child’s
parent appointed as the child’s testamentary guardian or custodian only if the parent who
made the appointment was the child’s sole surviving parent or if sole guardianship and/or
sole care had been awarded to him or her in terms of the Divorce Act or section 5(1) of the
Matrimonial Affairs Act.137 In the case of a child who was born of unmarried parents, letters of
curatorship or tutorship will be issued to the person the child’s mother appointed as the
child’s testamentary guardian or custodian.138

________________________

129 S 24(1) read with Ex parte Sibisi 2011 (1) SA 192 (KZP). See also Heaton Persons 74 fn 215; Heaton in Davel
and Skelton (eds) Commentary on the Children’s Act 3-21–3-23.
130 S 24(2).
131 S 24(3). On two possible interpretations of the implications of this requirement, see Heaton in Davel and
Skelton (eds) Commentary on the Children’s Act 3-22–3-23. See also Skelton in Boezaart (ed) Child Law in
South Africa 84 who submits that s 24 contains a drafting error. In CM v NG [2012] 3 All SA 104 (WCC),
2012 (4) SA 452 (WCC) the court accepted Skelton’s interpretation, although the court did not consider
the possibility that s 24(3) contains a drafting error. The court held that the requirement in s 24(3) that
the applicant “must submit reasons as to why the child’s existing guardian is not suitable to have guardian-
ship in respect of the child” applies only if the applicant is applying for sole guardianship. See further
Mashile Aug 2012 De Rebus 32.
132 S 31(1)(a) and (b)(iii) of the Children’s Act; see also s 10.
133 S 27(3).
134 S 27(4). Presumably the “appointment” refers to the will in which the appointment is made.
135 S 6(3) is discussed in ch 14 above.
136 The Divorce Act 70 of 1979 applies only if the child was born of married parents, and s 5(1) of the
Matrimonial Affairs Act 37 of 1953 applies only if the child was born of married parents who are divorced
or living apart: see below in this chapter and in ch 14 above.
137 S 72(1)(a)(i) and (iii) of the Administration of Estates Act.
138 S 72(1)(a)(ii) of the Administration of Estates Act.
 Chapter 23: Parental responsibilities and rights 317

23.2.10 Adoption
(a) General
Any person, whether male or female, married or unmarried, acquires full parental responsi-
bilities and rights in respect of a child if he or she adopts the child. Adoption is a formal pro-
cess by means of which existing parental responsibilities and rights are terminated and vested
in another person, namely the adoptive parent.139 The Children’s Act governs adoption within
South Africa as well as inter-country adoption. Local adoption is discussed first, followed by
inter-country adoption.140
(b) An adoptable child
Only a minor can be adopted141 and the minor must be adoptable.142 A child is adoptable in
any of the following circumstances:143
(1) He or she is an orphan and has no guardian or care-giver who is willing to adopt him or
her.
(2) The whereabouts of the child’s parent or guardian cannot be established.
(3) The child has been abandoned.
(4) The child’s parent or guardian has abused or deliberately neglected the child, or has
allowed the child to be abused or deliberately neglected.
(5) The child is in need of a permanent alternative placement.
144
In Centre for Child Law v Minister of Social Development the court held that the above provisions
do not preclude a child from being adoptable if he or she has a guardian and the person who
wants to adopt him or her is his or her step-parent (that is, the spouse, civil union partner or
permanent life partner of his or her guardian).
An adoption social worker determines whether a child is adoptable.145 The Director-
General of Social Development keeps and maintains a register on adoptable children and
suitable prospective adoptive parents.146 This register is called the Register on Adoptable
Children and Prospective Adoptive Parents, or RACAP for short.147
(c) The adoptive parent(s)
Spouses, civil union partners, partners in a permanent domestic life-partnership148 and other
persons sharing a common household and forming a permanent family unit (such as a
husband and all his customary wives) may jointly adopt a child.149 A widower, widow, divorced
or unmarried person may adopt a child on his or her own, as may a person who is the child’s

________________________

139 Naudé v Fraser [1998] 3 All SA 239 (SCA), 1998 (8) BCLR 945 (SCA), 1998 (4) SA 539 (SCA).
140 On local adoption, see further Barratt (ed) Persons and the Family 207–215; Louw in Boezaart (ed) Child
Law in South Africa ch 6; Mosikatsana and Loffell in Davel and Skelton (eds) Commentary on the Children’s Act
ch 15; Schäfer Child Law in South Africa ch 11; Skelton and Carnelley (eds) Family Law ch 17. On the histo-
ry of adoption, see Van der Walt 2014 Obiter 421.
141 S 230(1) of the Children’s Act, read with the definition of “child” in s 1(1).
142 S 230(1)(b).
143 S 230(3).
144 2014 (1) SA 468 (GNP), Heaton and Kruger Casebook on Family Law case [79]. The case arose because
Children’s Court officials had turned away several step-parents who wanted to adopt the children of their
spouses, civil union partners or life partners. These officials were of the view that children who are living
with a guardian in a safe environment do not fall within the scope of s 230(3) and are therefore not
adoptable.
145 S 230(2). Only certain persons are allowed to provide adoption services and to become adoption social
workers: see ss 250 and 251 and the definition of “adoption social worker” in s 1(1).
146 S 232(1).
147 See the definition “RACAP” in s 1.
148 On life partnerships, see ch 20 above.
149 S 231(1)(a) of the Children’s Act, read with s 13(2) of the Civil Union Act.
318 South African Family Law

foster parent or is married to the child’s parent or is the parent’s civil union partner or per-
manent domestic life-partner.150 If the child was born of unmarried parents, the child’s bio-
logical father may also adopt the child on his own.151
The prospective adoptive parent(s) must apply for an adoption order in the prescribed
manner at the Children’s Court.152 The application must be accompanied by both a report by
an adoption social worker indicating whether the child is adoptable and whether the adop-
tion is in the child’s best interests, and a letter from the provincial head of the Department of
Social Development recommending the child’s adoption.153
The Act further requires that the prospective adoptive parent(s) must be older than 18
years of age, fit and proper to be entrusted with full parental responsibilities and rights,154 and
willing and able to undertake, exercise and maintain those responsibilities and rights. An
applicant may not be disqualified because of his or her financial status.155 Thus even poor
people can adopt.156 The adoption social worker must properly assess the applicant(s) to
determine whether he or she is (or they are) indeed fit and proper to be entrusted with full
parental responsibilities and rights and willing and able to undertake, exercise and maintain
those responsibilities and rights.157 In the assessment, the adoption social worker may, but
need not, take the cultural and community diversity of the child and the applicant(s) into
consideration.158 The assessment must accompany the adoption application.159
(d) Consent
(i) The consent which is required
As a rule, the consent of all the guardians of a child is required for the child’s adoption.160
Thus, a child born of married parents and a child born of unmarried parents who share
________________________

150 S 231(1)(b), (c) and (e) of the Children’s Act. See also Centre for Child Law v Minister of Social Development
2014 (1) SA 468 (GNP).
151 S 231(1)(d). The child’s foster parent or biological father who does not have guardianship, and any other
family member of the child who gave notice to the clerk of the court before the child became available for
adoption that he or she is interested in adopting the child is entitled to be notified when the child be-
comes available for adoption and to be given an opportunity to apply to adopt the child: s 231(7)(a) and
(8).
152 S 239(1)(a). Every Magistrate’s Court is a Children’s Court for the area of its jurisdiction: s 42(1). The
Children’s Court is the only court that may grant an adoption order: Minister of Welfare and Population De-
velopment v Fitzpatrick 2000 (7) BCLR 713 (CC), 2000 (3) SA 422 (CC); Ex parte Leask [2007] 4 All SA 1018
(D).
153 S 239(1)(b) and (d). The report must also set out the medical information regarding the child which is
required by the regulations under the Act. In In re XN 2013 (6) SA 153 (GSJ) the High Court was tasked
with a special review of an adoption order. In this case, the Children’s Court had, in the best interests of
the child, condoned the failure to obtain a letter from the provincial head of the Department of Social
Development recommending the child’s adoption as required by s 239(1)(d). The High Court held that
the requirement is peremptory and that, as a general rule, the Children’s Court may not condone non-
compliance with the requirement, as this would result in a negation of the objectives of the Children’s Act.
However, condonation may be granted in exceptional circumstances. The High Court found that the ex-
ceptional circumstances of the present case required condonation in the best interests of the child.
154 A person who is unsuitable to work with children is not a fit and proper person: s 231(6). On persons who
are unsuitable to work with children, see ss 118–128 of the Act.
155 S 231(4).
156 An adoptive parent may apply for social assistance: s 231(5). There is no specific category of social assist-
ance for adoption, but the parent could apply for a child support grant or a care-dependency grant in
terms of the Social Assistance Act 13 of 2004.
157 S 231(2).
158 S 231(3). Interracial adoption is permitted. For a detailed analysis of interracial and intercultural adop-
tion, see Ferreira Interracial and Intercultural Adoption 1 et seq. On interracial adoption, see also Zaal 1992
Journal of SA Studies 372; Joubert 1993 SALJ 726; Zaal 1994 SAJHR 372; Mosikatsana 1995 SALJ 607, 1997
SAJHR 602. On the distinction between race and culture, see Ferreira 2006 THRHR 665.
159 S 239(1)(c).
160 Ss 18(3)(c), 233(1)(a) and (b) of the Children’s Act.
 Chapter 23: Parental responsibilities and rights 319

guardianship can only be adopted if both parents consent to the adoption.161 If other persons
have guardianship, their consent is also required.162 If one of the child’s parents is a minor
(that is, below 18 years of age),163 he or she must be assisted by his or her guardian when he or
she consents to the adoption.164
However, the consent of a parent or guardian is not required at all in the following
instances:165
(1) The person is incompetent to give consent by reason of mental illness.
(2) The person has abandoned the child, his or her whereabouts cannot be established, or
his or her identity is unknown.
(3) The person has abused or deliberately neglected the child, or has allowed the child to be
abused or deliberately neglected.
(4) The person has consistently failed to fulfil his or her parental responsibilities towards the
child during the last 12 months.
(5) A court has divested the person of the right to consent to the child’s adoption.
(6) The person has failed to respond to a notice of the proposed adoption within 30 days of
service of the notice.
Furthermore, the consent of the unmarried biological father of the child is not required in
any of the following circumstances:166
(1) The father failed to acknowledge paternity in the manner prescribed by the Act.167
(2) The child was conceived as a result of incest.
(3) Following an allegation by the child’s mother, the Children’s Court has found on a bal-
ance of probabilities that the child was conceived as a result of rape.
The child who is to be adopted must also give consent if he or she is older than 10 years or is
below 10 years, but is of an age, maturity and stage of development to understand the impli-
cations of consenting to the adoption.168 However, if the child is an orphan and has no guard-
ian or care-giver who is willing and able to adopt the child and the court is provided with
certified copies of the death certificate of the child’s parent or guardian or such other docu-
mentation as the court may require, the child can be adopted without his or her consent.169

________________________

161 If a parent wants his or her child to be adopted by a specific person, the parent’s consent must state the
person’s name: s 233(3). On the remedies the unmarried father has if his right to consent or withhold
consent to his child’s adoption are ignored, see Louw 2004 THRHR 110–111.
162 When a child becomes available for adoption, the Clerk of the Children’s Court must take the prescribed
steps to establish the name and address of each person whose consent for the adoption is required:
s 237(1)(a). If a social worker who is involved in the proposed adoption obtains information regarding the
identity and whereabouts of a person whose consent is required, he or she must immediately submit a re-
port containing that information to the clerk: s 237(4).
163 S 17.
164 S 233(1)(a).
165 Ss 233(1) and 236(1). On notices of adoption, and the persons who are entitled to receive those notices, see
s 238. A person who has consented to the child’s adoption and wants the court to dispense with another
person’s consent on a ground set out in s 236 must submit a statement to that effect to the Clerk of the
Children’s Court: s 237(2). When a child becomes available for adoption, the clerk must take reasonable
steps to establish the name of any person whose consent would have been necessary but for s 236 and the
grounds on which the person’s consent is not required: s 237(1)(b).
166 S 233(1)(a) read with s 236(3).
167 The father may acknowledge paternity by giving a written acknowledgement to the child’s mother or the
Clerk of the Children’s Court before the child reaches the age of six months, voluntarily paying mainten-
ance for the child, paying damages in terms of customary law, or causing his particulars to be entered in
the child’s birth registration in terms of the Births and Deaths Registration Act 51 of 1992: s 236(4) of the
Children’s Act.
168 S 233(1)(c). On children’s participation in their adoption process, see Ferreira 2014 THRHR 375.
169 S 236(2).
320 South African Family Law

Before a parent, guardian or child gives consent, he or she must be counselled by the
adoption social worker who is facilitating the adoption.170
A person who has consented to the adoption may withdraw such consent within 60 days. No
adoption order may be made until this period has expired.171
(ii) Dispensing with consent
If a person unreasonably withholds consent to the adoption, his or her consent can be dis-
pensed with and the adoption order granted if the court finds that the withholding of con-
sent is unreasonable and the adoption is in the best interests of the child.172 In determining
whether consent is being withheld unreasonably, the court must take all relevant factors into
account, including the nature of the relationship during the last two years between the child
and the person who is withholding consent and any findings a court has made in this regard,
and the prospects of a sound relationship developing between the child and the person in the
immediate future.173
(e) A freeing order
A parent or guardian whose consent to adoption is required and who supports the making of
a freeing order can be freed from parental responsibilities and rights pending the adoption.174
Unless the court rules differently, the freeing order also relieves the person from his or her
duty of support in respect of the child.175 The freeing order must authorise a designated child
protection organisation or a designated individual to exercise parental responsibilities and
rights pending the adoption.176 The freeing order lapses in the following circumstances:177
(1) If the child has not been adopted within a year and there is no reasonable prospect that
he or she will be adopted.
(2) If the court terminates the freeing order on the ground that it is no longer in the child’s
best interests.
(3) If the child or another person who consented to the adoption withdraws such consent.
(f) Consideration of the adoption application
The court that considers the adoption application must take all relevant factors into account,
including the religious and cultural background of the child, the child’s parent(s) and the
prospective adoptive parent(s), all reasonable preferences of the child’s parent(s) as stated in
his or her (or their) consent, and the report by the adoption social worker.178
The adoption order may be made only if the following requirements are met:179
(1) The adoption must be in the best interests of the child.180
(2) The prospective adoptive parent must have been properly assessed by an adoption social
worker and found to be fit and proper to have full parental responsibilities and rights
and willing and able to undertake, exercise and maintain those responsibilities and
rights.
(3) The required consent must have been given and not withdrawn, or consent must have
been dispensed with.
________________________

170 S 233(4).
171 S 233(8).
172 S 241(1).
173 S 241(2).
174 S 235(1) and (2).
175 S 235(5).
176 S 235(3).
177 S 235(4).
178 S 240(1).
179 S 240(2).
180 See also s 230(1)(a).
 Chapter 23: Parental responsibilities and rights 321

(4) If somebody other than the child’s unmarried biological father who does not have
guardianship or the child’s foster parent has made the adoption application, the father
or foster parent must have been given an opportunity to apply to adopt the child.181
(g) Advertisements and payment for adoption
No child may be advertised for adoption,182 nor may any person induce any other person to
give up a child for adoption, or give, receive, agree to give or agree to receive any consider-
ation, in cash or in kind, for the adoption of a child.183 However, the child’s biological mother
may be compensated for reasonable medical expenses she incurred in connection with her
pregnancy, the child’s birth and follow-up treatment, as well as for her reasonable expenses
for counselling, and any other expenses the regulations under the Act permit. A lawyer,
psychologist or other professional person may receive fees and expenses for services provided
in connection with the adoption.184
(h) The effect of an adoption order 185
The general rule is that an adoption order terminates any previous order made in respect of
the placement of the child.186 It also terminates all parental responsibilities and rights any per-
son had in respect of the child immediately before the adoption as well as all rights and re-
sponsibilities the child had as against that person and that person’s family members.187 The
family members of the person also lose all claims to contact with the child.188
The general rule applies even in the case of step-parent adoptions. That is, it applies even if
the person who adopts the child is married to the child’s parent or is his or her partner in a
domestic life partnership.189 The court order may, however, provide for exceptions to the
191
general rule.190 In Centre for Child Law v Minister of Social Development the court emphasised
the latter exception and indicated that the exception confers a discretion on the Children’s
Court to order that the parental responsibilities and rights of an adopted child’s parent or
guardian will not terminate as a result of the adoption. The court held that, failing excep-
tional circumstances, it will be in the best interests of an adopted child not to terminate the
parental responsibilities and rights of his or her biological parent who is the spouse, civil
union partner, or life partner of the person who is adopting him or her. As the Children’s
Court must promote the best interests of the child, it should, “except where there are sound
reasons not to do so, make an order that the granting of an adoption order in favour of a
step-parent will not terminate the responsibilities and rights of the child’s parent or other
192
guardian”. It is hoped that Children’s Courts will heed the decision and will, in the absence
________________________

181 See also s 231(7)(a) and (8).

182 S 252(1). For exceptions to this general rule, see s 252(2).
183 S 249(1).
184 S 249(2). The Family Advocate, an accredited child protection agency, an organ of state and any other
person prescribed in the regulations may also receive the fees prescribed in the regulations.
185 On the keeping of an adoption register (RACAP) and access to the information in the register, see ss 247
and 248.
186 S 242(1)(d).
187 S 242(1)(a) and (c). On the question whether a child who had been given up for adoption by a member of
a pension fund (as biological parent) may still be considered a “child of the member” in terms of the Pen-
sion Funds Act 24 of 1956, see Hayes March 2010 De Rebus 35. In JT v Road Accident Fund 2015 (1) SA 609
(GJ) a child was adopted by her grandmother when she was 7 years old, but her biological father contin-
ued to contribute to her maintenance after the adoption. When the father died in a motor vehicle acci-
dent, the question arose whether the Road Accident Fund could be held liable for loss of support the child
had suffered as a result of the death of her biological father. The court answered the question in the af-
firmative, finding that the father’s undertaking to support his child after her adoption created an enforce-
able right.
188 S 242(1)(b) and (c).
189 S 242(1).
190 Ibid.
191 2014 (1) SA 468 (GNP).
192 Par 14.
322 South African Family Law

of exceptional circumstances, be careful not to omit a clause providing that the adoption
does not terminate the parental responsibilities and rights of the child’s parent or other
193
guardian.
Furthermore, a court-approved post-adoption agreement offers a limited means of retain-
ing a link and/or relationship with the child after the adoption. A post-adoption agreement is
an agreement which the child’s parent or guardian concludes with the prospective adoptive
194
parent before the adoptive parent applies for the child’s adoption. The agreement must be
in a particular format and may only provide for communication (including post-adoption
contact) and the provision of information about the child after the adoption.195 The adoption
social worker who facilitates the adoption must assist the parties in preparing the agreement
and counsel them on its implications.196 If the child is of an age, maturity and stage of devel-
opment to understand the implications of a post-adoption agreement, the agreement may not
be entered into without the child’s consent.197 If it is in the child’s best interests, the court
which makes an adoption order may confirm the agreement, whereupon it takes effect.198
Once the agreement has taken effect it may be amended or terminated only by an order of
court on application by a party to the agreement or by the adopted child.199
An adoption order confers full parental responsibilities and rights in respect of the adopt-
ed child on the adoptive parent and confers the adoptive parent’s surname on the child.200
The child is for all purposes regarded as the child of the adoptive parent and vice versa.201
However, the adoption order does not permit any marriage, civil union or sexual intercourse
between the child and any person which would have been prohibited had the child not been
adopted. Thus, the prohibited degrees of relationship for purposes of entering into a mar-
riage or civil union and for committing the crime of incest remain intact despite the adop-
tion, and the adoption creates additional prohibited degrees of relationship, because the
adopted child and adoptive parent are regarded to be child and parent for all purposes.202
Finally, the adoption order does not affect any rights to property the child acquired before
the adoption.203
(i) Rescission of an adoption order
An adoption order may be rescinded on application by the adopted child’s parent if rescis-
sion is in the best interests of the child and the consent of the child’s parent to the adoption
was required but not obtained.204 The child, the child’s parent, another person who was the
________________________

193 See also Heaton 2013 Annual Survey of South African Law 431–432. And see cl 10 of the Children’s Amend-
ment Bill 13 of 2015 which adds par (e) to s 242(2). The new paragraph provides that an adoption order
does not automatically terminate the parental responsibilities and rights of the parent of the child when
the adoption order is granted in favour of the spouse or permanent domestic life-partner of that parent.
194 But see JT v Road Accident Fund 2015 (1) SA 609 (GJ), where Sutherland J incorrectly suggested that the
post-adoption agreement envisaged in the Children’s Act can be concluded after the adoption has been
granted. After the adoption the High Court may, in its capacity as upper guardian of all minors, grant any
order that is in the best interests of the child: see eg Haskins v Wildgoose [1996] 3 All SA 446 (T). However,
the foundation of this type of order is the common law, not the provisions of the Children’s Act relating to
post-adoption agreements as Sutherland J suggested. See further Heaton JQR Family 2015 (1) par 2.2 avail-
able at http://ipproducts.jutalaw.co.za/nxt/gateway.dll?f=templates&fn=default.htm&vid=Publish:10.1048
/Enu (accessed 26 June 2015).
195 S 234(1) and (5). The format is prescribed by the regulations under the Act.
196 S 234(3).
197 S 234(2).
198 S 234(4) and (6)(a).
199 S 234(6)(b).
200 S 242(2)(a) and (b). On registration of the child in the births register after the adoption, see ss 245 and
246.
201 S 242(3).
202 S 242(2)(c) On the prohibited degrees of relationship, see chs 3, 16 and 17 above.
203 S 242(2)(d).
204 S 243(3)(a) and (b) read with s 243(1). On rescission of adoption orders, see in general Louw 2010 De Jure
328.
 Chapter 23: Parental responsibilities and rights 323

child’s guardian immediately before the adoption, or the adoptive parent may apply for
rescission if rescission is in the best interests of the child and the adoptive parent did not
qualify as such at the time when the adoption order was made.205 The application must be
brought in the High Court or Children’s Court within a reasonable time, which may not
exceed two years from the date of the adoption.206
If the application is granted, the effects of the adoption cease to apply as from the date on
which the rescission takes effect, and all responsibilities, rights and other matters terminated
by the adoption order are restored.207 When rescinding the adoption order, the court may
make an appropriate placement order in respect of the child or order that the child be kept
in temporary safe care until an appropriate placement order can be made.208
(j) Inter-country adoption
(i) General
Chapter 16 and schedule 1 of the Children’s Act govern inter-country adoption. Schedule 1
contains the text of the Hague Convention on the Protection of Children and Co-operation
in Respect of Inter-country Adoption, which section 256(1) of the Act introduces into our
domestic law. The Convention applies if a child who is habitually resident in one Convention
country (that is, the state of origin) has been, is being, or will be moved to another Conven-
tion country (that is, the receiving state) either after his or her adoption in the state of origin
by a person who is habitually resident in the receiving state, or for the purposes of obtaining
such an adoption in the receiving state or the state of origin.209 However, if the prospective
adoptive parent is a family member of the child or will adopt the child jointly with the child’s
biological parent, the adoption is governed by the ordinary rules regarding adoption and not
by the rules regarding inter-country adoption.210
(ii) Adoption of a child who is habitually resident in South Africa by a person who is habitually resident
in another Convention country
In the case of adoption of a child who habitually resides in South Africa by a habitual resident
of another Convention country, the prospective adoptive parent must apply to the central
authority of the Convention country in which he or she resides.211 If that central authority is
satisfied that the person is eligible and suitable to adopt, it prepares a report on the person in
accordance with the Convention and other requirements prescribed by the regulations under
the Act. The report is submitted to the Director-General of Social Development in South
Africa,212 who is the central authority for South Africa.213 If a suitable child is available in South
Africa for adoption, the director-general prepares a report on the child in accordance with
the Convention and any other prescribed requirements. This report is submitted to the
central authority of the Convention country in which the prospective adoptive parent
resides.214 If the central authorities of the two countries agree on the adoption, the
________________________

205 S 243(3)(a) and (c) read with s 243(1).

206 S 243(1) and (2). On the persons who must receive notice of the application for rescission, see s 243(4).
207 S 244(1).
208 S 244(2). An adoption order, a refusal to make an adoption order, and an order rescinding an adoption
can also be set aside on appeal by the High Court: s 51(1).
209 Art 2(1). A full record of the states between which the Convention operates can be found on the website
of the Permanent Bureau of the Hague Conference on Private International Law at http://www.hcch.net/
index_en.php?act=conventions.statusprint&cid=69. On inter-country adoption from a Southern and East-
ern African perspective, see Sloth-Nielsen, Mezmur and Van Heerden March 2010 IFL 86. On inter-
country adoption, see further Human in Davel and Skelton (eds) Commentary on the Children’s Act ch 16;
Nicholson in Boezaart (ed) Child Law in South Africa ch 16.
210 Ss 261(8) and (9), 262(8) and (9).
211 S 261(1); art 14.
212 S 261(2). Art 16(1)(a) prescribes the information the report must contain.
213 S 257(1)(a) read with the definitions of “Director-General” and “Department” in s 1(1).
214 S 261(3); art 16. The director-general may delegate his or her powers or duties to an official in the Depart-
ment of Social Development: s 258(1); art 22. Certain powers or duties may be performed by another
continued
324 South African Family Law

director-general refers the application to the South African Children’s Court.215 The Chil-
dren’s Court then decides the matter like it would any other adoption application. However,
it may only grant the adoption if it is satisfied that the following requirements are met:216
(1) The general requirements regarding persons who may adopt a child as set out in the Act
are complied with.
(2) The adoption application has been considered as prescribed by the Act.
(3) The adoption is in the best interests of the child.
(4) The child is in South Africa.
(5) The child is not prevented from leaving South Africa under a South African law or court
order.
(6) The arrangements for the child’s adoption meet the requirements of the Convention
and any other prescribed requirements.
(7) The central authorities of the Convention country and South Africa have agreed to the
adoption.
(8) The name of the child has been in the Register on Adoptable Children and Prospective
Adoptive Parents for at least 60 days and no fit and proper adoptive parent for the child
is available in South Africa.
(iii) Adoption of a child who is habitually resident in South Africa by a person who is habitually resident
in a non-Convention country
If the prospective adoptive parent habitually resides in a non-Convention country, he or she
must apply to the competent authority of that country.217 The process which must be followed
after such an application has been received corresponds to the process if the applicant habit-
ually resides in a Convention country, except that the arrangements for the child’s adoption
need only meet the requirements prescribed by the regulations.218
(iv) Adoption by a South African resident of a child who is habitually resident in another Convention
country
A person who habitually resides in South Africa and wants to adopt a child who habitually
resides in another Convention country must apply to the central authority in South Africa.219
If the central authority is satisfied that the person is fit and proper to adopt, he or she pre-
pares a report on the person in accordance with the Convention and any other requirements
prescribed by the regulations, and submits the report to the central authority of the other
Convention country.220 If an adoptable child is available, the central authority of the other
Convention country prepares a report on the child in accordance with the Convention and
any other requirement prescribed by the regulations, and submits it to the South African
central authority.221 If the central authorities of the two countries agree on the adoption, the
central authority of the other Convention country refers the application for consideration to
the competent authority in that country.222

________________________

organ of state or an accredited child protection organisation: s 258(2). Accreditation is governed by s 259
and arts 10 and 11.
215 S 261(4). The South African central authority may withdraw its consent within 140 days from the date on
which it consented to the adoption if withdrawal is in the best interests of the child. If consent is with-
drawn, the child must be returned to South Africa forthwith: s 261(6).
216 S 261(5); see also arts 4 and 5.
217 S 262(1).
218 S 262(2)–(7).
219 S 264(1).
220 S 264(2).
221 S 264(3).
222 S 264(4).
 Chapter 23: Parental responsibilities and rights 325

(v) Adoption by a South African resident of a child who is habitually resident in a non-Convention
country
If the child habitually resides in a non-Convention country, the prospective adoptive parent
must also apply to the central authority in South Africa.223 The process which must then be
followed is similar to that which applies if the child habitually resides in a Convention coun-
try, except that the arrangements for the child’s adoption need only meet the requirements
prescribed by the regulations.224
(vi) Recognition of a foreign adoption
South Africa is obliged to recognise a foreign adoption of a child who habitually resides in
another Convention country by someone who habitually resides in South Africa if an adop-
tion compliance certificate was issued in the Convention country where the adoption took
place, and the certificate is still in force.225 The same applies if someone who habitually resides
in another Convention country adopted a child who habitually resides in a Convention
country.226 If an adoption compliance certificate was not issued in the Convention country,
the director-general may issue a declaration recognising the adoption.227 If the adoption
occurred in a non-Convention country, the director-general may issue a declaration recognis-
ing the adoption if the adoption complied with the law of the particular country and has not
been rescinded, and the adoption has the same effect it would have had had it occurred in
South Africa.228 If a foreign adoption order is recognised in South Africa, the order has the
same effect as an adoption order made in South Africa in terms of South African law.229
Taking the child’s best interests into account, the director-general may refuse to recognise
a foreign adoption if the adoption is manifestly contrary to South African public policy.230 In
such event, an application for the child’s adoption may be made in the Children’s Court in
terms of South African law.231

23.3 The position when more than one person has parental
responsibilities and rights in respect of a child
23.3.1 General
If more than one person has parental responsibilities and rights in respect of a child, the per-
sons 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.232 Thus, the starting
point is that co-holders of parental responsibilities and rights may independently exercise
their responsibilities and rights.

23.3.2 Guardianship
In respect of guardianship, section 18(5) read with section 18(3)(c) of the Children’s Act
specifically requires the consent of all the child’s guardians for the following juristic acts:
(1) The child’s marriage.
(2) The child’s adoption.
(3) The child’s departure or removal from South Africa.
________________________

223 S 265(1).
224 S 265(2)–(4).
225 S 266(1); art 23.
226 S 266(2); art 23.
227 S 266(3).
228 S 268.
229 S 269. On the consequences of such recognition, see also arts 26 and 27.
230 S 270(1); art 24.
231 S 271.
232 Ss 18(4), 18(5) and 30(2) of the Children’s Act.
326 South African Family Law

(4) The child’s application for a passport.

(5) The alienation or encumbrance of any immovable property of the child.
The High Court or Regional Court may grant exemption from the requirement of joint
consent.233 In recent years, the courts have frequently been approached for orders authorising
one parent to emigrate with his or her child despite the other parent’s objections. The deci-
sions have dealt with the predecessor to section 18(3)(c)(iii) of the Children’s Act, that is,
section 1(2) of the Guardianship Act 192 of 1993, which required the consent of both parents
of a child born of married parents for the child’s removal from South Africa, unless a court
ordered otherwise. Those decisions are likely to be applied under the Children’s Act too, as
the principles they state remain valid.
In earlier decisions, the courts held that the child’s best interests must be weighed against
the care-giving parent’s right to carry on with his or her life, and the impact that emigration
would have on the non-care-giving parent’s right of contact.234 The Supreme Court of Appeal
subsequently rejected this view. It emphasised that the child’s best interests must always be the
determining factor.235 It further held that, as a rule, a court would not lightly refuse the care-
giving parent permission to emigrate with his or her child if the decision to emigrate was bona
fide and reasonable.236 In Jackson v Jackson 237 the Supreme Court of Appeal explained that this
is so, not because of the rights of the care-giving parent, but because it would usually not be in
the child’s best interests to thwart the care-giving parent in his or her endeavour to emigrate
“in pursuance of a decision reasonably and genuinely taken”. In F v F 238 the same court
reiterated this reason and further pointed out that the care-giving parent’s constitutional
rights to dignity, privacy and freedom of movement also play a role. Frustrating the parent in
the exercise of these rights may also have a detrimental impact on the child’s interests,
because the emotional and psychological well-being of a parent is negatively affected if he or
she is forced to relinquish an important life-enhancing opportunity, and a frustrated and
bitter parent cannot provide a child with a happy and secure environment. Furthermore,
courts must be
acutely sensitive to the possibility that the differential treatment of custodian parents and their
non-custodian counterparts – who have no reciprocal legal obligation to maintain contact with
the child and may relocate at will – may, and often does, indirectly constitute unfair gender dis-
crimination. Despite the constitutional commitment to equality, the division of parenting roles
in South Africa remains largely gender-based. It is still predominantly women who care for chil-
dren and that reality appears to be reflected in many custody arrangements upon divorce. The
refusal of relocation applications therefore has a potentially disproportionate impact on women,
restricting their mobility and subverting their interests and the personal choices that they make
to those of their children and former spouses.239
However, each case must be decided on its facts and the court must not assume too readily
that the care-giving parent’s interests coincide or are compatible with the child’s best
interests. To determine whether or not the proposed move is in the best interests of the child,
the court must carefully evaluate the reasonableness of the parent’s decision to move, the
practical and other considerations on which the decision is based,240 and the extent to which
________________________

233 S 18(4) and (5) read with s 45(3)(a), (d) and (g).
234 Godbeer v Godbeer 2000 (3) SA 976 (W); Latouf v Latouf [2001] 2 All SA 377 (T); Schutte v Jacobs (Nr 2) 2001
(2) SA 478 (W).
235 Jackson v Jackson 2002 (2) SA 303 (SCA); F v F [2006] 1 All SA 571 (SCA), 2006 (3) SA 42 (SCA). See also
Van Rooyen v Van Rooyen 1999 (4) SA 435 (C); Godbeer v Godbeer 2000 (3) SA 976 (W); Latouf v Latouf [2001]
2 All SA 377 (T); Schutte v Jacobs (Nr 1) 2001 (2) SA 470 (W); Schutte v Jacobs (Nr 2) 2001 (2) SA 478 (W);
Ford v Ford [2004] 2 All SA 396 (W); Cunningham (born Ferreira) v Pretorius [2010] JOL 25638 (GNP).
236 Jackson v Jackson 2002 (2) SA 303 (SCA); F v F [2006] 1 All SA 571 (SCA), 2006 (3) SA 42 (SCA).
237 2002 (2) SA 303 (SCA) par 2.
238 [2006] 1 All SA 571 (SCA), 2006 (3) SA 42 (SCA), Heaton and Kruger Casebook on Family Law case [80].
239 F v F [2006] 1 All SA 571 (SCA), 2006 (3) SA 42 (SCA) par 12, fns omitted. On this point, see also Bont-
huys 2000 SAJHR 486.
240 Factors the courts have considered in deciding whether the decision to emigrate is bona fide and reasonable
have included the practical and other considerations on which the decision is based, such as the parent’s
continued
 Chapter 23: Parental responsibilities and rights 327

the parent has engaged with and properly thought through the real advantages and disad-
vantages to the child of the proposed move.241 It must in particular take the factors which are
listed in section 7(1) of the Act into account.242 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 development to be able to
participate in the matter.243 The effect of the relocation on the child’s relationship with the
244
non-care-giving parent must also be carefully considered.

23.3.3 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 Children’s 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 significantly to change, or to have a signifi-
cant adverse effect on, a co-holder’s exercise of parental responsibilities and rights. Once the
person has given such consideration to the co-holder’s views and wishes, he or she may,
however, act independently.245 Failing to give consideration to the co-holder’s views and
wishes does not render the decision void or invalid, but a decision that is taken without
considering the co-holder’s views and wishes can be set aside on review if the decision is not
in the child’s best interests.246

23.3.4 Surrender or transfer of parental responsibilities and rights is prohibited

A co-holder of parental responsibilities and rights may not surrender or transfer his or her
parental responsibilities and rights. However, co-holders may agree that one of them will
exercise any or all of the responsibilities and rights on behalf of the other co-holder(s).247
Thus, for example, an unmarried father who has parental responsibilities and rights may not
waive them or transfer them to the child’s mother, but he may authorise her to exercise them
on his behalf.

23.3.5 Parenting plan

If co-holders of parental responsibilities and rights experience difficulties in exercising those
responsibilities and rights, they may approach the court for an appropriate order, but before
doing so they must try to agree on a parenting plan.248 In preparing their parenting plan, they
________________________

desire to return home if he or she is a foreigner, the presence of family members in the foreign country,
the parent’s employment opportunities, and his or her financial and other prospects in the foreign country:
Van Rooyen v Van Rooyen 1999 (4) SA 435 (C); Godbeer v Godbeer 2000 (3) SA 976 (W); Heynike v Roets [2001]
2 All SA 75 (C) (also reported as H v R 2001 (3) SA 623 (C)); Latouf v Latouf [2001] 2 All SA 377 (T); Katz
v Katz [2009] JOL 23557 (GSJ). On the courts’ approach towards granting consent to a child’s emigration,
see further Schäfer Law of Access 154–158; Schäfer in Clark (ed) Family Law Service par E60; Skelton in
Boezaart (ed) Child Law in South Africa 88–90; Bonthuys 2000 SAJHR 486; Kruger 2001 THRHR 452; Bek-
ker and Van Zyl 2003 THRHR 146; Clark 2003 SALJ 80; Davel and Boniface 2003 THRHR 138; Louw 2003
De Jure 115; Van Schalkwyk 2005 De Jure 332; Strous 2007 South African Journal of Psychology 223; Barrie 2009
TSAR 562; Albertus 2009 (2) Speculum Juris 70 et seq; Domingo 2011 (2) PELJ 148. See also B v M [2006] 3
All SA 109 (W), 2006 (9) BCLR 1034 (W), which concerns relocation within South Africa but in which the
court dealt with the judicial approach in applications for leave to relocate to a foreign country.
241 F v F [2006] 1 All SA 571 (SCA), 2006 (3) SA 42 (SCA).
242 On s 7(1), see ch 14 above.
243 S 10 of the Children’s Act. See also F v F [2006] 1 All SA 571 (SCA), 2006 (3) SA 42 (SCA); HG v CG 2010
(3) SA 352 (ECP); Heaton 2010 Annual Survey of South African Law 459–461.
244 Cunningham (born Ferreira) v Pretorius [2010] JOL 25638 (GNP).
245 J v J 2008 (6) SA 30 (C).
246 Ibid.
247 S 30(3) of the Children’s Act. An agreement in terms of which a co-holder authorises somebody to exer-
cise parental responsibilities and rights on his or her behalf does not divest him or her of those respon-
sibilities and rights: s 30(4).
248 S 33(2) of the Children’s Act. 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 arrangements on the way in which they will
continued
328 South African Family Law

must seek the assistance of a Family Advocate, social worker or psychologist, or mediation
through a social worker or other suitably qualified person.249 If one or more of the co-holders
of parental responsibilities and rights refuse to engage in discussions about a parenting plan,
the court can be approached for an order on the exercising of parental responsibilities and
rights. In circumstances like these the court may order the unwilling co-holder to enter into a
250
parenting plan with the other co-holder. Even if co-holders of parental responsibilities and
rights do not experience difficulties in exercising their responsibilities and rights, they may
enter into a parenting plan,251 but then they need not seek the assistance of a Family Advo-
cate, social worker or psychologist, or mediation by any person.252
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, con-
tact between the child and any of the parties or between the child and any other person, and
the child’s schooling and religious upbringing.253 The plan must be in writing, be signed by
the parties and comply with the best interests of the child standard as set out in section 7 of
the Children’s Act.254 The plan may be registered with a Family Advocate or made an order of
court.255 A parenting plan that was registered with a Family Advocate may subsequently be
amended or terminated by the Family Advocate upon application by the parties to the plan.256
A parenting plan that was made an order of court may only be amended or terminated by a
further order of court. The following persons may approach the court for amendment or ter-
mination:257
258
(1) The parties to the parenting plan.
(2) The child in respect of whom the parties to the parenting plan have parental responsibil-
ities and rights, if 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.

________________________

exercise their respective parental responsibilities and rights: see also PD v MD 2013 (1) SA 366 (ECP);
Heaton in Davel and Skelton (eds) Commentary on the Children’s Act 3-37. On the question whether parent-
ing plans serve the best interests of the parent or the child, see Mahlobogwane 2013 Obiter 218.
249 S 33(5) of the Children’s Act. On the difficulties relating to when a Family Advocate, social worker or
psychologist can be said to be giving “assistance” in preparing a parenting plan, and the meaning of the
phrase “other suitably qualified person”, see Heaton in Davel and Skelton (eds) Commentary on the Chil-
dren’s Act 3-38. On the issue of whether an attorney is a “suitably qualified person”, see Mmusinyane 2007
(2) Codicillus 15.
250 M v V (Born N) [2011] JOL 27045 (WCC).
251 S 33(1) of the Children’s Act.
252 See further Heaton in Davel and Skelton (eds) Commentary on the Children’s Act 3-37–3-38.
253 S 33(3) of the Children’s Act.
254 Ss 33(4) and 34(1)(a) of the Children’s Act.
255 S 34(1)(b) of the Children’s Act. On which court has jurisdiction, see Heaton in Davel and Skelton (eds)
Commentary on the Children’s Act 3-40–3-41. Since the Act does not indicate that there are different grounds
for registration by the Family Advocate and the making of a court order, the parties have a choice as to
whether they want to approach the Family Advocate or the court: see also Heaton Persons 77; Heaton in
Davel and Skelton (eds) Commentary on the Children’s Act 3-39; Skelton in Boezaart (eds) Child Law in South
Africa 91.
256 S 34(4) of the Children’s Act.
257 S 34(5) of the Children’s Act. On which court must be approached for permission, see Heaton in Davel
and Skelton (eds) Commentary on the Children’s Act 3-40–3-41.
258 In PD v MD 2013 (1) SA 366 (ECP) the respondent 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 court, provided that he or she made a reasona-
ble effort to reach agreement with the other co-holder(s) before approaching the court: par 29.
 Chapter 23: Parental responsibilities and rights 329

23.4 Judicial interference with parental responsibilities and rights

23.4.1 General
The High Court has common-law and statutory powers to interfere with parental responsibil-
ities and rights and even to terminate them. The Regional Courts and Children’s Courts have
statutory powers to do the same. Below, the most important sources of the judicial power to
interfere with parental responsibilities and rights are discussed. Whenever interference is at
issue the court’s decision has to be based on the child’s best interests. The court must there-
fore take the factors set out in section 7(1) of the Children’s Act into account.259 Due consid-
eration also has to be given to the views of the child if he or she is of an age, maturity and
stage of development to be able to participate in the matter.260 Furthermore, if the child could
suffer substantial injustice if he or she were unrepresented in proceedings relating to inter-
ference with parental responsibilities and rights, a legal representative must be appointed for
the child.261

23.4.2 The High Court as upper guardian

At common law, the High Court has the power to look after the interests of all minors and to
interfere with parental responsibilities and rights if this is in the best interests of the child. For
example, if the child’s best interests demand this, the court may ratify acts a person per-
formed whilst labouring under the mistaken belief of being the child’s natural guardian;262
suspend a parent’s guardianship and appoint a third party (or more than one third party
jointly) as the child’s guardian(s);263 appoint a parent and a third party as joint guardians;264
remove the child from a parent’s care and place him or her in someone else’s care;265 award
contact to a third party who does not have an inherent right of contact (such as a sibling,
grandparent, or the former spouse of the child’s parent);266 consent to the performance of a
medical procedure on the child;267 assume responsibility for assisting the child in litigation;268
deviate from procedural rules and consider inadmissible evidence in order to serve the child’s
best interests;269 exercise jurisdiction in respect of a child who is only temporarily present
in its area of jurisdiction;270 review any type of order or ruling affecting the rights of the
________________________

259 On the best interests of the child, see further ch 14 above and the discussion of s 28(2) of the Constitution
of the Republic of South Africa, 1996 and ss 6, 7 and 9 of the Children’s Act in ch 22 above.
260 S 10 of the Children’s Act.
261 S 28(1)(h) of the Constitution. On the child’s right to legal representation, see further chs 14 and 22 above.
262 Yu Kwam v President Insurance Co Ltd 1963 (1) SA 66 (T).
263 See eg P v P 2002 (6) SA 105 (N).
264 Ex parte Kedar 1993 (1) SA 242 (W).
265 See eg September v Karriem 1959 (3) SA 687 (C); P v P 2002 (6) SA 105 (N).
266 See eg Bethell v Bland 1996 (2) SA 194 (W). The Appellate Division (now the Supreme Court of Appeal)
has held that in first-time contact or care disputes, there is no evidentiary burden on either party. The liti-
gation is more in the nature of a judicial investigation as to whether an award of contact or care is in the
best interests of the child: B v S 1995 (3) SA 571 (A); T v M 1997 (1) SA 54 (A); see also Bethell v Bland
1996 (2) SA 194 (W); Tyler v Tyler [2004] 4 All SA 115 (NC). On contact by third parties, see further Town-
send-Turner v Morrow [2004] 1 All SA 235 (C); Kleingeld v Heunis 2007 (5) SA 559 (T); Erasmus v Kemp In re
Minor Child Kemp [2009] JOL 24294 (T); Schäfer in Clark (ed) Family Law Service pars E56; South African
Law Commission Project 100 Access to Minor Children by Interested Persons Report; Pieterse 2000 Stell LR 338–
340; Labuschagne and Van der Linde 2002 Stell LR 415, 2003 De Jure 344; Zaal and Pillay 2005 SALJ 300;
Van Schalkwyk 2009 De Jure 330.
267 See eg Seetal v Pravitha 1983 (3) SA 827 (D); M v R 1989 (1) SA 416 (O); O v O 1992 (4) SA 137 (C); Hay v
B 2003 (3) SA 492 (W).
268 Vista University (Bloemfontein Campus) v Student Representative Campus Vista 1998 (4) BCLR 514 (O) (also re-
ported as Vista University, Bloemfontein Campus v Student Representative Council, Vista University 1998 (4) SA
102 (O)). On a minor’s capacity to litigate, see Heaton Persons 110–111.
269 See eg Shawzin v Laufer 1968 (4) SA 657 (A); Zorbas v Zorbas 1987 (3) SA 436 (W); Terblanche v Terblanche
1992 (1) SA 501 (W); Kirsh v Kirsh [1999] 2 All SA 193 (C) (also reported as K v K 1999 (4) SA 691 (C));
J v J 2008 (6) SA 30 (C).
270 Eilon v Eilon 1965 (1) SA 703 (A); Litthauer v Litthauer 1973 (4) SA 290 (W); Ex parte Kajee 2004 (2) SA 534
(C).
330 South African Family Law

child;271 and, in exceptional circumstances, award sole guardianship and sole care to foreign-
ers who intend to obtain an inter-country adoption.272
The High Court is reluctant to interfere with parental responsibilities and rights.273 The
mere fact that it disagrees with a parent’s decision does not mean that it will interfere.274 It
must be convinced that the child’s best interests demand interference. In Davy v Douglas 275 the
concept of the reasonable parent was used as the test for determining whether judicial inter-
ference is warranted. The court stated that a reasonable parent must be concerned with his or
her child’s interests. If the manner in which the parent exercises parental responsibilities and
rights does not put the child’s interests first, the court will interfere.

23.4.3 Matrimonial Affairs Act 37 of 1953

Section 5(1) of the Matrimonial Affairs Act empowers the High Court to make whatever
order it deems fit in respect of guardianship or care of, or contact with a child born of mar-
ried parents who are divorced or are still married but live apart. The section expressly
empowers the court to award sole guardianship or sole care to either parent.276

23.4.4 Marriage Act 25 of 1961

Section 25(4) of the Marriage Act 25 of 1961 authorises the High Court to consent to a
minor’s marriage if the minor’s parent or guardian, or the presiding officer of the Children’s
Court withholds consent.277

23.4.5 Divorce Act 70 of 1979

In terms of section 6(3) of the Divorce Act, the court that grants a divorce may make whatever
order it deems fit with regard to maintenance of a dependent child of the marriage, guard-
ianship or care of, and contact with a minor child of the marriage. The order may subse-
quently be rescinded or varied in terms of section 8(1) of the Divorce Act.278

23.4.6 Domestic Violence Act 116 of 1998

In terms of section 7(6) of the Domestic Violence Act 116 of 1998, a court that issues a protec-
tion order against the perpetrator of domestic violence may refuse the perpetrator contact
with a child or impose conditions in respect of his or her contact with the child if this is in the
child’s best interests.279

23.4.7 Children’s Act 38 of 2005

(a) General
Several provisions of the Children’s Act empower the court to interfere in the exercise of a per-
son’s parental responsibilities and rights. Dispensing with a parent or guardian’s consent to
adoption, the court’s power to grant exemption from the requirement that all guardians must
consent to the legal transactions mentioned in section 18, and the court’s power to assign
guardianship, care or contact are discussed above in this chapter. Termination, extension,
suspension and circumscription of parental responsibilities and rights, dispensing with
________________________

271 Soller v Maintenance Magistrate, Wynberg 2006 (2) SA 66 (C); B v B 2008 (4) SA 535 (W).
272 AD and DD v DW (The Centre for Child Law (Amicus Curiae) and The Department of Social Development (Inter-
vening Party)) 2008 (4) BCLR 359 (CC) (also reported as AD v DW (Centre for Child Law as Amicus Curiae;
Department for Social Development as Intervening Party) 2008 (3) SA 183 (CC)).
273 See also above in this chapter the discussion of the court’s reluctance in the context of care.
274 See eg S v L 1992 (3) SA 713 (E); Townsend-Turner v Morrow [2004] 1 All SA 235 (C).
275 1999 (1) SA 1043 (N).
276 On sole guardianship and sole care, see ch 14 above.
277 See further ch 3 above.
278 See further ch 14 above.
279 See further ch 21 above.
 Chapter 23: Parental responsibilities and rights 331

consent to medical treatment or an operation, the court’s powers regarding a child in need of
care, and the court’s powers to make an order against an abducting parent are discussed im-
mediately below.
(b) Termination, extension, suspension and circumscription of a person’s parental
responsibilities and rights
In terms of section 28 of the Act, the court may extend or delineate the exercise of the paren-
tal responsibilities and rights of a person, terminate all or any of his or her parental re-
sponsibilities and rights, or suspend all or any of his or her parental responsibilities and rights
for a period.280 However, the court may not terminate all the parental rights of a person while
281
retaining all his or her parental responsibilities. In GM v KI a mother sought an order
terminating the parental rights of the child’s father but retaining his parental responsibilities.
The court held that the incidents of parental responsibilities and rights that are set out in
section 18 of the Act are cast in terms of responsibilities and rights and that it was “neither
desirable nor practicable to attempt to define which ... incidence of the parental condition is
282
[a] ‘right’ and which [an] ‘obligation’”. Furthermore, the other sections of the Act which
deal with parental responsibilities and rights refer to responsibilities and rights conjunctively.
This applies to section 28, too. As the section does not provide for suspension or termination
of parental responsibilities or rights, it indicates that the legislator did not intend to empower
the court to order a general suspension or termination of either parental rights or parental
responsibilities alone. Moreover, as parental responsibilities and rights are mostly two sides of
a coin, an order that terminated all parental rights but left all parental responsibilities intact
would be difficult, if not impossible, to apply. Certain aspects of parental responsibilities
and/or rights can be suspended or terminated, but all his or her parental rights cannot be
terminated separately from all his or her parental responsibilities.
If the court suspends a person’s parental responsibilities and rights, the suspension may
283
not be indefinite. The section expressly provides that the suspension must be “for a period”.
Therefore the suspension must be linked to a specified period or to the occurrence of an
284
event. If the period is linked to an event, any uncertainty that may arise can be resolved by
way of affidavit “or other means of satisfying third parties as to the position”, or by approach-
285
ing the court for clarity.
The division of the High Court, the Regional Court or the Children’s Court within whose
area of jurisdiction the child ordinarily resides has jurisdiction to make the order, unless the
matter deals with guardianship. If guardianship is at issue, only the High Court or Regional
Court has jurisdiction.286
The following persons may approach the court for the order:287
(1) A co-holder of parental responsibilities and rights. In this regard it must be borne in
mind that section 33(2) prescribes that, before seeking court intervention, co-holders
who are experiencing difficulties in exercising their parental responsibilities and rights
must attempt to agree on a parenting plan. An attempt to enter into a parenting plan is
therefore a prerequisite to a co-holder’s applying for an order in terms of section 28 if
________________________

280 S 28(1)(a). On the termination of parental responsibilities and rights, see in general Bekink 2012 (1) PELJ
178; Ramruch Dec 2013 De Rebus 24. S 28(2) authorises combining an application in terms of s 28(1) and
an application for the assignment of contact and care in terms of s 23. Thus, eg, the applicant could ask
the court to suspend particular elements of a person’s parental responsibilities and rights and to assign
those elements to the applicant.
281 2015 (3) SA 62 (GJ).
282 Par 10.
283 S 28(1)(a).
284 GM v KI 2015 (3) SA 62 (GJ). On the implications of the use of the phrase “for a period”, see also Heaton
Persons 78; Heaton in Davel and Skelton (eds) Commentary on the Children’s Act 3-27.
285 Par 16.
286 S 28(1) read with ss 29(1) and 45(3)(a) and (b).
287 S 28(3)(b)–(e).
332 South African Family Law

the application derives from difficulties co-holders are experiencing in exercising their
parental responsibilities and rights.288
(2) Any other person having a sufficient interest in the care, protection, well-being or devel-
opment of the child.
(3) A child, if he or she has the court’s consent.
(4) Any person who is acting in the child’s interest and has the court’s consent.
(5) A Family Advocate or the representative of any interested organ of state.
When considering the application, the court must take the following factors into account:289
(1) The best interests of the child.
(2) The relationship between the child and the person whose parental responsibilities and
rights are being challenged.
(3) The degree of commitment the person has shown towards the child.
(4) Any other fact that should, in the court’s opinion, be taken into account.
Section 135(1) also empowers the High Court, Regional Courts and Children’s Courts to
make an order suspending for a period, terminating, restricting, circumscribing or transferring
any or all of a person’s parental responsibilities and rights. The application may be made by
the Director-General or provincial head of the Department of Social Development or a
designated child protection organisation. The application may be made without the consent
of the child’s parent or care-giver if:
(1) The child is older than seven years and has been in alternative care for more than two
years.
(2) The child is older than three years but younger than seven years and has been in alterna-
tive care for more than a year.
(3) The child is three years or younger and has been in alternative care for more than six
months.290
When considering the application, the court must be guided by the general principles set out
in chapter 2 of the Act and the principles regarding parental responsibilities and rights set out
in chapter 3 of the Act to the extent that those principles are applicable to the matter.291 The
court must further take into account all relevant factors, including specifically the following:292
(1) The need for the child to be permanently settled, preferably in a family environment,
taking into consideration the child’s age and stage of development.
(2) The success or failure of any attempts that have been made to reunite the child with the
person whose parental responsibilities and rights are being challenged.
(3) The relationship between the person and the child.
(4) The degree of commitment the person has shown towards the child.
(5) Whether there was any contact between the parent and the child in the preceding year.
(6) The probability of arranging an adoption or placing the child in another form of alter-
native care.
293
(c) Dispensing with consent to medical treatment, an operation or an HIV test
A child who is below the age of 12 years may not have medical treatment or an operation
without his or her guardian’s consent.294 Consent is also needed if the child has already
________________________

288 See also Heaton Persons 78; Heaton in Davel and Skelton (eds) Commentary on the Children’s Act 3-28. On
parenting plans, see above in this chapter.
289 S 28(4).
290 S 135(2).
291 S 136(a). Ch 2 consists of ss 6–17 and ch 3 of ss 18–41. Many of the principles contained in these sections
are discussed above in this chapter and in chs 14 and 22 above.
292 S 136(b).
293 See also Mahery, Proudlock and Jamieson Guide to the Children’s Act for Health Professionals 1 et seq.
294 S 129(3)–(5).
 Chapter 23: Parental responsibilities and rights 333

turned 12 but is immature and does not have the mental capacity to understand the benefits,
risks, social and other implications of the medical treatment or operation.295 If the child is
older than 12 and sufficiently mature and has the mental capacity to understand the benefits,
risks, social and other implications of the operation, he or she still needs the assistance (but
not the consent) of his or her guardian for an operation on himself or herself or his or her
child.296 The guardian may not refuse to assist the minor or withhold consent purely on the
ground of religious or other beliefs, unless he or she can show that there is a medically
accepted alternative to the operation or medical treatment.297 If the guardian unreasonably
withholds consent, refuses to assist the minor, is incapable of consenting or assisting the
minor, cannot readily be traced or is deceased, the Minister of Social Development may give
consent.298 If the Minister or the guardian refuses or is unable to give consent, the High Court
or Children’s Court may give consent.299 If the treatment or operation is necessary to preserve
the child’s life or 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 give consent.300
A minor of any age may have a termination of pregnancy without her guardian’s consent
provided that she is capable of giving informed consent.301 However, a child below the age of
12 requires the consent of his or her parent or guardian to obtain contraceptives.302 The
Children’s Act does not provide for those cases in which the parent or guardian withholds
consent. 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.303
Different rules apply to an HIV test on a child. A child may undergo an HIV test in the fol-
lowing instances only:
(1) The test is necessary to establish whether a health worker may have contracted HIV as a
result of contact in the course of a medical procedure with any substance from the
child’s body that may transmit HIV.
(2) Any other person may have contracted HIV through contact with a substance from the
child’s body that may transmit HIV, and a court has authorised the test.
(3) The test is in the child’s best interests and the necessary consent has been given for the
test.304
If the child is below 12 years of age and insufficiently mature to understand the benefits, risks
and social implications of the test, the consent of the child’s parent or care-giver, the provin-
cial head of the Department of Social Development, or the child protection organisation that
is arranging the child’s placement is required.305 If the child does not have a parent or

________________________

295 S 129(4).
296 S 129(3). On the requirement of due assistance, see Heaton Persons 107; Slabbert 2004 (2) PELJ 8. On the
question whether the consent provisions give effect to children’s rights to bodily integrity and autonomy,
see Du Plessis, Govindjee and Van der Walt 2014 Obiter 1. On the importance of involving children in deci-
sion-making in the health care setting, see Kruger and Coetzee 2010/2011 South African Child Gauge 36.
297 S 129(10). On this provision, see also Malherbe and Govindjee 2010 THRHR 61; Du Plessis, Govindjee and
Van der Walt 2014 Obiter 17–18.
298 S 129(7) and (8). The same applies if the minor unreasonably withholds consent.
299 S 129(9). The same applies if the child is unable to give consent.
300 S 129(6).
301 S 5(2) and (3) of the Choice on Termination of Pregnancy Act 92 of 1996; 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)). See further McQuoid-Mason June 2010 SAJBL 12.
302 S 134(1) and (2).
303 The High Court’s powers as upper guardian are discussed above in this chapter.
304 S 130(1).
305 S 130(2)(b)–(d).
334 South African Family Law

care-giver and no child protection organisation is arranging his or her placement, the super-
intendent or person in charge of the hospital may consent to the test.306 If the parent or care-
giver is incapable of giving consent, or if the parent, care-giver, provincial head or child
protection organisation unreasonably withholds consent, the Children’s Court may give
consent.307 If the test results show that the child is HIV-positive, the result may not be dis-
closed unless the consent of the child’s parent or care-giver or the child protection organisa-
tion is obtained.308 If the child has no parent or care-giver and no designated child protection
organisation is arranging his or her placement, the superintendent or person in charge of the
hospital may give consent.309 If the child’s parent or care-giver is incapable of giving consent
or unreasonably withholds consent and disclosure is in the child’s best interests, the Chil-
dren’s Court may give consent. The same applies if the child protection organisation unrea-
sonably withholds consent and disclosure is in the child’s best interests.310 The Act does,
however, permit disclosure of the child’s HIV-positive status without consent if the disclosure
is made within the scope of a person’s powers and duties in terms of the Act or any other law,
is necessary for the purposes of carrying out the provisions of the Act, takes place for the
purposes of legal proceedings, or is made in terms of a court order.311
(d) A child in need of care and protection312
(i) Investigating whether a child is in need of care and protection, and removing the child into
temporary safe care
If it appears to the presiding officer of a Children’s Court in the course of any proceedings
before the court that a child who is involved in or affected by the proceedings is in need of
care and protection, he or she must order that the question of whether the child is in need of
care and protection be referred to a designated social worker for investigation.313 The same
applies if any person gives evidence on oath or affirmation before the court that a child who
resides in the court’s area of jurisdiction is in need of care and protection.314 The court may
order that the child be placed in temporary safe care if this is necessary for the child’s safety
and well-being.315 A Clerk of the Children’s Court who discovers that a child may be in need
of care and protection is also obliged to refer the matter to a designated social worker for
investigation.316 Furthermore, if a Regional Court or a court which adjudicates a matter
in terms of the Matrimonial Affairs Act, Divorce Act, Maintenance Act 99 of 1998, Domes-
tic Violence Act or Recognition of Customary Marriages Act is of the view that a child of a
party to the proceedings has been abused or neglected, it must request the Director for
Public Prosecutions to investigate the alleged abuse or neglect.317 It may also suspend the

________________________

306 S 130(2)(e).
307 S 130(2)(f). The same applies if the child is incapable of giving consent or unreasonably withholds consent.
308 S 133(2)(b)–(c).
309 S 133(2)(d).
310 S 133(2)(e). The same applies if the child is incapable of giving consent or unreasonably withholds con-
sent and disclosure is in the child’s best interests.
311 S 133(1).
312 On the child in need of care and protection, and the court’s powers in preliminary hearings and the
eventual determination whether a child is in need of care and protection, see further Bosman-Sadie and
Corrie ch 9; Matthias and Zaal in Boezaart (ed) Child Law in South Africa ch 7; Matthias and Zaal in Davel
and Skelton (eds) Commentary on the Children’s Act ch 9; Schäfer Child Law in South Africa ch 19; Kruger
2009 (2) Speculum Juris 45–51; Zaal 2009 (2) Speculum Juris 24–27. On alternative dispute resolution in cases
relating to children in need of care and protection, see Zaal 2010 THRHR 353.
313 Ss 29(7), 47(1). The investigation takes place in terms of s 155(2). On the role of social workers in a Chil-
dren’s Court enquiry, see Gallinetti in Davel and Skelton (eds) Commentary on the Children’s Act 4-15–4-16;
Kruger 2009 (2) Speculum Juris 40–42; Nkosi 2012 Obiter 360.
314 S 151(1).
315 S 151(2).
316 S 68.
317 S 47(2)(b).
 Chapter 23: Parental responsibilities and rights 335

proceedings pending an investigation by a designated social worker into whether the child is
in need of care and protection and order the child’s removal into temporary safe care.318
The social worker must investigate the matter and report within 90 days.319 If the social
worker finds that the child is in need of care and protection, the child must be brought before
the Children’s Court.320 The Children’s Court may order that, pending decision of the matter,
the child must remain in the current temporary safe care, be transferred to another place in
temporary safe care,321 remain with the person under whose control he or she is, be put under
the control of a family member or another relative, or be placed in temporary safe care.322
If the court refers the question of whether the child is in need of care and protection to a
social worker or orders that the child be placed in temporary safe care, it may also order any
person (including the social worker) to carry out an investigation or a further investigation
that may assist the court and to furnish the court with a report and recommendations. The
court may also authorise the person to enter any premises mentioned in the court order,
either alone or in the presence of a police official, and to remove the child, investigate the
circumstances of the child, record any information and carry out any specific instruction of
324
the court.323 The court may also order that the child be placed in temporary safe care. The
best interests of the child are the determining factor in deciding whether the child should be
removed and placed in temporary safe care – the first priority being the child’s safety and
well-being.325 If the court orders the child’s removal, it must simultaneously refer the matter to
a designated social worker and instruct the social worker to ensure that the removal is placed
before the Children’s Court for review before the expiry of the next court day after the
removal, and that the child and his or her parents, guardian or care-giver are present in
326
court, unless this is impracticable.
A child may also be removed to temporary safe care by a social worker or police official
without an order of court if there are reasonable grounds for believing that the child is in
need of care and protection and needs immediate emergency protection, that the delay in
obtaining a court order authorising the child’s removal may jeopardise the child’s safety and
well-being, and that the child’s removal is the best way to secure his or her safety and

________________________

318 S 47(2)(a) and (3).

319 S 155(2). The social worker must also report the matter to the provincial Department of Social Develop-
ment: s 155(3).
320 S 155(5). If the social worker finds that the child is not in need of care and protection, he or she must
state the reasons for this finding in his or her report and submit the report to the Children’s Court for
review: s 155(4)(a).
321 Temporary safe care means care of a child in a child and youth care centre, shelter or private home or any
other place prescribed by the regulations, where the child can safely be accommodated pending a decision
or court order concerning his or her placement, but excludes a prison or police cell: s 1(1).
322 S 155(6). On the additional powers of the Children’s Court, see s 48.
323 S 151(3) read with s 50(1)–(3). On the additional powers of the Children’s Court, see s 48.
324 S 151(2). The person who removes the child in terms of the court order must inform the child’s parent,
guardian or care-giver within 24 hours if the parent, guardian or care-giver can readily be traced. The per-
son must also refer the matter to a designated social worker within 24 hours for an investigation as to
whether the child is a child in need of care and protection and report the matter to the provincial
Department of Social Development: s 151(7).
325 S 151(8). See also Rautenbach 2012 TSAR 559; Zaal 2012 THRHR 168; Zaal and Matthias 2013 Stell LR 107;
Couzens 2013 SALJ 672.
326 S 151(2A). This subsection was read-in by the Constitutional Court in C v Department of Health and Social
Development, Gauteng 2012 (4) BCLR 329 (CC), 2012 (2) SA 208 (CC), Heaton and Kruger Casebook on Fam-
ily Law case [81]. In this case, the Constitutional Court declared ss 151 and 152 of the Children’s Act
unconstitutional because they failed to provide for automatic judicial review of the removal of the child to
temporary safe care. The court ordered the reading-in of certain subsections into ss 151 and 152 to cure
their constitutional invalidity. Proposed amendments to the Children’s Act giving effect to this order are
contained in the Children’s Second Amendment Bill 14 of 2015, which was tabled in Parliament in May
2015.
336 South African Family Law

well-being.327 In these situations too, the child’s best interests are the determining factor in
deciding whether to remove the child and the first priority is the safety and well-being of the
child. In deciding whether to remove the child, the possibility of removing the alleged of-
fender from the place where the child resides must be taken into account together with all
other relevant factors.328 If the child is removed by a social worker, the social worker must
ensure that the removal is placed before the Children’s Court for review before the expiry of
the next court day after the removal, and that the child and his or her parents, guardian or
329
care-giver are present in court, unless this is impracticable. If the child is removed by a
police official, the police official must refer the matter of the removal to a social worker
before the end of the next court day after the removal. The social worker must ensure that
the removal is placed before the Children’s Court for review before the expiry of the next
court day after the referral; that the child and his or her parents, guardian or care-giver are
present in court, unless this is impracticable; and that an investigation is conducted as to
330
whether the child is a child in need of care and protection.
(ii) Finding a child to be in need of care and protection
A child is in need of care and protection in any of the following circumstances:
(1) The child has been abandoned or orphaned and is without any visible means of sup-
331
port.
________________________

327 S 152(1). If a social worker removes the child, he or she must, within 24 hours, inform the child’s parent,
guardian or care-giver of the removal if that person can readily be traced. By the next day, the social worker
must also inform the Clerk of the Children’s Court and report the matter to the provincial Department of
Social Development: s 152(2). If a police official removes the child, he or she must, within 24 hours, in-
form the child’s parent, guardian or care-giver of the removal if that person can readily be traced. He or
she must also, within 24 hours notify the provincial Department of Social Development of the removal and
the place where the child is being kept, and by the next day inform the Clerk of the Children’s Court:
s 152(3).
328 S 152(4). On removal of the alleged offender, see s 153. If the child is removed into temporary safe care and
there are reasonable grounds to believe that another child at the same place is in need of care and protec-
tion, the other child may be referred to a designated social worker for investigation. The referral may be
done by the person in whose temporary safe care the child has been placed or by the provincial head of
the Department of Social Development: s 154. On the removal of a child into temporary safe care, see fur-
ther Gallinetti 2009 (2) Speculum Juris 54 et seq.
329 S 152(2)(d). This subsection was also read-in by the Constitutional Court in C v Department of Health and
Social Development, Gauteng 2012 (4) BCLR 329 (CC), 2012 (2) SA 208 (CC).
330 S 152(3)(b) as replaced by the Constitutional Court in C v Department of Health and Social Development,
Gauteng 2012 (4) BCLR 329 (CC), 2012 (2) SA 208 (CC).
331 In SS v Presiding Officer, Children’s Court, Krugersdorp 2012 (6) SA 45 (GSJ) an orphan was voluntarily being
cared for by his aunt and uncle. The Children’s Court held that because the child was being cared for vol-
untarily by persons who did not have parental responsibilities and rights in respect of the child, the child
was not without visible means of support as envisaged by s 150(1)(a), and could not be placed in foster
care with those persons. On appeal the High Court rejected this view, finding that the Children’s Court
must conduct a two-stage test to determine whether a child is in need of care and protection in terms of
s 150(1)(a). During the first stage, the court must determine whether the child has been abandoned or
orphaned. During the second stage the court must determine whether the child is “without any visible
means of support”. In doing so, the court must look at the child’s personal financial resources, and deter-
mine whether the child can access any means of support and, if not, whether there is someone who has a
legal duty to support the child. If this stage reveals that the child is not in a position to access any means of
support, the child is in need of care and protection and may be placed in foster care. In NCM v Presiding
Officer of the Children’s Court, District of Krugersdorp [2013] 3 All SA 471 (GSJ) (also reported as NM v Presid-
ing Officer of Children’s Court, Krugersdorp 2012 (6) SA 45 (GSJ)) the question arose whether orphaned chil-
dren who were being cared for by their grandmother, who has a common-law duty to support them, could
be found to be in need of care and protection and be placed in her foster care. The court rejected the
view that children who were being cared for by a person who has a common-law duty of support towards
them may not be placed in foster care with that person while children who were being cared for by a per-
son who does not have such a duty of support may be placed in foster care with that person. The court
held that making such a distinction would cause untold hardship for children whose caregivers have a duty
of support; not have a rational basis; resulting in discrimination between caregivers who have a duty of
continued
 Chapter 23: Parental responsibilities and rights 337

(2) The child displays behaviour which cannot be controlled by his or her parent or care-
giver.
(3) The child lives or works on the streets, or begs for a living.
(4) The child is addicted to a dependence-producing substance and is without support to
obtain treatment for such dependency.
(5) The child has been exploited or lives in circumstances which expose him or her to
exploitation.
(6) The child lives in or is exposed to circumstances which may seriously harm his or her
physical, mental or social well-being.
(7) The child may be at risk if returned to the care of his or her parent, guardian or care-
giver because there is reason to believe that the child will live in or be exposed to cir-
cumstances which may seriously harm his or her physical, mental or social well-being.
(8) The child is in a state of physical or mental neglect.
(9) The child is being maltreated, abused, deliberately neglected or degraded by a parent,
care-giver or family member, someone who has parental responsibility over the child, or
someone under whose control the child is.332
A child may also be in need of care and protection if he or she is a victim of child labour or is
in a child-headed household.333 In these circumstances, the matter must be referred for inves-
tigation by a social worker to determine whether the child is indeed in need of care and pro-
tection.334
Before deciding any matter or issue in a matter relating to whether the child is in need of
care and protection, the court may order any inquiry or further investigation which may assist
it in deciding the matter.335 Furthermore, in keeping with the injunction in section 6(4) of the
Act that an approach which is conducive to conciliation and problem-solving must be adopted
in any matter concerning a child and that a confrontational approach must be avoided, the
court is empowered to order a lay forum hearing, pre-hearing conference or family group
conference.336 If a settlement is reached and accepted by all parties, the clerk of the court

________________________

support towards their prospective foster children and those who do not; not be in the children’s best in-
terests; and violate the children’s right to equal protection under the law. The High Court further sup-
ported and applied the finding in SS that the interpretation of s 150(1)(a) involves a two-stage enquiry. As
the children in the present case were indeed orphaned, the court turned to the second stage of the en-
quiry, and held that the children did not have the means to support themselves. The next question was
whether the children were in a position to enforce their claim. The court held that the mere fact that a
duty of support exists is not enough – a further enquiry into whether the caregiver has the financial means
to support the children is needed. The court found that this was not the case and ordered that the chil-
dren be placed in the foster care of their grandmother. In keeping with the interpretation of s 150(1)(a)
in these cases, the Children’s Amendment Bill of 2015 proposes to amend the definition of “child in need
of care” as follows: “A child is in need of care and protection if such a child has been abandoned or or-
phaned and does not ostensibly have the ability to support himself or herself.” See further Zaal 2013 Obiter
590.
332 S 150(1).
333 A child-headed household is a household in which the parent, guardian or care-giver is terminally ill, has
died or has abandoned the children in the household, no adult family member is available to provide care
for the children, and a child over the age of 16 years has assumed the role of care-giver in respect of the
children: s 137(1). On the recognition of child-headed households and the consequences of such recogni-
tion, see s 137; Barratt (ed) Persons and the Family 166–167; Kassan and Mahery in Boezaart (ed) Child Law
in South Africa 196–200; Schäfer Child Law in South Africa ch 16; Bonthuys 2010 International Journal of Law
in Context 45; Kruger 2014 Stell LR 126; Sloth-Nielsen and Van Heerden 2014 International Journal of Law,
Policy and the Family 111–113. For a detailed discussion of child-headed households, see Phillips 1 et seq.
334 S 150(2).
335 Ss 50(1) and 62(1).
336 On pre-hearing conferences, family group conferences and other lay forums, see ss 49(1) and (2), 69, 70
and 71; Gallinetti in Davel and Skelton (eds) Commentary on the Children’s Act 4-18, 4-36–4-38; Leppan in
continued
338 South African Family Law

must submit the settlement to the court.337 Depending on what is in the child’s best interests,
the court may confirm the settlement and make it an order of court, refer it back to the par-
ties for reconsideration of any specific issues, or reject it.338
(iii) Child participation and legal representation
The child must be allowed to express a view and preference if he or she is able to participate
in the proceedings and chooses to do so. The court must take the child’s age, maturity and
stage of development and any special needs the child may have into account in deciding
whether the child is able to participate.339 If the child is being cross-examined or questioned,
the presiding officer must intervene if doing so is in the child’s best interests.340 Furthermore,
if the court finds that this would be in the child’s best interests, the child must be questioned
through an intermediary or any matter or issue in the matter must be disposed of separately
in the absence of the child.341
Any party to the matter is entitled to appoint a legal practitioner of his or her choice at his
or her own expense.342 If a child does not have a legal representative, the court must refer the
matter to Legal Aid South Africa (formerly the Legal Aid Board) if it would be in the child’s
best interests to have legal representation.343
(iv) The orders the Children’s Court may make in respect of a child in need of care and protection344
If the court finds that the child is in need of care and protection, it may make any order
which is in the best interests of the child.345 Such order may include, but is not limited to, the
following:346
(1) An alternative care order, including an order placing the child in temporary safe care or
347
the care of a court-designated foster parent or child and youth care centre, or placing

________________________

Sloth-Nielsen and Du Toit (eds) Trials and Tribulations, Trends and Triumphs 169–173; Louw and Spijker
2007 Obiter 101; Kruger 2009 (2) Speculum Juris 44–45; Zaal 2010 THRHR 353.
337 S 72(1).
338 S 72(2).
339 S 61(1)(a); see also s 10. If the court finds that the child is unable to participate or is unwilling to express a
view or preference, it must record the reasons for such finding: s 61(1)(b).
340 S 61(1)(c). On intermediaries for the child, see Gallinetti in Davel and Skelton (eds) Commentary on the
Children’s Act 4-28–4-31.
341 S 61(2) and (3).
342 S 54.
343 S 55(1); see also s 28(1)(h) of the Constitution, which is discussed in ch 22 above.
344 On the power of the Children’s Court to monitor compliance with its orders or the circumstances of a
child following an order, see s 65.
345 S 156(1). On Islamic kafalah as an alternative care option, see Assim and Sloth-Nielsen 2014 African Human
Rights Law Journal 322.
346 S 155(7) read with ss 46 and 156. On the additional powers of the Children’s Court, see s 48. An order
made in terms of s 156 generally lapses after two years. Before the order expires, it may be extended by the
Children’s Court for a period of not more than two years at a time: s 159(1).
347 If an application for extension of an order in terms of s 156 is not granted before the order expires, the
order lapses and the foster parent loses his or her entitlement to receive a foster child grant for the child.
In terms of the Child Care Act 74 of 1983 (which was repealed by the Children’s Act), the procedure for
the renewal of foster care orders was purely administrative and did not require the intervention of the
court. As a result of the new procedure in the Children’s Act, the shortage of social workers, and the in-
creased case load of Children’s Courts, many foster care orders expired. Despite this, the South African
Social Security Agency continued to pay foster child grants, but could not do so indefinitely. In May 2011
the Centre for Child Law obtained an order from the High Court which deemed the lapsed foster care or-
ders not to have expired and extended all foster care orders which had expired since 1 April 2009 by two
years. It was further ordered that the administrative procedure for the renewal of foster care provided for
by the Child Care Act had to be used to process renewals until the end of 2014 or until the Children’s Act
was amended, whichever occurred first. The court order was published in GN 585 GG 34472 of 19 July
2011. As the Children’s Act was not amended before the end of 2014, the old procedure was used until the
end of 2014.
 Chapter 23: Parental responsibilities and rights 339

the child in a court-designated facility for the care of children with disabilities or chronic
illnesses.348
(2) An order placing the child in a child-headed household in the care of the child head-
ing the household, under the supervision of a court-designated adult.
(3) An adoption order, including an inter-country adoption order.
(4) A partial care order instructing the child’s parent or care-giver to make arrangements
with a partial care facility to take care of the child during specific hours of the day or
night or for a specific period.349
(5) A shared care order instructing different care-givers or child and youth care centres to
take responsibility for the child’s care at different times or for different periods.
(6) A supervision order placing the child or the child’s parent or care-giver, or both the
child and the parent or care-giver under the supervision of a social worker or another
court-designated person.
(7) An order subjecting the child, parent, care-giver, or another person holding parental
responsibilities and rights to early intervention services or a family preservation pro-
gramme, or both early intervention services and a family preservation programme.350
(8) A child protection order, which includes an order
(a) that the child must remain in, be released from, or be returned to the care of a
specific person, subject to court-imposed conditions;
(b) giving consent to medical treatment of or an operation on the child;
(c) instructing a parent or care-giver to undergo professional counselling or to parti-
cipate in mediation, a family group conference, or another appropriate problem-
solving forum;
(d) instructing the child or another person to participate in a professional assess-
351
ment;
(e) instructing a hospital to retain the child, pending further inquiry, if there is a
reasonable suspicion that the child has been abused or deliberately neglected;
(f) instructing a person to undergo a specified skills development, training, treatment
or rehabilitation programme if this is necessary for the child’s protection or well-
being;
(g) instructing a person who has failed to fulfil a statutory duty towards the child to
appear before the court and to give reasons for the failure;
(h) ordering a person’s removal from the child’s home;
(i) limiting a person’s contact with the child, prohibiting him or her from contacting
the child, or allowing him or her to contact the child on court-specified conditions;
or
________________________

348 On foster care and child and youth care centres, see chs 12 and 13 of the Act; Gallinetti and Loffell in
Davel and Skelton (eds) Commentary on the Children’s Act ch 12; Skelton in Davel and Skelton (eds) Commen-
tary on the Children’s Act ch 13. A Children’s Court may issue an order placing a child in the care of a child
and youth care centre only if another option is not appropriate: s 158(1). Generally on alternative care,
see Zaal and Matthias in Davel and Skelton (eds) Commentary on the Children’s Act ch 11.
349 Partial care is provided when someone takes care of more than six children on behalf of the children’s
parents or care-givers during specific hours of the day or night, or for a temporary period, in terms of a
private arrangement with the parents or care-givers, regardless of whether or not the person receives a re-
ward for doing so: s 76. However, partial care does not refer to care by a school as part of tuition, training
and other school activities, taking care of a boarder in a school hostel or another school residential facility,
or care by a hospital or other medical facility as part of treatment provided to the child: s 76(a)–(c). On par-
tial care, see further Mahery in Davel and Skelton (eds) Commentary on the Children’s Act ch 5.
350 On early intervention and family preservation programmes, see ch 21 above.
351 On the question whether children can refuse assessment they regard as unduly invasive, see Matthias and
Zaal 2011 SAJHR 381.
340 South African Family Law

(j) instructing a person to make contributions to a child’s maintenance in terms of a

contribution order.
(9) An order confirming that the person under whose control the child is may retain control.
(10) An order that the child be returned to the person in whose care he or she was before
being placed in temporary safe care.
(11) An order that the child must receive appropriate treatment or attendance, if need be at
state expense, if he or she is in need of medical, psychological or other treatment or at-
tendance.
(12) An order that the child be admitted as an inpatient or outpatient to an appropriate
facility if he or she is in need of treatment for addiction to a dependence-producing
substance.
(13) An order interdicting a person from maltreating, abusing, neglecting or degrading the
child or having any contact with the child if the child has been or is being maltreated,
abused, neglected or degraded by that person, the relationship between the child and
that person is detrimental to the child’s well-being or safety, or the child is exposed to a
substantial risk of imminent harm.
If the court finds that the child is not in need of care and protection, it may nevertheless issue
any of the above-mentioned orders, except a placement order.352
Before the court makes an order for the removal of the child from the care of his or her
parent or care-giver, it must obtain and consider a report by a designated social worker on the
conditions of the child’s life and consider the best way of securing stability in the child’s life.
It must in particular consider whether stability could be secured in one of the following ways:353
(1) Leaving the child in the care of the parent or care-giver under the supervision of a des-
ignated social worker. The child’s safety and well-being must be the first priority.
(2) Placing the child in alternative care for a limited period to allow for the reunification of
the child and the parent or care-giver with the assistance of a designated social worker.354
(3) Placing the child in alternative care with or without terminating the parental responsibil-
ities and rights of a parent or care-giver.
(4) Making the child available for adoption. A very young child who is an orphan or has
been abandoned by his or her parents must be made available for adoption unless this is
not in his or her best interests.355
(5) Issuing instructions as to the evaluation of progress made with the implementation of a
permanency plan at specified intervals.
(e) International child abduction
(i) General
Prior to 1 April 2010, abduction of a child across national borders was governed by the Hague
Convention on the Civil Aspects of International Child Abduction Act 72 of 1996.356 Now,
chapter 17 and schedule 2 of the Children’s Act govern the position and render the Hague
Convention on the Civil Aspects of International Child Abduction part of our national law.357
________________________

352 S 156(4).
353 S 157(1)(b).
354 On the duties of the social worker in respect of the reunification of the child with his or her family, see
s 157(2).
355 S 157(3).
356 The Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996 was repealed
by schedule 4 of the Children’s Act on 1 April 2010.
357 The cases concerning specific articles of the Convention which were decided under the Hague Conven-
tion on the Civil Aspects of International Child Abduction Act remain relevant, because the Convention
remains part of our domestic law: s 275 of the Children’s Act. On the provisions of the Children’s Act
regarding child abduction, see further Boezaart in Heaton (ed) Law of Divorce and Dissolution of Life Partner-
continued
 Chapter 23: Parental responsibilities and rights 341

The provisions regarding international child abduction are classified as a mechanism that
authorises interference with parental responsibilities and rights because they permit the court
to order the child’s return to another country regardless of the wishes of the parent who has
the child in his or her care.
(ii) Wrongful removal or retention of a child
By virtue of its obligations in terms of the Convention, South Africa must take all appropriate
measures to secure the prompt return of children who have been wrongfully removed to, or
are wrongfully retained in South Africa, and ensure that “rights of custody” and “rights of
access” under the law of another contracting state are effectively respected in South Africa.358
“Rights of custody” may arise by operation of the law, as a result of a decision by a court or
administrative body, or by virtue of a legally recognised agreement, and include rights relat-
ing to the care of the child’s person.359 The Convention specifically states that the right to
determine the child’s place of residence is covered by the term.360 In keeping with the
approach adopted in foreign jurisdictions, our courts have held that rights of custody encom-
pass a parent’s right to withhold consent to the child’s removal from the contracting state in
which the child habitually resides.361 “Rights of access” include the right to take a child to a
place other than his or her habitual residence for a limited period of time.362
A child’s removal or retention is wrongful in the following circumstances:363
(1) if it is in breach of rights of custody attributed to a person, institution or another body,
either jointly or alone, under the law of the contracting state in which the child was
habitually resident immediately before the removal or retention,364 and
(2) at the time of the removal or retention, those rights were actually exercised, either jointly
or alone, or would have been so exercised but for the removal or retention.

________________________

ships 222–227; Du Toit in Boezaart (ed) Child Law in South Africa ch 15; Schäfer Child Law in South Africa ch
24; Skelton and Carnelley (eds) Family Law ch 16; Woodrow and Du Toit in Davel and Skelton (eds) Com-
mentary on the Children’s Act ch 17.
358 Arts 1 and 2.
359 Arts 3 and 5(a).
360 Art 5(a). Rights of custody are not limited to the care of the child’s person and the right to determine the
child’s place of residence. Nor is it required that the person, institution or body must have both the care
of the child’s person and the right to determine the child’s place of residence: Chief Family Advocate v G
2003 (2) SA 599 (W).
361 See eg LS v AT 2001 (2) BCLR 152 (CC) (also reported as Sonderup v Tondelli 2001 (1) SA 1171 (CC)); see
also Kirsh v Kirsh [1999] 2 All SA 193 (C) (also reported as K v K 1999 (4) SA 691 (C)); Chief Family Advo-
cate v G 2003 (2) SA 599 (W); KG v CB 2012 (4) SA 136 (SCA). When considering foreign law on the Con-
vention, it must be borne in mind that the Constitutional Court has warned that “[t]he absence of a
provision such as section 28(2) of the Constitution in other jurisdictions might well require special care to
be taken in applying dicta of foreign courts where the provisions of the Convention might have been ap-
plied in a narrow and mechanical fashion”: LS v AT par 33.
362 Art 5(b).
363 Art 3. The applicant need not prove on a balance of probabilities that the rights of custody were actually
exercised or would have been exercised but for the removal or retention. Prima facie proof suffices: Chief
Family Advocate v G 2003 (2) SA 599 (W). The court may ask the applicant to obtain a decision or deter-
mination from the authorities of the requesting state that the removal or retention was wrongful. The cen-
tral authorities of the requesting and requested states must assist the applicant as far as practicable in
obtaining such decision or determination: art 15.
364 It is important to note that it is the law of the contracting state in which the child was habitually resident
immediately before the removal or retention (ie, the law of the requesting state) that determines whether
a person, institution or body has rights of custody: art 3(a). In ascertaining whether there has been a wrong-
ful removal or retention, the judicial or administrative authorities of the requested state may take notice of
the law and judicial or administrative decisions of the state of the habitual residence of the child, without
the need to adhere to the specific procedures for the proof of foreign law or the recognition of foreign de-
cisions which would otherwise apply: art 14. The High Court may request the chief Family Advocate to
provide a report on the domestic circumstances of the child prior to the alleged abduction in order to as-
certain whether there has been a wrongful removal or retention: s 278(1); art 15.
342 South African Family Law

If care proceedings are pending in a South African court at the time of a child’s removal from
South Africa, the court qualifies as an institution or body to which rights of custody are
attributed. The court usually becomes such an institution or body when service takes place in
proceedings before it. Therefore, the wronged party may approach the court for a declaratory
order on the legal position, despite not yet having launched an application in terms of the
Convention.365
The Convention only applies to a child below the age of 16 years who was habitually resi-
dent in a contracting state (that is, a country or part of a country that is a state party to the
Convention) immediately before the breach of rights of custody or access occurred.366 Habit-
ual residence implies a stable territorial link which may be created by the length of the child’s
stay at a particular place or through evidence of a particularly close tie between the child and
the place.367 In the case of a young child, it is usually impossible to distinguish between the
child’s habitual residence and the habitual residence of the person(s) in whose care the child
is.368 If the child’s parents agree on their habitual residence, their habitual residence is usually
the child’s too. In the absence of an express agreement, the shared or settled intention of the
parents may indicate where the child’s habitual residence is. If the parents have different
intentions, the child’s habitual residence is determined by considering his or her factual
connection to and cultural, social and linguistic knowledge of the contracting state.369
(iii) The duties of the central authority
In terms of the Convention, any person, institution or body claiming that a child has been
wrongfully removed or retained may apply to the central authority of the contracting state in
which the child habitually resides or to the central authority of another contracting state for
assistance in securing the child’s return.370 In South Africa, the chief Family Advocate is the
central authority.371 Regionally, the Family Advocate appointed for each division of the High
Court fulfils the duties of the central authority.372
________________________

365 S v H 2007 (3) SA 330 (C).

366 Art 4. A full record of the states between which the Convention operates can be found on the website of
the Permanent Bureau of the Hague Conference on Private International Law at http://www.hcch.net/
index_en.php?act=conventions.statusprint&cid=24.
367 Senior Family Advocate, Cape Town v Houtman 2004 (6) SA 274 (C); Central Authority v MR (LS Intervening)
[2011] 2 All SA 438 (GNP), 2011 (2) SA 428 (GNP). In Central Authority for the Republic of South Africa v ER
[2014] JOL 31502 (GNP) the court found that this stable territorial link was not established by a failed asy-
lum seeker.
368 Senior Family Advocate, Cape Town v Houtman 2004 (6) SA 274 (C); Central Authority (South Africa) v A 2007
(5) SA 501 (W); Central Authority, RSA v OCI [2010] JOL 25947 (GSJ).
369 Ibid.
370 Art 8. The person, institution or body is not compelled to use the services of the central authority. The court
may be approached directly: art 29. If a child has been wrongfully removed from South Africa or wrongful-
ly retained outside South Africa, the South African court is not the appropriate forum to approach, as it
does not have jurisdiction to order the child’s return. Instead, the court which has jurisdiction in the area
where the child resides must be approached for an order compelling the child’s return to South Africa. If
a South African court made an order in such circumstances, the order could not be enforced by the South
African court and would therefore be ineffective: B v S [2006] 4 All SA 515 (SCA), 2006 (5) SA 540 (SCA).
See also Di Bona v Di Bona 1993 (2) SA 682 (C), where the arrest and committal of the respondent to pris-
on was sought. The court found that it did not have jurisdiction in this regard, as the doctrine of the con-
tinuance of the court’s jurisdiction did not apply to an application for arrest or committal for contempt
where the respondent was no longer in South Africa. A contrasting decision was made in JC v DC 2014 (2)
SA 138 (WCC).
371 S 276(1)(a) and (2).
372 The chief Family Advocate may delegate or assign any power or duty he or she has in terms of the Conven-
tion to any Family Advocate appointed under the Mediation in Certain Divorce Matters Act 24 of 1987:
s 277(1) of the Children’s Act. On the appropriateness of the chief Family Advocate’s being the central
authority, and the problems Family Advocates experience in meeting their obligations under the Conven-
tion, see Brown v Abrahams [2004] 1 All SA 401 (C), 2004 (4) BCLR 349 (C); Van Heerden in Van Heerden
et al (eds) Boberg’s Law of Persons and the Family 574–575 fn 241; Nicholson 1999 CILSA 240, 1999 De Jure
continued
 Chapter 23: Parental responsibilities and rights 343

By virtue of the obligations the Convention imposes on the central authority, the Family
Advocate must take all appropriate measures to discover the whereabouts and secure the vol-
untary return of a child who has been wrongfully removed to or is wrongfully retained in
South Africa, or to achieve the amicable resolution of the issues regarding rights of custody or
access.373 If the attempt to secure the child’s voluntary return or to resolve the issues fails, the
Family Advocate must initiate or facilitate the institution of court proceedings374 to obtain the
child’s return.375 Once the child has been safely returned, the Family Advocate’s obligations
come to an end (unless the Family Advocate is requested to make arrangements for organis-
ing or securing the effective exercise of rights of access).376 At this point, the provisions of the
Convention cease to apply and domestic law determines whether, and what, legal steps may
be taken in respect of subsequent issues regarding the child. Thus, if South African law is the
domestic law, the parent (or another individual or body with locus standi) must approach the
court if any subsequent issue regarding guardianship, care or contact arises.377
(iv) Court proceedings for the child’s return
The requirement of expeditiousness
If court proceedings for the child’s return are instituted, the matter must be dealt with expe-
ditiously.378 In South Africa, the matter may be expedited by giving it preference on the roll,
making a special court available, or treating it as an urgent matter which is dealt with out of
turn if necessary.379 Because of the requirement of expeditiousness, oral evidence is heard
only in exceptional cases.380
Mandatory return
The court in the contracting state to which the child has been wrongfully removed or in
which he or she is wrongfully retained is normally compelled to order the child’s immediate

________________________

257; Kassan 2003 De Jure 175; Nicholson 2004 De Jure 130. For judicial censure of the manner in which the
duties as central authority were fulfilled in particular cases, see Central Authority v B 2009 (1) SA 624 (W);
Central Authority of the Republic of South Africa v LG 2011 (2) SA 386 (GNP); Central Authority for the Republic of
South Africa v ER [2014] JOL 31502 (GNP).
373 Arts 7(a) and (c) and 10.
374 Prior to 1 April 2010, the High Court was the only court which had jurisdiction to decide matters relating
to international child abduction. S 45(3)(d) and (e) of the Children’s Act extends jurisdiction in these
matters to the Divorce Courts (now Regional Courts). The child must have legal representation in all ap-
plications in terms of the Convention: s 279. This rule is subject to s 55 which governs legal representation
in proceedings in the Children’s Court. In the case of very young children, the role of the legal repre-
sentative is similar to that of a curator ad litem¸ whereas in the case of older children the legal representative
takes instructions from the child and acts in accordance with those instructions to represent the views of
the child: B v G 2012 (2) SA 329 (GSJ).
375 The Family Advocate’s duties also include taking provisional steps or causing provisional steps to be taken
to prevent further harm to the child or further prejudice to interested parties; exchanging information
regarding the child’s social background if such exchange is desirable; making the necessary and appropri-
ate administrative arrangements for securing the child’s safe return; and making arrangements for organ-
ising or securing the effective exercise of rights of access: art 7. Although the Convention makes no men-
tion of a liaison judge, direct international judicial communication and the development of a network of
liaison judges were considered at a meeting of a special commission of the Hague Conference on Private
International Law in March 2001. Contracting states were encouraged to consider identifying a judge or
judges to facilitate communications at an international level and were requested actively to encourage
international judicial co-operation regarding the Convention. On the role, functions and qualities of a liaison
judge, see Griessel in Sloth-Nielsen and Du Toit (eds) Trials and Tribulations, Trends and Triumphs 251–255.
376 Brown v Abrahams [2004] 1 All SA 401 (C), 2004 (4) BCLR 349 (C).
377 Ibid.
378 Art 11.
379 Chief Family Advocate v G 2003 (2) SA 599 (W).
380 Ibid; Pennello v Pennello [2004] 1 All SA 32 (SCA), 2004 (3) BCLR 243 (SCA) (also reported as Pennello v
Pennello (Chief Family Advocate as Amicus Curiae) 2004 (3) SA 117 (SCA)).
344 South African Family Law

return. The court must order the return of the child, not the return of the abducting par-
ent.381 Prior to the making of an order for the return of a child, the court may order interim
protective relief for the child, the applicant or the defendant.382
The reason why the court is normally obliged to order the child’s immediate return is that
the Convention is based on the premise that child abduction is against a child’s interests and
that, in the vast majority of cases, it is in the child’s best interests to ensure his or her swift
return to the contracting state of his or her habitual residence so that the court there can
decide on the merits of the custody or access dispute.383
If the child’s removal or retention occurred less than a year before the commencement of
the court proceedings, the court must order the child’s immediate return. Even if the remov-
al or retention occurred more than a year before the commencement of the proceedings, the
court must order the child’s return unless it is demonstrated that the child is now settled in
his or her new environment.384
(v) Exceptions/defences to the child’s mandatory return
The court may refuse an application for the child’s return if the party resisting the return
proves any of the circumstances that are discussed below.385

Consent or acquiescence
The court may refuse an application for the child’s return if the person, institution or body
who cared for the child was not actually exercising custody rights at the time of the child’s
386
removal or retention, or consented to, or subsequently acquiesced in, the child’s removal or
retention. Although failure expeditiously to seek the child’s return suggests acquiescence,388
387

acquiescence must nevertheless be clear and unqualified.389 In Smith v Smith 390 the Supreme
Court of Appeal held that acquiescence means that the wronged party (who, in the case of a
________________________

381 Central Authority v H 2008 (1) SA 49 (SCA).

382 S 278(2).
383 See eg Kirsh v Kirsh [1999] 2 All SA 193 (C) (also reported as K v K 1999 (4) SA 691 (C)); LS v AT 2001 (2)
BCLR 152 (CC) (also reported as Sonderup v Tondelli 2001 (1) SA 1171 (CC)); Smith v Smith [2001] 3 All SA
146 (SCA), 2001 (3) SA 845 (SCA); Chief Family Advocate v G 2003 (2) SA 599 (W); Pennello v Pennello
[2004] 1 All SA 32 (SCA), 2004 (3) BCLR 243 (SCA) (also reported as Pennello v Pennello (Chief Family Ad-
vocate as Amicus Curiae) 2004 (3) SA 117 (SCA)); KG v CB 2012 (4) SA 136 (SCA). See also Chürr 2010
THRHR 144.
384 Art 12. For an example of denial of the child’s return on the ground that the child had become settled in
his or her new environment, see Central Authority v B 2009 (1) SA 624 (W).
385 The party who seeks the child’s return must prove the child’s habitual residence and that the removal or
retention was wrongful. Once this has been proved, the onus of proving one of the defences to the child’s
mandatory return rests upon the party resisting the child’s return. The latter onus must be discharged on
a balance of probabilities: Smith v Smith [2001] 3 All SA 146 (SCA), 2001 (3) SA 845 (SCA); Pennello v Pen-
nello [2004] 1 All SA 32 (SCA), 2004 (3) BCLR 243 (SCA) (also reported as Pennello v Pennello (Chief Family
Advocate as Amicus Curiae) 2004 (3) SA 117 (SCA)); Senior Family Advocate, Cape Town v Houtman 2004 (6)
SA 274 (C); Central Authority v H 2008 (1) SA 49 (SCA); Family Advocate, Cape Town v EM 2009 (5) SA 420
(C). The mere fact that a South African court has made a care order in respect of the child, or that there
is a foreign care order which may be recognised in South Africa, does not permit a court in this country to
refuse to order the child’s return to another contracting state. The South African court may, however, take
into account the reasons why the particular care order was made: art 17.
386 For an example of denial of the child’s return on the ground that the child’s father had consented to the
removal of the child, see Central Authority of the Republic of South Africa v LG 2011(2) SA 386 (GNP).
387 Art 13(a). In considering whether consent or acquiescence occurred, the court must take the information
regarding the child’s social background provided by the central authority of the requesting state into ac-
count: art 13.
388 Smith v Smith [2001] 3 All SA 146 (SCA), 2001 (3) SA 845 (SCA); Senior Family Advocate, Cape Town v Hout-
man 2004 (6) SA 274 (C); Central Authority (South Africa) v A 2007 (5) SA 501 (W).
389 Central Authority v H 2008 (1) SA 49 (SCA); Central Authority v B 2009 (1) SA 624 (W); Family Advocate, Cape
Town v EM 2009 (5) SA 420 (C).
390 [2001] 3 All SA 146 (SCA), 2001 (3) SA 845 (SCA).
 Chapter 23: Parental responsibilities and rights 345

parent, is often called the left-behind parent) must have made an informed acceptance of the
infringement of his or her rights. He or she need not have had full knowledge of the precise
nature of those rights and every detail of the transgressing party’s conduct, but he or she must
at least have known that the child’s removal or retention was unlawful under the Convention
and that he or she had a remedy. Once the wronged party has acquiesced, a subsequent
change of mind is irrelevant.391
A court-ordered return would expose the child to a grave risk
The court may refuse to order the child’s return if there is a grave risk that the child would be
exposed to physical or psychological harm or otherwise be placed in an intolerable situa-
tion.392 In Pennello v Pennello 393 the Supreme Court of Appeal held that when considering this
defence, the court must distinguish between its role under the Convention and its role as a
court that determines matters of care and contact, and not convert the Convention proceed-
ings into care proceedings that are decided on the basis of which care award would serve the
child’s best interests.394 The focus must be the child and the risk of harm to which an order
for the child’s return may expose him or her. The risk to the child must be evaluated on the
basis that the abducting parent will take all reasonable steps to protect himself or herself and
the child. Thus it is reasonable to expect the abducting parent to make “all appropriate use”
of the welfare and judicial machinery which may be available for his or her protection and that
of the child in the requesting state. The court also held that the conduct of the abducting
parent in creating a situation which may cause problems for the child may, in appropriate
cases, be taken into account.395 However, such conduct is merely one of the many factors that
are relevant in determining the existence and gravity of the risk of harm to the child. With
regard to considering the child’s age, the court specifically held that “there is no basis to
differentiate in principle on the basis of age or to be swayed by some kind of ‘tender years’
principle in the application of the Convention”.396 The court further doubted whether a court
should speculate on the possible eventual outcome of the custody or access dispute and take
that possible outcome into account in deciding whether the child should be returned.
In LS v AT 397 the Constitutional Court held that the words “otherwise place the child in an
intolerable situation” indicate that the harm must be of a serious nature. It further stated that
when there is an established pattern of domestic violence, even if it is not directed at the
________________________

391 Oddly, in finding that the left-behind parent had acquiesced in the present case, the court inter alia relied
on the children’s youth and the possible outcome of the adjudication of the care dispute between the par-
ents. In respect of the children’s ages, the court stated that although age “is not necessarily decisive, it
could well be a weighty factor when considering the exceptions under article 13(a) and for that matter ar-
ticle 20”: par 20. A child’s age could clearly be relevant with regard to whether the child’s return should be
refused on the ground of South Africa’s human-rights principles (art 20), and the outcome of the dispute
might possibly be relevant in this context too, but it is unclear how either the child’s age or the possible
eventual outcome of the care dispute could have any bearing on the factual question of whether or not the
child’s parent consented to, or acquiesced in the child’s removal or retention. See further Pennello v Pen-
nello [2004] 1 All SA 32 (SCA), 2004 (3) BCLR 243 (SCA) (also reported as Pennello v Pennello (Chief Family
Advocate as Amicus Curiae) 2004 (3) SA 117 (SCA)) in which the Supreme Court of Appeal rejected the
principle of differentiating on the basis of age or the application of “some kind of ‘tender years’ princi-
ple”, and expressed doubts about speculating on the possible outcome of the custody dispute: see below in
this chapter.
392 Art 13(b). Art 13 specifically provides that the court must take the information regarding the child’s social
background provided by the central authority of the requesting state into account in deciding on this de-
fence. See in general Weideman and Robinson 2011 Stell LR 71; Nicholson 2014 SALJ 756.
393 [2004] 1 All SA 32 (SCA), 2004 (3) BCLR 243 (SCA) (also reported as Pennello v Pennello (Chief Family
Advocate as Amicus Curiae) 2004 (3) SA 117 (SCA)), Heaton and Kruger Casebook on Family Law case [82].
394 See also LS v AT 2001 (2) BCLR 152 (CC) (also reported as Sonderup v Tondelli 2001 (1) SA 1171 (CC));
Senior Family Advocate, Cape Town v Houtman 2004 (6) SA 274 (C).
395 See also Central Authority v H 2008 (1) SA 49 (SCA).
396 Par 52 (italics in the original).
397 2001 (2) BCLR 152 (CC) (also reported as Sonderup v Tondelli 2001 (1) SA 1171 (CC)), Heaton and
Kruger Casebook on Family Law case [84].
346 South African Family Law

child, the child’s return may very well place the child at grave risk. In this particular case,
however, the Constitutional Court found that although the child’s mother had inter alia been
assaulted by the child’s father on at least one occasion and had twice obtained protection
orders against him, there was insufficient evidence that there would be a grave risk for the
child should she be returned.398 In contrast, the High Court in Family Advocate v B 399 refused to
order the return of a child whose father had a history of committing domestic violence against
the child and his mother. In addition, the child was opposed to returning to the requesting
state, which was England. On the evidence, the court found that the domestic violence the
father had perpetrated was so serious that the child’s mother had had to leave the parties’
home and an English court had limited the father’s contact with the child. The child’s curator
ad litem and the experts who submitted reports to the South African court all agreed that the
child should not be returned to England. The court also took the boy’s evidence and views
into account and found that although he was only seven years old he was mature for his age.
The court concluded that the child would be placed in an intolerable situation if his return
were ordered, and that he was sufficiently mature for the court to take his opposition to
returning to England into account.
400
In KG v CB the Supreme Court of Appeal was also tasked with considering the defence
that there was a grave risk that the child would be exposed to harm or otherwise be placed in
an intolerable situation. In this case a five-year-old girl born of unmarried parents had been
placed in the care of a local authority in England. Without the knowledge and consent of the
child’s father or the local authority, her mother brought her to South Africa. An application
for the child’s return was made in South Africa. When the High Court ordered the child’s
return to England, the child’s mother appealed to the Supreme Court of Appeal. The Su-
preme Court of Appeal approved of the finding of the United Kingdom Supreme Court in Re
401
E (Children) (Wrongful Removal: Exceptions to Return) that the defence need not be narrowly
402
construed as it is, “[b]y its very terms . . . of restricted application”. One of the reasons for
this restricted application is that the risk to the child “must have reached such a standard of
403
seriousness as to be classified as ‘grave’”. Although the words “physical or psychological
harm” are not qualified, they are coloured by the phrase “or otherwise” placed in an intolera-
404
ble situation. A situation is intolerable if the particular child in the particular circumstances
should not be expected to tolerate it. Although having to cope with a certain amount of
“rough and tumble, discomfort and distress” is part of growing up, there are some things that
405
a child cannot reasonably be expected to tolerate. The Supreme Court of Appeal found
that the child’s mother had not shown that the child’s return would expose the child to the
type of risk envisaged by the Convention or place her in an intolerable situation, and dis-
missed the appeal. This decision makes it clear that the risk to the child must be evaluated
subjectively by considering the position of the particular child in the particular circumstances,
whereas the objective concept of reasonableness must be used to ascertain whether the child
406
should be expected to tolerate the situation.
The child objects to being returned
The court may refuse to order the child’s return if the child objects to being returned and has
attained an age and degree of maturity at which it is appropriate to take his or her views into

________________________

398 See also Family Advocate Port Elizabeth v Hide [2007] 3 All SA 248 (SE).
399 [2007] 1 All SA 602 (SE).
400 [2012] 2 All SA 366 (SCA), 2012 (4) SA 136 (SCA), Heaton and Kruger Casebook on Family Law case [83].
401 [2011] 4 All ER 517 (SC).
402 Re E (Children) (Wrongful Removal: Exceptions to Return) [2011] 4 All ER 517 (SC), quoted in KG v CB [2012]
2 All SA 366 (SCA), 2012 (4) SA 136 (SCA) par 50.
403 Ibid.
404 Ibid.
405 Ibid.
406 Heaton 2012 Annual Survey of South African Law 333.
 Chapter 23: Parental responsibilities and rights 347

account.407 The court must give the child the opportunity to object to being returned and
must give due weight to the objection, taking into account the child’s age and maturity.408
409
In Central Authority of the Republic of South Africa v B the South Gauteng High Court, as it
then was, provided welcome guidance on the factors to be taken into account by the court
when it considers this defence and on the approach it should adopt in weighing these factors.
In this case, a mother sought the immediate return to Australia of her thirteen-year-old son.
The child objected to being returned to his mother in Australia after having spent a holiday
410
with his father in Johannesburg. With reference to two Scottish cases, the court held that
the following factors must be considered: the fact of the child’s objection; the nature and
basis of the objection; the actual age and degree of maturity of the child; the strength of the
objection; whether the objection was formed independently of parental influence; the welfare
or best interests of the child; whether the child understands the purpose of an order compel-
ling his or her return; and the general policy of the Hague Convention to secure the prompt
return of children who were wrongfully removed to or retained in a contracting state. Meyer J
found that the child in this case was confident, his views were firm and cogent, he was of
above-average intelligence, his views were free from parental influence, and that they had to
be given considerable weight. He consequently refused to order the child’s return to Australia.
Human-rights principles prevent the child’s return
The court may also refuse to order the child’s return if returning the child would be imper-
missible in terms of the requested state’s fundamental principles regarding the protection of
human rights and fundamental freedoms.411 Thus, if the child’s return would result in an
unjustifiable violation of a right the Bill of Rights412 confers on a child, the South African
court may refuse to order the child’s return.
(vi) An order refusing the child’s return
If the court concludes that the child is not to be returned, it has the power to decide on the
merits of the rights of custody. The court may also adjudicate the merits of the rights of cus-
tody if an application for the child’s return in terms of the Convention is not lodged within a
reasonable time.413
(vii) An order that the child be returned
If the court orders the child’s return, the order does not amount to ordering that the child must
be returned to the left-behind parent. It is an order that the child must be returned to the
requesting state.414
The Convention expressly provides that its provisions regarding returning a child do not
limit the court’s power to order a child’s return at any time.415 Thus, the High Court retains its
powers as upper guardian even if an application for a child’s return is made under the

________________________

407 Art 13. Although the part of art 13 dealing with the child’s objection is not separately numbered, it is
separate from art 13(a) and (b) and constitutes a separate defence: Central Authority of the Republic of South
Africa v B [2012] 3 All SA 95 (GSJ), 2012 (2) SA 296 (GSJ). On the exception relating to the child’s objec-
tion, see Boezaart 2013 New Zealand Law Review 357.
408 S 278(3); see also s 10.
409 [2012] 3 All SA 95 (GSJ), 2012 (2) SA 296 (GSJ). On this case, see Heaton 2012 Annual Survey of South
African Law 333–336; Boezaart in Kierkegaard and Kierkegaard (eds) 268–270.
410 Singh v Singh 1998 SLT 1084; M, Petitioner 2005 SLT 2.
411 Art 20.
412 Ch 2 of the Constitution.
413 Art 16.
414 Brown v Abrahams [2004] 1 All SA 401 (C), 2004 (4) BCLR 349 (C); Pennello v Pennello [2004] 1 All SA 32
(SCA), 2004 (3) BCLR 243 (SCA) (also reported as Pennello v Pennello (Chief Family Advocate as Amicus
Curiae) 2004 (3) SA 117 (SCA)).
415 Art 18.
348 South African Family Law

Convention. The High Court may therefore make whatever order it deems in the child’s best
interests.416 This may include imposing conditions for the child’s return.
Secondly, if it is alleged in an application for a child’s return in terms of the Convention
that a provision of the Bill of Rights has been violated, the court has the power to grant
appropriate relief in terms of section 38 of the Constitution. Read with section 28(2) of the
Constitution, this means that in such event the court may grant any appropriate constitutional
relief it considers in the child’s best interests, and this may also entail the imposition of
conditions.417
Thirdly, the Convention is based on comity and co-operation between Convention states.418
Such comity inter alia involves the making of undertakings and the issuing of an order regard-
ing those undertakings by the court in the requested state at the time when it orders the
child’s return to the requesting state, and a so-called “mirror order” being made in the request-
ing state.419 The court in the requested state frequently phrases the undertakings as condi-
tions. Among the conditions South African courts have imposed are ordering the abducting
parent to indicate within a specified time whether he or she intends returning with the child,
and ordering the left-behind parent to institute proceedings in the requesting state to obtain
a court order in specified terms (a mirror order) in the area to which the child is to be
returned should the abducting parent indicate that he or she intends returning with the
child. The specified terms of the court order the left-behind parent has been ordered to seek
have related to, inter alia, interim care by the abducting parent, withdrawal of a warrant for
the abducting parent’s arrest, parental co-operation regarding determining what future
arrangements will be in the child’s best interests, the left-behind parent’s contact with the
child being arranged without the necessity of direct contact between the parents, the left-
behind parent not committing or threatening to commit violence against the abducting
parent, separate accommodation for the child and the abducting parent in the requesting
state, and maintenance for the child and the abducting parent. The order for the child’s
return is usually stayed until the foreign court has made the mirror order.420
When appropriate, a court which orders the child’s return or issues an order regarding
rights of access may order the person who abducted the child or prevented the exercise of
rights of access to pay the applicant’s legal costs, the applicant’s expenses (including travel
expenses), any costs incurred or payments made in respect of locating the child, and the ex-
penses relating to returning the child.421
(viii) Constitutional issues
In LS v AT,422 the constitutionality of the Hague Convention on the Civil Aspects of Inter-
national Child Abduction Act was unsuccessfully challenged. It was argued that since the Con-
vention requires the court to order the child’s return without considering the merits of the
________________________

416 Chief Family Advocate v G 2003 (2) SA 599 (W). On the High Court’s powers as upper guardian, see above
in this chapter.
417 LS v AT 2001 (2) BCLR 152 (CC) (also reported as Sonderup v Tondelli 2001 (1) SA 1171 (CC)).
418 The purposes of the Convention are ensuring that the best interests of a child whose custody is in dispute
are considered by the court which is in the best position to do so by reason of the relationship between its
jurisdiction and the child; preventing the wrongful circumvention of that forum by the unilateral action of
a parent; and encouraging comity between states parties to facilitate co-operation in cases of international
child abduction: LS v AT 2001 (2) BCLR 152 (CC) (also reported as Sonderup v Tondelli 2001 (1) SA 1171
(CC)).
419 Skelton in Boezaart (ed) Child Law in South Africa 368.
420 See eg LS v AT 2001 (2) BCLR 152 (CC) (also reported as Sonderup v Tondelli 2001 (1) SA 1171 (CC));
Pennello v Pennello [2004] 1 All SA 32 (SCA), 2004 (3) BCLR 243 (SCA) (also reported as Pennello v Pennello
(Chief Family Advocate as Amicus Curiae) 2004 (3) SA 117 (SCA)); Family Advocate Port Elizabeth v Hide
[2007] 3 All SA 248 (SE); Central Authority (South Africa) v A 2007 (5) SA 501 (W); Central Authority v H 2008
(1) SA 49 (SCA); Family Advocate, Cape Town v EM 2009 (5) SA 420 (C).
421 Art 26.
422 2001 (2) BCLR 152 (CC) (also reported as Sonderup v Tondelli 2001 (1) SA 1171 (CC)).
 Chapter 23: Parental responsibilities and rights 349

underlying care or contact dispute, it obliges the court to act in a manner which does not rec-
ognise the paramountcy of the child’s best interests as entrenched in section 28(2) of the Con-
stitution. The Constitutional Court held that the Convention envisages two different
processes for dealing with cases in which a child has been wrongfully removed or retained.
The first is the jurisdictional procedure aimed at returning the child to the jurisdiction of his
or her habitual residence, and the second is the actual adjudication of the care dispute. The
procedure for adjudicating the care dispute is primarily concerned with the child’s long-term
interests, while the jurisdictional proceedings involve the interplay between the child’s short-
term and long-term interests. In the adjudication of the care dispute, the paramountcy of the
child’s best interests is clearly recognised and safeguarded. In the jurisdictional proceedings,
there may be instances in which the child’s short-term interests would not be served by his or
her immediate return to the requesting state, even though the adjudication procedure in that
state would protect his or her long-term interests. The Constitutional Court assumed, without
deciding the issue, that in such cases the Convention might require the child’s short-term
best interests to be overridden and that, to that extent, the Act might be inconsistent with
section 28(2) of the Constitution. However, the limitation of section 28(2) was justifiable in
view of the importance of the purpose of the Convention423 and the close relationship
between the purpose of the Convention and the means used to achieve that purpose. The
court also pointed out that substantial conditions designed to mitigate interim prejudice may
be imposed by the court that orders the child’s return. Obviously, the outcome would be the
same were the equivalent provisions of the Children’s Act to be challenged on the ground
that they violate section 28(2) of the Constitution.

23.5 Enforcement of parental responsibilities and rights

Enforcement of maintenance is discussed in chapter 5 above. Apart from the provisions set
out in that chapter, the Children’s Act criminalises non-fulfilment of elements of the duty of
support. Section 305(4) of the Act provides that a person who is legally liable to maintain a
child and fails to provide the child with adequate food, clothing, accommodation and medi-
cal assistance while being able to do so, is guilty of an offence.
The ways in which guardianship, care and contact can be enforced as between the parents
of a child born of married parents are discussed in chapter 14. The same remedies apply to
the enforcement of the parental responsibilities and rights of other holders of parental
responsibilities and rights.
In respect of the enforcement of parental responsibilities and rights against third parties it
should be noted that it has been held that a care-giving parent may obtain an interdict to pre-
vent a third party from contacting his or her child. However, if the parent has relinquished the
right to determine with whom his or her child may associate, an interdict will not be granted.424

23.6 Termination of parental responsibilities and rights

23.6.1 General
All aspects of parental responsibilities and rights (including the duty of support) are termi-
nated by the child’s death. Most aspects of parental responsibilities and rights are also termi-
nated by the parent’s death and by the child’s attainment of majority.425 However, as is
explained in more detail below, the latter rule does not apply to maintenance: a child who is
unable to support himself or herself may claim maintenance from his or her parent’s de-
ceased estate, and an adult child may claim maintenance until he or she has become self-
supporting.
________________________

423 See fn 418 above on the purposes of the Convention.

424 See Meyer v Van Niekerk 1976 (1) SA 252 (T); Coetzee v Meintjies 1976 (1) SA 257 (T); Gordon v Barnard 1977
(1) SA 887 (C); H v I 1985 (3) SA 237 (C); L v H 1992 (2) SA 594 (E).
425 See Heaton Persons 112–116 on the ways in which majority is attained.
350 South African Family Law

A person’s parental responsibilities and rights may be terminated by a court order that
deprives him or her of those responsibilities and rights. Such an order may be made in terms
of the High Court’s upper guardianship or in terms of the statutory provisions discussed in
this chapter. The terms of the particular order determine whether all of the person’s parental
responsibilities and rights are terminated, or only some of them.

23.6.2 Termination of the duty of support

(a) The child’s death
As indicated above, the duty of support is terminated by the child’s death, but not by the
parent’s death. After the parent’s death, the child has a maintenance claim against the de-
ceased parent’s estate to the extent that the child is unable to support himself or herself.426 If
the deceased parent bequeathed assets to the child which are sufficient to meet the child’s
maintenance needs, the child may not claim maintenance from the deceased estate.427 It is
unclear whether the estate of the deceased parent is proportionately liable for support even if
the surviving parent is able to maintain the child.428 The view that the liability of the deceased
parent’s estate exists independently of the surviving parent’s ability to maintain the child is
preferable on grounds of equity.
It is unclear whether the duty of support passes to the deceased estate of any other person
who is obliged to support the child. In Lloyd v Menzies 429 it was held that the duty passes to the
431
deceased estate of a grandparent, but in Barnard v Miller 430 the opposite was held.
A child’s claim against a deceased estate enjoys preference over the claims of heirs and lega-
tees, but not over those of creditors.432 If the child’s claim and the claim of a surviving spouse
of the deceased compete with one another and there are insufficient resources from which
the claims can be met, they are reduced proportionately.433
(b) The child’s adoption
Unless the adoption order provides otherwise (for example, in the case of a step-parent
434
adoption), adoption terminates all rights and responsibilities any person and the person’s
family members had in respect of the child prior to the adoption.435 Thus, for example, the
child cannot claim maintenance from his or her biological parents or grandparents after the
adoption. From the time of the adoption, however, the child may claim maintenance from his
437
or her adoptive parent.436 This includes children adopted in terms of customary law.
________________________

426 See eg Kramer v Findlay’s Executors (1878) Buch 51; Carelse v Estate De Vries (1906) 23 SC 532; Spies’ Executors
v Beyers 1908 TS 473; In re Estate Visser 1948 (3) SA 1129 (C), Heaton and Kruger Casebook on Family Law
case [86]; Secretary for Inland Revenue v Brey 1980 (1) SA 472 (A); Lambrakis v Santam 2000 (3) SA 1098 (W).
See further Ndaba March 2012 De Rebus 26.
427 See eg Ex parte Zietsman: In re Estate Bastard 1952 (2) SA 16 (C); Lambrakis v Santam 2000 (3) SA 1098 (W).
428 Hahlo, 5th edn, 409 contends that the duty of support falls on the surviving parent first, while Van der
Vyver and Joubert 628 and Van Schalkwyk in Boezaart (ed) Child Law in South Africa 58 contend that the
liability of the deceased parent’s estate ought not to depend on the surviving parent’s ability to maintain
the child.
429 1956 (2) SA 97 (N).
430 1963 (4) SA 426 (C).
431 See further in this regard MacKintosh and Paleker 2014 Acta Juridica 41.
432 See eg In re Estate Visser 1948 (3) SA 1129 (C); Ex parte Zietsman: In re Estate Bastard 1952 (2) SA 16 (C);
Barnard v Miller 1963 (4) SA 426 (C).
433 S 2(3)(b) of the Maintenance of Surviving Spouses Act 27 of 1990.
434 Centre for Child Law v Minister of Social Development 2014 (1) SA 468 (GNP). On this case, see further above
in this chapter.
435 S 242(1) of the Children’s Act.
436 S 242(2) and (3) of the Children’s Act.
437 See Maneli v Maneli 2010 (7) BCLR 703 (GSJ), where the court held that a child who had been adopted in
terms of Xhosa customary law is regarded as a child who had been adopted in terms of the Child Care Act
74 of 1983 or the Children’s Act. Consequently, there is a legal duty on the child’s adoptive father to pay
maintenance for that child, which is enforceable in terms of the Maintenance Act. For an in-depth discus-
sion of this decision, see Heaton 2010 Annual Survey of South African Law 453–459.
 Chapter 23: Parental responsibilities and rights 351

(c) The child’s becoming self-supporting438

In terms of the common law, the parental duty of support exists independently of parental
authority and lasts until the child becomes self-supporting, regardless of when this happens.439
By virtue of paragraph (a)(iii) of the definition of “care” in section 1(1) of the Children’s Act,
the duty of support has become part of parental responsibilities and rights. As a general rule,
parental responsibilities and rights terminate when the child attains majority. However, it is
submitted that the inclusion of the duty of support in “care” does not mean that the obliga-
tion to provide a child with support comes to an end when the child attains majority. The
Children’s Act did not expressly abolish the common-law duty of support, which includes the
440
rule that a dependent adult child is entitled to be maintained by his or her parents. Nor did
the legislator amend section 6(3) of the Divorce Act, which empowers the court that grants a
divorce to make any order it deems fit in regard to the maintenance “of a dependent child of
the marriage”, when it enacted the Children’s Act. If the legislator intended the inclusion of
the duty of support in “care” to result in the termination of the parental duty of support when
the child attains majority, the legislator should logically also have amended section 6(3) of
the Divorce Act to remove the court’s power to order maintenance for an adult dependent
child upon divorce. Moreover, affording adult dependent children of divorcing parents the
right to claim maintenance while precluding other dependent adult children from claiming
maintenance would clearly be unconstitutional, as this would constitute an unjustifiable
violation of the equality clause.
It is unclear whether the duty of support which is imposed on a non-parent who has care of
a child in terms of a court order, a parental responsibilities and rights agreement or an
appointment by a sole care-giving parent441 also continues after the child’s majority if the
child is not yet self-supporting. As indicated above, section 1(1) of the Children’s Act includes
the duty of support under the “care” element of parental responsibilities and rights, which
means that any non-parent who has care of a child in terms of a court order, a parental
responsibilities and rights agreement or an appointment by a sole care-giving parent is
responsible for the child’s maintenance. It is arguable that since this particular way of incur-
ring the duty to support a child is a statutory invention, the duty does not continue past the
termination of the person’s care. Therefore the duty will terminate, at the latest, when the
child attains majority.
(d) The child’s entering into a marriage or civil union
If the child enters into a marriage or civil union, the duty of support rests on the child’s
spouse or civil union partner first,442 but if the child’s spouse or civil union partner is unable
to support the child, the child may still claim maintenance from his or her parents, grandpar-
ents or siblings.443
(e) The liable party’s insolvency
Sequestration of the estate of a person who is obliged to maintain another does not terminate
the person’s duty of support,444 but the Insolvency Act 24 of 1936 limits the sources from
________________________

438 The mere fact that a child is in a position to obtain employment does not imply that he or she is, can or
should be self-supporting: Botha 2008 SALJ 716–719. Botha op cit 721–722 argues that the law should no
longer state that the duty of support terminates when the child becomes self-supporting. Instead, it should
provide that the duty comes to an end once there is no need for a contribution to the child’s mainte-
nance. The author submits that this change will remove the difficulties associated with determining
whether a child who is unwilling to be employed is entitled to maintenance.
439 See eg Gliksman v Talekinsky 1955 (4) SA 468 (W); Bursey v Bursey [1997] 4 All SA 580 (E) (confirmed on
appeal: 1999 (3) SA 33 (SCA) (also reported as B v B [1999] 2 All SA 289 (SCA)).
440 See also Barratt (ed) Persons and the Family 190; Schäfer Child Law in South Africa 226.
441 On these ways of obtaining care, see above in this chapter.
442 See eg Gliksman v Talekinsky 1955 (4) SA 468 (W); Ex parte Jacobs 1982 (2) SA 276 (O); Pillay v Pillay 2004
(4) SA 81 (SE).
443 See eg Gliksman v Talekinsky 1955 (4) SA 468 (W).
444 Tregoning v Tregoning 1914 WLD 95.
352 South African Family Law

which the duty can be satisfied to a moderate sum of money or a moderate amount of
goods.445

23.6.3 Termination of an order regarding a child’s maintenance

A maintenance order is ancillary to the duty of support.446 Therefore the duration of the
order does not necessarily coincide with the duration of the duty of support. If a maintenance
order has been made in respect of the child and the order stipulates that maintenance must
be paid until the child reaches a certain age, the order automatically ceases to operate when
the child reaches that age.447 However, the duty of support continues after the child has
reached the stipulated age if the child is still in need of support.448
It is unclear whether a maintenance order lapses automatically when the child becomes self-
supporting. According to an obiter dictum of the Supreme Court of Appeal in B v B,449 it does
not, unless the maintenance order stipulates that it operates only until the child becomes self-
supporting. In other words, the order only lapses upon the occurrence of the event or the ex-
piration of the period specified in the order. However, other courts have held that the
maintenance order lapses automatically if the child becomes self-supporting and no age has
been specified in the maintenance order,450 or if the child becomes self-supporting before
reaching the age specified in the maintenance order.451

________________________

445 Ss 23(5), 79, 81(3), 82(6). On the effect of sequestration on the insolvent’s duty of support and the weigh-
ing up of the rights of the child of the insolvent and the creditors of the insolvent estate, see further
Stander and Horsten 2008 TSAR 203.
446 S 15(1) of the Maintenance Act; Zimelka v Zimelka 1990 (4) SA 303 (W).
447 Kemp v Kemp 1958 (3) SA 736 (D); B v B [1999] 2 All SA 289 (SCA) (also reported as Bursey v Bursey 1999
(3) SA 33 (SCA)).
448 Gliksman v Talekinsky 1955 (4) SA 468 (W); Hoffman v Herdan 1982 (2) SA 274 (T); Ex parte Jacobs 1982 (2)
SA 276 (O).
449 [1999] 2 All SA 289 (SCA) (also reported as Bursey v Bursey 1999 (3) SA 33 (SCA)); see also Russell v
Boughten 1955 (2) SA 229 (SR); Kemp v Kemp 1958 (3) SA 736 (D); Phillips v Phillips 1961 (2) SA 337 (D).
450 Richter v Richter 1947 (3) SA 86 (W); Gold v Gold 1975 (4) SA 237 (D); Van Dyk v Du Toit 1993 (2) SA 781
(O).
451 Rheeder v Rheeder 1950 (4) SA 30 (C); S v Richter 1964 (1) SA 841 (O); S v Dannhauser 1993 (2) SACR 398
(O). For an analysis of the conflicting case law, see Botha 2008 SALJ 724–729.
 PART

8
GUARDIANSHIP AND CURATORSHIP
 24
GUARDIANSHIP AND CURATORSHIP

24.1 Guardianship
24.1.1 General
The guardianship which is under consideration in this chapter is not the guardianship that is
a component of parental responsibilities and rights.1 In this chapter, guardianship refers to
the officially supervised care of the estate of a minor or the person and estate of a minor. The
person who exercises this type of guardianship is called a guardian or tutor.

24.1.2 The types of guardians

(a) Testamentary guardian
If a child is born of married parents or of unmarried parents who share parental responsibil-
ities and rights, the child’s parent may appoint a person to act as the child’s legal guardian or
to have care of the child after the parent’s death if the parent has sole guardianship or sole
care of the child,2 or if the other parent is already deceased or is prohibited by a court order
from exercising guardianship or care.3 The appointment must be made in the parent’s will and
the appointed person must be fit and proper to exercise guardianship or care.4 Before the
parent makes the appointment, he or she must give due consideration to any views and wishes
expressed by the child, bearing in mind the child’s age, maturity and stage of development.5
A guardian who is nominated in a will is called a testamentary guardian or testamentary
tutor. A testamentary guardian acquires guardianship or care only after the death of the child’s
parent and upon accepting the appointment.6 He or she may furthermore not act as the
minor’s guardian until his or her appointment has been confirmed by the Master of the High
Court.7 If a parent appoints more than one person as testamentary guardian, any, several or
all of them may accept the appointment, unless the parent’s will stipulates otherwise.8
(b) Assumed tutor
A testamentary guardian may appoint a guardian to assist him or her in exercising guardian-
ship or care, or even to take his or her place if the testator’s will expressly confers this power
(that is, the power of assumption or substitution) on him or her. Someone who is appointed
in this way is called an assumed tutor. The appointment of an assumed tutor must also be con-
firmed by the Master.9
________________________

1 On the guardianship which is part of parental responsibilities and rights, see ch 23 above.
2 S 5(3) of the Matrimonial Affairs Act 37 of 1953; s 27(1) of the Children’s Act 38 of 2005.
3 S 5(3) of the Matrimonial Affairs Act; s 72(1)(a) of the Administration of Estates Act 66 of 1965; s 27(1)
and (2) of the Children’s Act.
4 S 27(1) and (2) of the Children’s Act; see also s 72(1)(a) of the Administration of Estates Act.
5 S 31(1)(a) and (b)(iii) of the Children’s Act; see also s 10 of the Children’s Act.
6 S 27(3) of the Children’s Act.
7 S 71 of the Administration of Estates Act.
8 S 27(4) of the Children’s Act.
9 S 71 of the Administration of Estates Act.

355
356 South African Family Law

(c) Tutor dative

Both the High Court10 and the Master of the High Court11 may appoint a guardian for a
minor whose interests require this. Such a guardian is called a tutor dative. A tutor dative is
appointed, for example, if property accrues to a minor while the minor does not have a
parent, guardian or curator.
(d) Supposed or putative tutor
Sometimes a person acts as a minor’s guardian while under the mistaken impression that he
or she is the minor’s guardian while this is not the case. For example, in Yu Kwam v President
Insurance Co Ltd 12 a father who thought that he was his child’s guardian instituted legal pro-
ceedings on behalf of the child. It subsequently appeared that the marriage of the child’s
parents was invalid and that the child was therefore born of unmarried parents. At the time,
the father of a child born of unmarried parents did not have parental responsibilities and
rights. The father had been unaware of the invalidity of the marriage. In its capacity as upper
guardian of all minors, the High Court ratified the supposed or putative guardian’s conduct
because ratification was in the minor’s interests.

24.1.3 The requirements for appointment as a guardian

A person may act as guardian only if the following requirements are met:
(1) The person is a major.13
(2) The person is not subject to curatorship.14
(3) If the person is to be appointed as a testamentary guardian, he or she must not have
been a witness to the will in which he or she was nominated.15
(4) The court has not declared the person incapable of holding the office of guardian.16
(5) The person has provided financial security for the proper performance of his or her
functions.17

24.1.4 The rights and duties of a guardian

No one is obliged to accept appointment as a legal guardian.18 The guardian’s specific rights,
duties and powers are determined by the letters of tutorship. They generally include the
following:
(1) The guardian must act in good faith, with the necessary care and in the minor’s best
interests, and avoid conflicts between his or her interests and those of the minor.19
(2) The guardian must, within 30 days of his or her appointment, compile and lodge with
the Master an inventory of all property of the minor falling under his or her control.20
(3) The guardian must administer and safeguard the child’s property and property interests,
assist or represent the child in administrative, contractual and other legal matters, and
give or refuse any consent which is required by law in respect of the child.21
________________________

10 The High Court has the power to appoint a guardian for a minor both in terms of its upper guardianship
of all minors and in terms of s 24 of the Children’s Act: see ch 23 above.
11 S 73 of the Administration of Estates Act.
12 1963 (1) SA 66 (T).
13 Dhanabakium v Subramanian 1943 AD 160.
14 Grotius 1.7.6; Voet 26.1.4; Van der Linden 1.5.1. Curatorship is discussed below in this chapter.
15 S 4A of the Wills Act 7 of 1953.
16 S 85 read with s 54(4) of the Administration of Estates Act.
17 S 77(1) of the Administration of Estates Act. The court may dispense with the requirement of security, and
a testator or donor who appoints a guardian may exempt him or her from providing security.
18 Lee and Honoré par 176; Van der Vyver and Joubert 636.
19 D 26.7.39.2, 26.7.3, 26.7.7; Grotius 1.8.7; Van Leeuwen Rooms-Hollands-Regt 1.16.8, 1.16.12; Van der Linden
1.5.3.
20 S 78(1)(a) of the Administration of Estates Act.
21 S 18(3) of the Children’s Act.
 Chapter 24: Guardianship and curatorship 357

(4) The guardian must use the minor’s estate to provide for the minor’s maintenance and
education.22 If the estate is too small to support the minor, the guardian must claim
maintenance from those persons who are legally obliged to support the minor.23
(5) The guardian must submit an annual report of his or her administration to the Master.24
(6) The guardian is entitled to the prescribed remuneration for his or her services.25
(7) When the guardianship ends, the guardian must give account of his or her guardianship.26

24.1.5 Termination of guardianship

Guardianship comes to an end when one of the following situations occurs:
(1) The minor dies.
(2) The minor attains majority.
(3) The guardian dies.
(4) The period of time for which the guardian was appointed elapses.
(5) The guardian is discharged from office after having completed all his or her tasks.27
(6) The guardian resigns or is disqualified from being a guardian.28
(7) The guardian is removed by the High Court or the Master of the High Court.29

24.2 Curatorship
24.2.1 General
Curatorship refers to the officially supervised care of the estate of someone who, for some
reason or another (such as minority, old age, or mental or physical illness), is incapable of
managing his or her own affairs, or to the officially supervised care of the person and estate of
such a person.30 If the curator is appointed to look after the person’s estate, he or she is called
a curator or curatrix bonis. If the curator is appointed to take care of the person’s person, he or
she is called a curator or curatrix personae.31 And if the curator is appointed only for purposes of
litigation, he or she is called a curator or curatrix ad litem.32
________________________

22 Ss 82(c)(iii) and 90(1) of the Administration of Estates Act.

23 See eg Grotius 1.9.9; Voet 26.7.1, 26.7.6, 27.2.1; Van der Linden 1.4.3. On the duty of support in respect of
a child, see ch 23 above.
24 S 83(1)(a) of the Administration of Estates Act.
25 S 84(1) of the Administration of Estates Act.
26 Van der Vyver and Joubert 640; Visser and Potgieter 219. On a guardian’s rights, duties and powers, see fur-
ther ch IV of the Administration of Estates Act; Lee and Honoré pars 177–187; Van der Vyver and Joubert
638–640; Visser and Potgieter 218–219; Wille’s Principles 211–212.
27 S 85 read with s 56(1) of the Administration of Estates Act.
28 S 85 read with s 54 of the Administration of Estates Act.
29 Ibid.
30 Lee and Honoré par 165 restrict the definition of curatorship to officially supervised care of the person and
estate of a person who has attained majority. The exclusion of curatorship in respect of a minor is probably
due to an oversight, for when they discuss the curator nominate they (correctly) include a curator nomin-
ate appointed in respect of property that has been bequeathed or donated to a minor: par 171.
31 A curator or curatrix personae can be given general powers over the person’s person, or his or her power can
be limited to making a single decision, eg whether the person should undergo an operation or continue to
receive medical treatment. Eg, in Clarke v Hurst 1992 (4) SA 630 (D) a wife was appointed curatrix personae
to her husband who was in a deep coma. She was specifically empowered to authorise discontinuation of
his medical treatment, including artificial feeding, notwithstanding the fact that this might hasten his
death. If the curator is given general power over the person’s person, he or she is in overall control of the
person’s residence, medical treatment and personal regimen: see eg Ex parte Hill 1970 (3) SA 411 (C).
32 In Ex parte Oppel 2002 (5) SA 125 (C) (also reported as Ex parte Oppel In re: Appointment of Curator ad Litem
and Curator Bonis [2002] 1 All SA 8 (C)), the court held that if a minor’s guardian is alive and available, a
curator ad litem will be appointed to assist the minor in exceptional circumstances only. On the distinction
between the three kinds of curators, see further Barratt (ed) Persons and the Family 98–100; Boezaart Persons
continued
358 South African Family Law

24.2.2 The types of curators

(a) Curator nominate
A testator or donor who bequeaths or donates property to someone who lacks capacity to act,
such as a minor or a mentally ill person, may appoint a curator or curatrix bonis to administer
the property for the duration of the person’s incapacity. A curator who is appointed in this
manner is called a curator nominate. The appointment of a curator nominate only becomes
official once it has been confirmed by the Master of the High Court.33
(b) Assumed curator
A curator nominate may appoint a curator or curatrix bonis to assist him or her or even to take
his or her place if the power of assumption (or substitution) was expressly conferred in the
will, deed of donation or other instrument in which he or she was appointed. Someone who is
appointed in this way is called an assumed curator. The appointment of an assumed curator
must also be confirmed by the Master.34
(c) Curator dative
The High Court and the Master of the High Court have statutory and common-law powers to
appoint curators. A curator who is appointed by the court or the Master is called a curator
dative. The High Court may, for example, appoint a curator or curatrix bonis and/or a curator
or curatrix personae for a mentally ill person35 or someone who is unable to manage his or her
own affairs (for instance, because of old age, a serious illness or a handicap).36 The Master
may, inter alia, appoint a curator dative to be the curator or curatrix bonis over property which
belongs to someone whose place of residence is unknown or who is permanently absent from
South Africa without having a legal representative to administer the property.37
(d) Curator or curatrix ad litem
A curator or curatrix ad litem is appointed by the court. He or she is someone who assists a
person in litigation because the person does not have capacity to litigate. Such a curator is
appointed for, for example, unborn children, mentally ill persons, and minors who are
involved in litigation against their parents.

24.2.3 The requirements for appointment as a curator

A person may act as curator only if the following requirements are met:
(1) The person is a major.38
(2) The person is not subject to curatorship.39
(3) If the person is to be appointed as a curator nominate, he or she must not have been a
witness to the will in which he or she was nominated.40
(4) The court has not declared the person incapable of holding the office of curator.41
________________________

146–150; Heaton Persons 121–122; Heaton in Van Heerden et al (eds) Boberg’s Law of Persons and the Family
137–140; Van der Vyver and Joubert 370; Wille’s Principles 376–380.
33 S 71 of the Administration of Estates Act.
34 Ibid.
35 Rule 57 of the Uniform Rules of Court. In terms of s 59(1) of the Mental Health Care Act 17 of 2002, the
Master of the High Court 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. On the
appointment of curators or administrators for mentally ill persons, see further Heaton Persons 121–122,
127–128.
36 See eg Ex parte De Klerk 1968 (4) SA 130 (C); Ex parte Hill 1970 (3) SA 411 (C). On the appointment of
curators for persons who are unable to manage their own affairs, see further Heaton Persons 129–131.
37 S 73(1)(a) of the Administration of Estates Act.
38 Dhanabakium v Subramanian 1943 AD 160.
39 Grotius 1.7.6; Voet 26.1.4; Van der Linden 1.5.1.
40 S 4A of the Wills Act.
41 S 85 read with s 54(4) of the Administration of Estates Act.
 Chapter 24: Guardianship and curatorship 359

(5) Unless the person is a curator or curatrix ad litem, he or she must have provided financial
security for the proper performance of his or her functions.42

24.2.4 The rights and duties of a curator

As in the case of a guardian, no one is obliged to accept the nomination to be a curator.43 A
curator’s rights and duties in many respects correspond to those of a guardian. The exact
scope of the rights and duties depend on whether the person is a curator or curatrix bonis,44 per-
sonae, or ad litem and on the terms of his or her letters of curatorship. Generally, a curator’s
rights and duties include the following:
(1) The curator must act in good faith, with the necessary care and in the best interests of
the person who has been placed under curatorship, and avoid conflicts between his or
her interests and those of such person.45
(2) A curator or curatrix bonis must, within 30 days of his or her appointment, compile and
lodge with the Master an inventory of all the property of the person who has been placed
under curatorship which falls under his or her control.46
(3) The curator must assist and/or represent the person who has been placed under curator-
ship in juristic acts (or in litigation if he or she is a curator or curatrix ad litem).47
(4) The curator must submit an annual report of his or her administration to the Master.48
(5) The curator is entitled to the prescribed remuneration for his or her services.49

24.2.5 Termination of curatorship

Curatorship comes to an end when
(1) The person who has been placed under curatorship dies.
(2) The court terminates the curatorship, for example, because the mentally ill person has
regained his or her mental health or the insolvent has been rehabilitated.
(3) The curator dies.
(4) The period of time for which the curator was appointed elapses.
(5) The curator is discharged from office after having completed all his or her tasks.50
(6) The curator resigns or is disqualified from being a curator.51
(7) The curator is removed by the High Court or the Master of the High Court.52

________________________

42 S 77 of the Administration of Estates Act. The court may dispense with the requirement of security, and a
testator or donor who appoints a curator may exempt him or her from providing security.
43 Lee and Honoré par 176.
44 On the functions, powers and duties of a curator or curatrix bonis, see further Ex parte Du Toit: In re Curator-
ship Estate Schwab 1968 (1) SA 33 (T); Ex parte Hulett 1968 (4) SA 172 (D); Ex parte Thompson 1983 (4) SA
392 (E); Ex parte Bell 1991 (2) SA 109 (T); Reyneke v Mutual & Federal Insurance Co Ltd 1992 (2) SA 417 (T);
Spangenberg v De Waal [2008] 1 All SA 162 (T); Barratt (ed) Persons and the Family 98–99; Boezaart Persons
147–150; Heaton Persons 135 fn 6; Heaton in Van Heerden et al (eds) Boberg’s Law of Persons and the Family
138–140 fn 137; Kruger in Harms and Faris (eds) LAWSA Mental Health par 412; Wille’s Principles 376–378.
45 D 26.7.39.2, 26.7.39.3, 26.7.39.7; Grotius 1.8.7; Van Leeuwen Rooms-Hollands-Regt 1.16.8, 1.16.12; Van der
Linden 1.5.3.
46 S 78(1)(a) of the Administration of Estates Act.
47 Lee and Honoré par 186; see also Letzler and Vergano June 2014 De Rebus 30.
48 S 83(1)(a) of the Administration of Estates Act.
49 S 84 of the Administration of Estates Act. On the curator’s rights, duties and powers, see further ch IV of
the Administration of Estates Act; Heaton in Van Heerden et al (eds) Boberg’s Law of Persons and the Family
138–140; Lee and Honoré pars 177–187; Van der Vyver and Joubert 371–378; Wille’s Principles 226–229,
376–380; Neumann June 1998 De Rebus 62.
50 S 85 read with s 56(1) of the Administration of Estates Act.
51 S 85 read with s 54 of the Administration of Estates Act.
52 S 85 read with s 54(1) of the Administration of Estates Act.
 BIBLIOGRAPHY

Allen R (ed) The Penguin English Dictionary London: Penguin, 2002

Atkin B (ed) 2007 International Survey of Family Law Bristol: Family Law, 2007
Atkin B (ed) 2008 International Survey of Family Law Bristol: Family Law, 2008
Atkin B (ed) 2015 International Survey of Family Law Bristol: Family Law, 2015
Bainham A (ed) 1994 International Survey of Family Law The Hague: Martinus Nijhoff Publish-
ers, 1996
Bainham A, Pearl D and Pickford R (eds) Frontiers of Family Law Chichester: John Wiley &
Sons, 1995
Barnard AH Die Nuwe Egskeidingsreg Durban: Butterworths, 1979
Barratt A (ed) Law of Persons and the Family Cape Town: Pearson Education South Africa, 2012
Bekker JC WG Seymour’s Customary Law in South Africa 5th edn, Cape Town: Juta, 1989
Bennett TW Human Rights and African Customary Law under the South African Constitution Cape
Town: Juta, 1995
Bill of Rights Compendium (loose-leaf) Durban: LexisNexis, 1996
Blanpain R (ed) International Encyclopaedia of Laws: Law in Motion: World Law Conference,
Brussels, 9–12 September 1996: Recent Developments in Civil Procedure, Constitutional, Contract,
Criminal, Environmental, Family and Succession, Intellectual Property, Labour, Medical, Social Secu-
rity, Transport Law The Hague: Kluwer Law International, 1997
Boele-Woelki K, Miles J and Scherpe JM (eds) The Future of Family Property in Europe Cam-
bridge: Intersentia, 2011
Boezaart T (ed) Child Law in South Africa Claremont: Juta, 2009
Boezaart T Law of Persons 5th edn, Cape Town: Juta, 2010
Bonthuys E and Albertyn C (eds) Gender, Law and Justice Cape Town: Juta, 2007
Bosman-Sadie H and Corrie L (with Swanepoel E) A Practical Approach to the Children’s Act 2nd
edn, Durban: LexisNexis, 2013
Bosman-Swanepoel H, Fick A and Strydom N Custody and Visitation Disputes: A Practical Guide
Durban: Butterworths, 1998
Brouwer H De Jure Connubiorum (2 vols) 2nd edn, Delft: Adrianum Beman, 1714
Burman S (ed) The Fate of the Child: Legal Decisions on Children in the New South Africa Lans-
downe: Juta, 2003
Christie RH and Bradfield GB The Law of Contract in South Africa 6th edn, Durban: LexisNexis
2011
Church J (ed) The Law of South Africa (LAWSA) vol 16: Marriage, 2nd edn, Durban: LexisNex-
is Butterworths, 2006
Claassens A and Smythe D (eds) Marriage, Land and Custom. Essays on Law and Social Change in
South Africa Claremont: Juta, 2013
Clark B (ed) Family Law Service (loose-leaf) Durban: LexisNexis, 1998
361
362 South African Family Law

Davel CJ (ed) Children’s Rights in a Transitional Society Menlo Park: Protea Book House, 1999
Davel CJ and Skelton AM (eds) Commentary on the Children’s Act (loose-leaf) Wetton: Juta & Co
Ltd, 2007
De Jong M Egskeidingsbemiddeling in Suid-Afrika: ’n Vergelykende Studie LLD thesis, University of
South Africa, 2002
Devenish GE A Commentary on the South African Bill of Rights Durban: Butterworths, 1999
Devenish GE A Commentary on the South African Constitution Durban: Butterworths, 1998
Devenish GE Interpretation of Statutes Kenwyn: Juta, 1992
Du Bois F, Bradfield G, Himonga C, Hutchison D, Lehmann K, Le Roux R, Paleker M, Pope
A, Van der Merwe CG and Visser D Wille’s Principles of South African Law 9th edn, Cape
Town: Juta, 2007
Du Plessis J The South African Law of Unjustified Enrichment Claremont: Juta, 2012
Du Plessis L Re-interpretation of Statutes Durban: Butterworths, 2002
Eekelaar J and Nhlapo T (eds) The Changing Family: International Perspectives on the Family and
Family Law Oxford: Hart Publishing, 1998
Erasmus HJ, Van der Merwe CG and Van Wyk AH see Lee and Honoré
Fenrich J, Galizzi P and Higgins TE The Future of African Customary Law New York: Cambridge
University Press, 2011
Ferreira S Interracial and Intercultural Adoption: A South African Legal Perspective LLD thesis, Uni-
versity of South Africa, 2009
Forsyth CF Private International Law 5th edn, Cape Town: Juta, 2012
Gerber P and Sifris A (eds) Current Trends in the Regulation of Same-Sex Relationships Sydney:
Federation Press, 2010
Glendon MA The Transformation of Family Law: State, Law and Family in the United States and
Western Europe Chicago: University of Chicago Press, 1989
Goldblatt B and McLean K (eds) Women’s Social and Economic Rights: Developments in South
Africa Cape Town: Juta, 2011
Grotius H Inleidinge tot de Hollandsche Rechts-geleerdheid (with notes by Fockema Andreae SJ),
3rd edn (by Van Apeldoorn LJ), Arnhem: S Gouda Quint, 1926
Hahlo HR The South African Law of Husband and Wife 4th edn, Cape Town: Juta, 1975
Hahlo HR The South African Law of Husband and Wife 5th edn, Cape Town: Juta, 1985
Hahlo HR and Kahn E The Union of South Africa:The Development of its Laws and Constitution
London: Stevens & Son Limited; Cape Town: Juta, 1960
Heaton J The South African Law of Persons 4th edn, Durban: LexisNexis Butterworths, 2010
Heaton J (ed) The Law of Divorce and Dissolution of Life Partnerships in South Africa Cape Town:
Juta, 2014
Heaton J and Kruger JM Casebook on South African Family Law/Vonnisbundel oor die Suid-
Afrikaanse Familiereg 4th edn, Durban: LexisNexis, 2015
Himonga C and Nhlapo T (eds) African Customary Law in South Africa: Post-Apartheid and Living
Law Perspectives Cape Town: Oxford University Press Southern Africa, 2014
Hoctor SV and Schwikkard PJ The Exemplary Scholar Essays in Honour of John Milton Cape Town:
Juta, 2007
Hoffman A and Pincus BK The Law of Custody Durban: Butterworths, 1989
Holden L Hindu Divorce: A Legal Anthropology Aldershot: Ashgate, 2008
Human CS Die Invloed van die Begrip Kinderregte op die Privaatregtelike Ouer–Kind Verhouding LLD
thesis, University of Stellenbosch, 1998
 Bibliography 363

Jacobs S Enkele Regsaspekte rakende Gesinsgeweld: Spreek die Wet op Gesinsgeweld, 1998 die Leemtes in
die Wet op die Voorkoming van Gesinsgeweld, 1993 Sinvol aan? LLM Dissertation, University of
South Africa, 2000
Kaganas F and Budlender D Issues in Law, Race and Gender 1: Family Advocate Cape Town: Law,
Race and Gender Research Unit, University of Cape Town, 1996
Kaime T The African Charter on the Rights and Welfare of the Child. A Socio-Legal Perspective Preto-
ria: Pretoria University Law Press, 2009
Keightley R (ed) Children’s Rights Kenwyn: Juta, 1996
Kersteman FL Hollandsch Rechtsgeleerd Woorden-Boek Amsterdam: Steven van Esveldt, 1772–1773
Kierkegaard S and Kierkegaard M (eds) Law, Governance and World Order Place of publication
unknown: International Association of IT Lawyers (IAITL), 2012
Kruger A “Mental health” in Harms LTC and Faris JA (eds) The Law of South Africa (LAWSA)
vol 17(2), 2nd edn, Durban: LexisNexis, 2008
Kruger JM Judicial Interference with Parental Authority: A Comparative Analysis of Child Protection
Measures LLD thesis, University of South Africa, 2003
Lee and Honoré Family, Things and Succession 2nd edn (by Erasmus HJ, Van der Merwe CG
and Van Wyk AH) Durban: Butterworths, 1983
Liebenberg S Socio-economic Rights Adjudication under a Transformative Constitution Cape Town:
Juta, 2010
Louw AS Acquisition of Parental Responsibilities and Rights LLD thesis, University of Pretoria,
2009
Maclean M and Eekelaar J (eds) Managing Family Justice in Diverse Societies Oxford: Hart Pub-
lishing, 2013
Mahery P, Proudlock P and Jamieson L Guide to the Children’s Act for Health Professionals 4th
edn, Cape Town: Children’s Institute 2010
Mathews S, Jamieson L, Lake L and Smith C (eds) 2014 South African Child Gauge Cape Town:
Children’s Institute, 2014
Matthaeus A Paroemiae Belgarum Jurisconsultis Usitatissimae, Editio Altera, cui Acceserunt Additiones
Utrecht: Ultrajecti, 1667
May C and Mudarikwa M The Domestic Violence Act: 15 Years Later A Gap Analysis of the Domestic
Violence Act in Cape Town Johannesburg: Legal Resources Centre, 2013
Meskin PM, Galgut B, Magid PAM, Kunst JA, Boraine A and Burdette DA Insolvency Law and
Its Operation in Winding-up (loose-leaf) Durban: LexisNexis, 1990
Mofokeng LL Legal Pluralism in South Africa: Aspects of African Customary, Muslim and Hindu
Family Law Pretoria: Van Schaik Publishers, 2009
Monson J, Hall K, Smith C and Shung-King M (eds) 2006 South African Child Gauge Cape
Town: Children’s Institute, 2006
Moosa N Unveiling the Mind. The Legal Position of Women in Islam – A South African Context 2nd
edn, Cape Town: Juta, 2011
Murray C (ed) Gender and the New South African Legal Order Kenwyn: Juta, 1994
O’Leary J Mediation in Family and Divorce Disputes Cape Town: SiberInk, 2014
Olivier NJJ, Bekker JC, Olivier NJJ (Jr) and Olivier WH The Law of South Africa (LAWSA) vol
32: Indigenous Law, Durban: Butterworths, 1995
Olivier NJJ, Olivier NJJ (Jr) and Olivier WH Die Privaatreg van die Suid-Afrikaanse Ban-
toetaalsprekendes 3rd edn, Durban: Butterworths, 1989
Olivier PJJ (ed) Huldigingsbundel aangebied aan Professor Daniel Pont op sy Vyf-en-Sewentigste Ver-
jaardag Cape Town: AA Balkema, 1970
364 South African Family Law

Owens PR (updated by Wunsch B (Re-issue) and Daniels H (2nd edn) The Law of South Africa
(LAWSA) vol 8(1): Donations, 2nd edn, Durban: LexisNexis Butterworths, 2005
Phillips C Child-headed Households: A Feasible Way Forward, or an Infringement of Children’s Right to
Alternative Care? DIur thesis, University of Leiden, 2011
Pollecutt L, Motshekga M and Gardner A The Legal Rights of Children in South Africa Johannes-
burg: National Institute for Public Interest Law and Research: Community Law Centre, 1995
Proudlock P, Dutschke M, Jamieson L, Monson J and Smith C (eds) 2007/2008 South African
Child Gauge Cape Town: Children’s Institute, 2008
Rautenbach C, Bekker JC and Goolam NMI Introduction to Legal Pluralism in South Africa 3rd
edn, Durban: LexisNexis, 2010
Robinson JA (ed) The Law of Children and Young Persons in South Africa Durban: Butterworths,
1997
Schäfer L Child Law in South Africa. Domestic and International Perspectives Durban: LexisNexis
2011
Schäfer L The Law of Access to Children: A Comparative Study of South African, English and Austral-
ian Law Durban: LexisNexis, 2007
Schwellnus T The Legal Implications of Cohabitation in South Africa: A Comparative Approach DIur
thesis, University of Leiden, 1994
Seymour WG see Bekker JC
Sinclair JD Introduction to the Matrimonial Property Act 1984 Cape Town: Juta, 1984
Sinclair JD (assisted by Heaton J) The Law of Marriage vol 1, Kenwyn: Juta, 1996
Skelton A and Carnelley M (eds) Family Law in South Africa Cape Town: Oxford University
Press Southern Africa, 2010
Sloth-Nielsen J (ed) Children’s Rights in Africa: A Legal Perspective Aldershot: Ashgate, 2008
Sloth-Nielsen J and Du Toit Z (eds) Trials and Tribulations, Trends and Triumphs: Developments
in International, African and South African Child and Family Law: Collected Contributions from the
International Miller du Toit Cloete Inc/UWC Conferences on Child and Family Law (2001–2008)
Cape Town: Juta, 2008
Soanes C and Stevenson A (eds) Concise Oxford English Dictionary 11th edn revised, Oxford:
Oxford University Press, 2006
Sonnekus JC Die Privaatregtelike Beskerming van die Huwelik DIur thesis, University of Leiden,
1976
South African Law Commission Discussion Paper 74 Customary Marriages Project 90 Pretoria, 1996
South African Law Commission Discussion Paper Review of the Child Care Act Project 110 Pretoria,
2001
South African Law Commission Issue Paper 15 Project 59 Islamic Marriages and Related Matters
Pretoria, 2000
South African Law Commission Project 94 Report on Domestic Arbitration Pretoria, 2001
South African Law Commission Project 100 Access to Minor Children by Interested Persons Report
Pretoria, 1996
South African Law Commission Report on Customary Marriages Project 90 Pretoria, 1998
South African Law Commission Report on Jewish Divorces Project 76 Pretoria, 1994
South African Law Commission Report on the Investigation into the Legal Consequences of Sexual
Realignment and Related Matters Project 52 Pretoria, 1995
South African Law Commission Report on the Law of Divorce and Matters Incidental Thereto RP57/
1978 Pretoria, 1978
South African Law Commission Report on the Review of the Child Care Act Project 110 Pretoria,
2002
 Bibliography 365

South African Law Commission Report on the Review of the Law of Divorce: Amendment of Section
7(3) of the Divorce Act, 1979 Pretoria, 1990
South African Law Commission Report on the Review of the Marriage Act 25 of 1961 Pretoria, 2001
South African Law Commission Report Pertaining to the Matrimonial Property Law with Special Ref-
erence to the Matrimonial Affairs Act, 1953, the Status of the Married Woman, and the Law of Suc-
cession in so far as it Affects the Spouses RP26/1982 Pretoria, 1982
South African Law Reform Commission Issue Paper 28 Review of the Maintenance Act 99 of 1998
Project 100 Pretoria, 2014
South African Law Reform Commission Project 106 Islamic Marriages and Related Matters Report
Pretoria, 2003
South African Law Reform Commission Project 118 Report on Domestic Partnerships Pretoria,
2006
Spiro E Law of Parent and Child 4th edn, Cape Town: Juta, 1985
Steyn LC Die Uitleg van Wette 4th edn, Cape Town: Juta, 1974
Van Bijnkershoek C Observationes Tumultuariae vol II (De Blécourt AS, Meyers EM, Dorhout
Mees TJ, Bodenstein HDJ, Telders BM and De Jong FJ (eds)) Harlem: HD Tjeenk Willink
& Seun, 1934
Van den Heever FP Breach of Promise and Seduction in South African Law Cape Town: Juta, 1954
Van der Keessel DG Praelectiones Iuris Hodierni ad Hugonia Grotii Introductionem ad Iurispru-
dentiam Hollandicam (Van Warmelo P, Coertze LI and Gonin HL (eds); translated into Afri-
kaans by Gonin HL in consultation with Pont D) Amsterdam and Cape Town: AA Balkema,
1961–1975
Van der Keessel DG Theses Selectae Juris Hollandici et Zelandici Amsterdam: F Muller, 1860
Van der Linde A Grondwetlike Erkenning van Regte ten aansien van die Gesin en Gesinslewe met Ver-
wysing na Aspekte van Artikel 8 van die Europese Verdrag vir die Beskerming van die Regte en Vryhe-
de van die Mens LLD thesis, University of Pretoria, 2001
Van der Linden J Rechtsgeleerd, Practicaal, en Koopmans Handboek Amsterdam: J Allart, 1806
Van der Vyver JD and Joubert DJ Persone- en Familiereg 3rd edn, Cape Town: Juta, 1991
Van Heerden B, Cockrell A and Keightley R (eds) Boberg’s Law of Persons and the Family 2nd
edn, Kenwyn: Juta, 1999
Van Leeuwen S Censura Forensis Lugduni in Batavis: S Luchtmans and C Haak, 1741
Van Leeuwen S Het Rooms-Hollands-Regt (2 vols) (with notes by Decker CW and Ten Houten J)
Amsterdam: Hendrik en de Wed van Dirk Boom, 1780, 1783
Van Niekerk PA A Practical Guide to Patrimonial Litigation in Divorce Actions (loose-leaf) Durban:
LexisNexis, 1999
Van Schalkwyk LN Huweliksreg-bronnebundel Kenwyn: Juta, 1992
Van Wyk D, Dugard J, De Villiers B and Davis D (eds) Rights and Constitutionalism: The New
South African Legal Order Cape Town: Juta, 1994
Van Zyl L Divorce Mediation and the Best Interests of the Child Pretoria: HSRC, 1997
Van Zyl L Handbook of the South African Law of Maintenance 3rd edn, Durban: LexisNexis, 2010
Van Zyl LJ Alternative Dispute Resolution in the Best Interests of the Child PhD thesis, Rhodes Uni-
versity, 1994
Viljoen F (ed) (assisted by Njau J) Beyond the Law: Multidisciplinary Perspectives on Human Rights
Pretoria: Pretoria University Law Press, 2012
Visser D Unjustified Enrichment Lansdowne: Juta, 2008
Visser PJ and Potgieter JM Introduction to Family Law 2nd edn, Kenwyn: Juta, 1998
Voet J Commentarius ad Pandectas Lugduni Batavorum: J Verbessel, 1698–1704
Wille’s Principles of South African Law see Du Bois F et al
 TABLE OF CASES

Page
AB, Ex parte 1910 TPD 1332 ........................................................................................... 13, 42, 195
ABSA Bank Ltd t/a Trust Bank v Goosen 1998 (2) SA 550 (W) ................................................. 82
AD and DD v DW (The Centre for Child Law (Amicus Curiae) and
The Department of Social Development (Intervening Party)) 2008 (4) BCLR
359 (CC) (also reported as AD v DW (Centre for Child Law as Amicus Curiae;
Department for Social Development as Intervening Party) 2008 SA 183 (CC)) .................. 330
Ahlers, Ex parte 1946 TPD 686 ............................................................................................... 79, 80
Alexkor Ltd v Richtersveld Community 2003 (12) BCLR 1301 (CC),
2004 (5) SA 460 (CC) ............................................................................................................... 222
Allcock v Allcock 1969 (1) SA 427 (N) ......................................................................................... 19
Allsop v McCann 2001 (2) SA 706 (C)........................................................................ 290, 302, 303
Ally v Dinath 1984 (2) SA 451 (T) ...................................................................................... 258, 259
AM v JM 2011 JDR 0091 (WCC) .................................................................................................... 97
AM v RM 2010 (2) SA 223 (ECP) ................................................................................ 199, 245, 250
Amalgamated Bank of South Africa Bpk v Lydenburg Passasiersdienste
1995 (3) SA 314 (T).................................................................................................................... 77
Amalgamated Banks of South Africa Bpk v De Goede [1997] 2 All SA 427 (SCA),
1997 (4) SA 66 (SCA) ..................................................................................................... 72, 74, 77
Amar v Amar [1999] 2 All SA 376 (W), 1999 (3) SA 604 (W) .......................................... 125, 126
Amod (born Peer) v Multilateral Motor Vehicle Accidents Fund (Commission
for Gender Equality Intervening) [1999] 4 All SA 421 (SCA),
1999 (4) SA 1319 (SCA) ................................................................................... 244, 245, 250, 263
Amra v Amra 1971 (4) SA 409 (D)................................................................................................ 42
Andrade v Andrade 1982 (4) SA 854 (O) .................................................................................. 199
Andrews v Narodien 2002 (1) SACR 336 (C) (also reported as Narodien v Andrews
2002 (3) SA 500 (C)) ........................................................................................................ 275, 276
Annabhay v Ramlall 1960 (3) SA 802 (N) .................................................................................. 110
Archer v Archer 1989 (2) SA 885 (E) ......................................................................... 146, 154, 162
Arendse v Roode 1989 (1) SA 763 (C) ......................................................................................... 34
AS v CS 2011 (2) SA 360 (WCC) ................................................................................................. 212
Aschen’s Executrix v Blythe (1886) 4 SC 136............................................................................... 84
Asinovsky v Asinovsky 1943 CPD 131 ............................................................................................ 42
Atkin v Estate Bowmer 1913 CPD 505 ........................................................................................ 211
AV v CV 2011 (6) SA 189 (KZP) .................................................................................. 158, 160, 162

B v B 1964 (1) SA 717 (T) ............................................................................................................. 36

B v B 1983 (1) SA 496 (N) ............................................................................................................. 19
B v B [1999] 2 All SA 289 (SCA) (also reported as Bursey v Bursey
1999 (3) SA 33 (SCA)) ....................................................................... 36, 187, 189, 304, 351, 352
B v B 2008 (4) SA 535 (W)................................................................................................... 277, 330
B v G 2012 (2) SA 329 (GSJ) ....................................................................................................... 343
B v M [2006] 3 All SA 109 (W), 2006 (9) BCLR 1034 (W) ................................ 172, 182, 294, 327
367
368 South African Family Law

Page
B v S 1995 (3) SA 571 (A) ............................................................................................................ 329
B v S [2006] 4 All SA 515 (SCA), 2006 (5) SA 540 (SCA) ................................................. 190, 342
Baadjies v Matubela [2002] 2 All SA 623 (W), 2002 (3) SA 427 (W) ....................... 198, 199, 233
Baart v Malan 1990 (2) SA 862 (E) ............................................................................................. 189
Badenhorst v Badenhorst 1964 (2) SA 676 (T)............................................................................ 58
Badenhorst v Badenhorst [2006] 2 All SA 363 (SCA), 2006 (2) SA 255 (SCA) ....... 144, 148, 152
Badenhorst v Bekker 1994 (2) SA 155 (N) ................................................................................... 66
Balchund, Ex parte 1991 (1) SA 479 (D) ..................................................................................... 19
Balsillie, Ex parte 1928 CPD 218 ................................................................................................... 89
Bam v Bhabha 1947 (4) SA 798 (A) ........................................................................................ 38, 39
Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae)
2003 (2) BCLR 111 (CC), 2003 (2) SA 363 (CC) ......................................... 54, 56, 57, 126, 305
Barkhan v Barkhan 1960 (4) SA 288 (W) ..................................................................................... 65
Barnard v Miller 1963 (4) SA 426 (C) ........................................................................................ 350
Barnard v Van der Merwe 2012 (3) SA 304 (GNP)............................................................ 115, 116
Barnes v Union and South West Africa Insurance Co Ltd 1977 (3) SA 502 (E) ..................... 310
Barnett v Rudman 1934 AD 203 .................................................................................................... 64
Bath v Bath [2014] JOL 31724 (SCA) ........................................................................................... 96
BC v CC 2012 (5) SA 562 (ECP) ................................................................................................. 149
Beaumont v Beaumont 1985 (4) SA 171 (W) ............................................................................ 151
Beaumont v Beaumont 1987 (1) SA 967 (A) .................................... 138, 139, 143, 144, 146, 147,
........................................................................................................... 151, 153, 154, 158, 160, 162
Behr v Minister of Health 1961 (1) SA 629 (SR) ............................................................. 45, 46, 48
Beira v Beira 1990 (3) SA 802 (W) ...................................................................................... 148, 150
Bell v Bell 1991 (4) SA 195 (W) .................................................................................................. 140
Bell, Ex parte 1991 (2) SA 109 (T) ............................................................................................. 359
Benjamin v Salkander (1908) 25 SC 512 ...................................................................................... 24
Berkowitz v Berkowitz 1956 (3) SA 522 (SR) ..................................................................... 125, 126
Bertie van Zyl (Pty) Ltd v Minister for Safety and Security 2009 (10) BCLR 978 (CC),
2010 (2) SA 181 (CC) ................................................................................................................. 23
Best v Samuel Fox Co Ltd 1957 (2) KB 639.................................................................................. 42
Bester v Calitz 1982 (3) SA 864 (O) .............................................................................................. 42
Bestuursliggaam van Gene Louw Laerskool v Roodtman [2003] 1 All SA 87 (C)
(also reported as Governing Body, Gene Louw Primary School v Roodtman
2004 (1) SA 45 (C)) .................................................................................................. 302, 308, 309
Bethell v Bland 1996 (2) SA 194 (W) ......................................................................................... 329
Bezuidenhout v ABSA Versekeringsmaatskappy Bpk Case 40688/2000, 26
February 2008 (T) (unreported) ............................................................................................. 264
Bezuidenhout v Bezuidenhout [2003] 3 All SA 82 (C), 2003 (6) SA 691 (C) ......................... 153
Bezuidenhout v Bezuidenhout [2004] 4 All SA 487 (SCA),
2005 (2) SA 187 (SCA) ..................................................................... 144, 145, 147, 152, 153, 154
Bhe v Magistrate, Khayalitsa (Commission for Gender Equality as Amicus Curiae) ............... 222
Bing and Lauer v Van den Heever 1922 TPD 279 ........................................................... 46, 47, 48
Blatchford v Blatchford’s Executors (1861) 1 EDC 365 ........................................................ 64, 69
Blignaut, Ex parte 1963 (4) SA 36 (O) ......................................................................................... 86
Bond v Bond [2009] JOL 23915 (C)................................................................................... 164, 165
Bongers v Bongers 1965 (2) SA 82 (O) ...................................................................................... 184
Booysen v Minister of Home Affairs 2001 (4) SA 485 (CC) ........................................................ 44
Bopape v Moloto [1999] 4 All SA 277 (T), 2000 (1) SA 383 (T) .......................................... 77, 79
Bordihn v Bordihn 1956 (2) PH B32 (A) ................................................................................... 304
Boshoff , Ex parte 1912 OPD 32 ................................................................................................... 25
Botha v Botha 2005 (5) SA 228 (W) ................................................................................... 164, 165
Botha v Botha [2006] 2 All SA 221 (SCA), 2006 (4) SA 144 (SCA).......................................... 136
Botha v Botha 2009 (3) SA 89 (W) ..................................................... 157, 158, 159, 160, 161, 162
 Table of cases 369

Page
Botha v Deetlefs 2008 (3) SA 419 (N) ........................................................................................ 259
Bouwer, Ex parte 1954 (2) PH B21 (W) ....................................................................................... 23
BP Southern Africa (Pty) Ltd v Viljoen 2002 (5) SA 630 (O) ............................................... 69, 70
Brandtner v Brandtner 1999 (1) SA 866 (W) ............................................................................. 128
Brink v Brink 1983 (3) SA 217 (D) ............................................................................. 160, 163, 164
Brink v Kitshoff 1996 (6) BCLR 752 (CC), 1996 (4) SA 197 (CC) ..................................... 65, 126
Brown v Abrahams [2004] 1 All SA 401 (C), 2004 (4) BCLR 349 (C) ............ 175, 342, 343, 347
Brummund v Brummund’s Estate 1993 (2) SA 494 (NmHC) .............................................. 61, 62
Brunette v Brunette 2009 (5) SA 81 (SE) ................................................................................... 148
Bruwer v Joubert 1966 (3) SA 334 (A) .......................................................................................... 42
Buck v Buck 1974 (1) SA 609 (R) ........................................................................................... 57, 58
Buffalo City Municipality v Smith [2009] ZAECGHC 81 (23 November 2009) ......................... 93
Buffel v Buffel 1989 (2) SA 771 (NC) ......................................................................................... 120
Bull v Taylor 1965 (4) SA 29 (A) ........................................................................................... 7, 8, 10
Bullard, Ex parte 1937 TPD 297.................................................................................................... 86
Burger v Burger 2006 (4) SA 414 (D) ........................................................................................... 55
Burger, Ex parte 1995 (1) SA 140 (D) ................................................................................ 107, 108
Butcher v Butcher 2009 (2) SA 421 (C) ............................................................. 159, 187, 188, 200
Butters v Mncora [2012] 2 All SA 485 (SCA), 2012 (4) SA 1 (SCA)......................... 110, 257, 258
Buttner v Buttner [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA) ...... 143, 144, 146, 148, 153
................................................................................................................... 154, 158, 160, 163, 164

C v C 1958 (3) SA 574 (SR) ........................................................................................................... 91

C v Department of Health and Social Development, Gauteng
2012 (4) BCLR 329 (CC), 2012 (2) SA 208 (CC) ........................................................... 335, 336
C v T 1965 (2) SA 239 (O)....................................................................................................... 19, 85
Caesar v Caesar 1973 (2) SA 760 (R) .......................................................................................... 163
Carelse v Estate De Vries (1906) 23 SC 532 .......................................................................... 10, 350
Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies
Intervening) 2001 (10) BCLR 995 (CC), 2001 (4) SA 938 (CC) .......................................... 282
Carstens v Carstens 1985 (2) SA 351 (SE) .................................................................................. 199
Cary v Cary [1999] 2 All SA 71 (C), 1998 (8) BCLR 877 (C), 1999 (3) SA 615 (C) ................ 200
Cassim v Cassim (Part A) Case 3954/06 (T) 15 December 2006 (unreported) .............. 245, 250
Cattle Breeders Farm (Pvt) Ltd v Veldman 1973 (2) PH B14 (R) .............................................. 58
CC v MVC [2013] 4 All SA 327 (GSJ), 2014 (2) SA 430 (GJ) .................................... 124, 146, 151
Central Authority (South Africa) v A 2007 (5) SA 501 (W) ...................................... 342, 344, 348
Central Authority for the Republic of South Africa v ER [2014] JOL 31502
(GNP) ........................................................................................................................................ 342
Central Authority of the Republic of South Africa v B [2012] 3 All SA 95 (GSJ),
2012 (2) SA 296 (GSJ) .............................................................................................................. 347
Central Authority of the Republic of South Africa v LG 2011 (2) SA 386 (GNP) ........... 342, 344
Central Authority v B 2009 (1) SA 624 (W) ....................................................................... 342, 344
Central Authority v H 2008 (1) SA 49 (SCA) ............................................................. 344, 345, 348
Central Authority v MR (LS Intervening) [2011] 2 All SA 438 (GNP),
2011 (2) SA 428 (GNP) ............................................................................................................ 342
Central Authority, RSA v OCI [2010] JOL 25947 (GSJ) ............................................................ 342
Centre for Child Law v MEC for Education, Gauteng 2008 (1) SA 223 (T) ............................ 291
Centre for Child Law v Minister of Home Affairs 2005 (6) SA 50 (T) ............................. 291, 294
Centre for Child Law v Minister of Justice and Constitutional Development
2009 (11) BCLR 1105 (CC), 2009 (6) SA 632 (CC) ............................................................... 294
370 South African Family Law

Page
Centre for Child Law v Minister of Social Development
2014 (1) SA 468 (GNP) ............................................................................ 266, 317, 318, 321, 350
Chairperson of the Constitutional Assembly: In re Certification of the
Constitution of the Republic of South Africa, 1996, Ex parte 1996 (10) BCLR
1253 (CC), 1996 (4) SA 744 (CC) ............................................................................................. 43
Chamani v Chamani 1979 (4) SA 804 (W) ................................................................... 46, 199, 304
Chaplin v Gregory 1950 (3) SA 555 (C) ..................................................................................... 261
Chater, Ex parte 1942 OPD 106 .................................................................................................... 84
Cheng, Ex parte; Ex parte Cheng; Ex parte Yang 2004 (1) SA 118 (W) .................................... 84
Chenille Industries v Vorster 1953 (2) SA 691 (O) ..................................................................... 48
Chief Family Advocate v G 2003 (2) SA 599 (W) ............................................... 341, 343, 344, 348
Childs v Childs 2003 (3) SA 138 (C) ........................................................................... 144, 152, 153
Chizengeni v Chizengeni 1989 (1) SA 454 (Z) .......................................................................... 165
Christian Education South Africa v Minister of Education
2000 (10) BCLR 1051 (CC), 2000 (4) SA 757 (CC) ....................................................... 292, 294
Christian Lawyers Association of South Africa v The Minister of Health
(Reproductive Health Alliance as Amicus Curiae) 2005 (1) SA 509 (T) .............................. 333
Christian Lawyers’ Association v Minister of Health [2004] 4 All SA 31 (T),
2004 (10) BCLR 1086 (T) ........................................................................................................ 333
Claassen v Quenstedt [2014] JOL 32686 (ECP) ........................................................................ 257
Claassen v Van der Watt 1969 (3) SA 68 (T) ............................................................................ 6, 10
Clarke v Hurst 1992 (4) SA 630 (D) ........................................................................................... 357
Cloete v Cloete Case CA 52/2009, 10 December 2009 (ECGD) (unreported) ......................... 78
Cloete v Maritz (6222/2010, 16433/2012) [2014] ZAWCHC 108 (13 June 2014) ..... 7, 258, 259
Cloete v Maritz 2013 (5) SA 448 (WCC)..................................................................................... 8, 9
Clutton v Clutton 1929 EDL 174 ................................................................................................. 185
CM v NG [2012] 3 All SA 104 (WCC), 2012 (4) SA 452 (WCC) ....................................... 315, 316
Coertzen, Ex parte 1986 (2) SA 108 (O) .................................................................................... 107
Coetzee v Coetzee 1982 (1) SA 933 (C) ....................................................................................... 58
Coetzee v Coetzee 1991 (4) SA 702 (C) ..................................................................................... 120
Coetzee v Meintjies 1976 (1) SA 257 (T) .................................................................................... 349
Cohen v Cohen 2003 (3) SA 337 (SCA) ..................................................................................... 164
Cohen v Sytner (1897) 14 SC 13 ..................................................................................... 19, 41, 193
Colly v Colly’s Estate 1946 WLD 83 ............................................................................................. 167
Colman v Colman 1967 (1) SA 291 (C)...................................................................................... 199
Comerma v Comerma 1938 TPD 220 ........................................................................................... 66
Confirmation of Three Surrogate Motherhood Agreements, In re 2011 (6) SA 22 (GSJ) ..... 311
Cool Ideas 1186 CC v Hubbard 2014 (4) SA 474 (CC) ......................................................... 22, 23
Coovadia, Ex parte 1960 (2) SA 773 (W) ..................................................................................... 84
Copelowitz v Copelowitz 1969 (4) SA 64 (C) ............................................................................. 168
Corporate Liquidators (Pty) Ltd v Wiggill [2006] 4 All SA 439 (T),
2007 (2) SA 520 (T)............................................................................................................ 63, 109
Corris v Corris 1997 (2) SA 930 (W) ........................................................................................... 182
Coughlan v Road Accident Fund [2015] ZACC 9 (20 April 2015) ................................... 294, 305
Cradock v Estate Cradock 1949 (3) SA 1120 (N)......................................................................... 88
Critchfield, Ex parte [1999] 1 All SA 319 (W), 1999 (3) SA 132 (W) ...................... 172, 174, 181
Cullammah v Munean 1941 NPD 163..................................................................................... 79, 80
Cumming v Cumming 1984 (4) SA 585 (T)................................................................................. 87
Cunningham (born Ferreira) v Pretorius [2010] JOL 25638 (GNP) ............................... 326, 327
Currie v Currie 1942 NPD 362 ...................................................................................................... 42

D v D 1964 (3) SA 598 (E) ............................................................................................................. 36

D v L 1990 (1) SA 894 (W) .......................................................................................................... 306
Daniels v Campbell 2004 (7) BCLR 735 (CC), 2004 (5) SA 331 (CC) ..... 243, 246, 247, 249, 250
 Table of cases 371

Page

Danielz v De Wet 2009 (6) SA 42 (C) ................................................................................... 63, 115

Davel v Swanepoel 1954 (1) SA 383 (A) ............................................................................... 7, 8, 10
Davids v Davids 1991 (4) SA 191 (W) ......................................................................................... 174
Davis v Davis 1993 (1) SA 621 (C) ....................................................................................... 165, 166
Davis v Trustee of Minors Brisley (1901) 18 SC 407 .................................................................... 79
Davis, Ex parte 1957 (4) SA 594 (T) ............................................................................................. 86
Davy v Douglas 1999 (1) SA 1043 (N) ........................................................................................ 330
Dawe v Dawe 1980 (1) SA 141 (Z) .............................................................................................. 165
Dawn v Dawn 1968 (1) PH B3 (D) .............................................................................................. 185
Dawood v Minister of Home Affairs 2000 (8) BCLR 837 (CC),
2000 (3) SA 936 (CC) ................................................................................................... 43, 44, 262
Dawson v Dawson (1892) 9 SC 446 ............................................................................................. 137
De Beer, Ex parte 1952 (3) SA 288 (T) ...................................................................................... 136
De Greeff v De Greeff 1982 (1) SA 882 (O) ................................................................................. 19
De Klerk, Ex parte 1968 (4) SA 130 (C) ..................................................................................... 358
De Kock v Jacobson 1999 (4) SA 346 (W) .................................................................................. 133
De Reuck v Director of Public Prosecutions (Witwatersrand Local Division)
2003 (12) BCLR 1333 (CC), 2004 (1) SA 406 (CC), 2003 (2) SACR 445 (CC) ........... 173, 295
DE v RH 2015 (9) BCLR 1003 (CC) ............................................................................................. 42
De Vries v De Vries Case 307/2003, 2541/03, 10 October 2007 (C) (unreported) ................ 141
De Wet v Jurgens 1970 (3) SA 38 (A) ............................................................................... 62, 66, 67
DEB v MGB [2013] JOL 30489B (KZD) ..................................................................................... 295
Desco v Santich (1907) 17 CTR 165 ............................................................................................. 10
Dhanabakium v Subramanian 1943 AD 160 ...................................................................... 356, 358
Dhanwanthi v Shanduth 1961 (2) SA 692 (N) ........................................................................... 130
Di Bona v Di Bona 1993 (2) SA 682 (C) ............................................................. 183, 190, 191, 342
Dickinson v Dickinson 1981 (3) SA 856 (W).............................................................................. 123
Dineen, Ex parte 1955 (4) SA 49 (O) ..................................................................................... 23, 86
Dique v Van der Merwe [2001] 2 All SA 289 (T), 2001 (2) SA 1006 (T) ..................... 57, 58, 193
Director of Public Prosecutions, KwaZulu-Natal v P 2006 (3) SA 515 (SCA) .................. 288, 294
Director of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development 2009 (7) BCLR 637 (CC), 2009 (4) SA 222 (CC) .................. 294
Distillers Corporation Ltd v Modise 2001 (4) SA 1071 (O) ........................................................ 76
Dodo v Dodo 1990 (2) SA 77 (W)................................................................................. 46, 199, 200
Dormell Properties 282 CC v Bamberger (20191/14) [2015] ZASCA 89 (29 May 2015) ......... 75
Douglas v Douglas [1996] 2 All SA 1 (A).................................................................................... 304
Dow, Ex parte 1987 (3) SA 829 (D) .......................................................................... 31, 32, 33, 210
Dreyer v Lyte-Mason 1948 (2) SA 245 (W) ................................................................................. 302
Drummond v Drummond 1979 (1) SA 161 (A) ........................................................................ 166
DS v RM 2015 (3) SA 424 (WCC) ....................................................................................... 128, 129
Du Plessis v Du Plessis 1976 (1) SA 284 (W) ................................................................................ 58
Du Plessis v Pienaar [2002] 4 All SA 311 (SCA), 2003 (1) SA 671 (SCA) ...................... 63, 66, 67
Du Plessis v Road Accident Fund 2003 (11) BCLR 1220 (SCA),
2004 (1) SA 359 (SCA) ............................................................................. 260, 263, 264, 266, 267
Du Preez v Conradie 1990 (4) SA 46 (B) ................................................................................... 302
Du Preez v Du Preez 1969 (3) SA 529 (D) ................................................................................. 184
Du Preez v Du Preez 2009 (6) SA 28 (T) .................................................................................... 199
Du Randt v Du Randt 1995 (1) SA 401 (O) ................................................................................. 58
Du Toit v Du Toit 1991 (3) SA 856 (O)...................................................................................... 304
Du Toit v Minister for Welfare and Population Development
2002 (10) BCLR 1006 (CC), 2003 (2) SA 198 (CC) ................. 43, 262, 265, 267, 291, 292, 295
Du Toit v Thomas [2015] JOL 33337 (WCC) .............................................................................. 49
Du Toit, Ex parte 1953 (4) SA 130 (O) ........................................................................................ 86
372 South African Family Law

Page
Du Toit: In re Curatorship Estate Schwab, Ex parte 1968 (1) SA 33 (T) ................................. 359
Duffy v Duffy [2012] 4 All SA 607 (SCA) .................................................................................... 273
Duncan v Coetzee [2012] ZAECPEHC 71 (25 September 2012) ............................................. 185
Duncan v Willson (1906) 27 NLR 624 ............................................................................................ 6
Dunn, Ex parte 1989 (2) SA 429 (NC) ......................................................................................... 89

EA v EC (09/25924) [2012] ZAGPJHC 219 (25 October 2012) ......................................... 88, 110
Edelstein v Edelstein 1952 (3) SA 1 (A) ..................................................................... 61, 86, 88, 91
Edge v Murray 1962 (3) SA 603 (W) ........................................................................................... 184
Efron, Ex parte 1940 CPD 199 ...................................................................................................... 32
EH v SH 2012 (4) SA 164 (SCA) ......................................................................... 157, 158, 166, 200
Eilon v Eilon 1965 (1) SA 703 (A) .............................................................................................. 329
Elesang v PPC Lime Ltd 2007 (6) SA 328 (NC) ......................................................................... 133
Engar and Engar v Desai 1966 (1) SA 621 (T) ..................................................................... 39, 302
Engelbrecht v Engelbrecht 1989 (1) SA 597 (C) ............................................................... 135, 136
Engelbrecht v Senwes Ltd 2007 (3) SA 29 (SCA) ...................................................................... 129
Engelbrecht, Ex parte 1986 (2) SA 158 (NC) .................................................................... 106, 107
Erasmus v Kemp In re Minor Child Kemp [2009] JOL 24294 (T) ........................................... 329
Eskom Pension and Provident Fund v Krugel 2012 (6) SA 143 (SCA) .................................... 132
Estate De Klerk v Rowan 1922 EDL 334 ....................................................................................... 67
Estate Sayle v Commissioner for Inland Revenue 1945 AD 388 ............................. 62, 70, 79, 115
Estate Visser, In re 1948 (3) SA 1129 (C) ................................................................................... 350
Esterhuizen v Esterhuizen 1999 (1) SA 492 (C) ........................................................................ 140
Ex parte Coetzee 1984 (2) SA 363 (W) ................................................................................ 90, 107
Excell v Douglas 1924 CPD 472 ............................................................................................... 45, 46
Executors Estate Everard, Ex parte 1938 TPD 190 ...................................................................... 89

F v F [2006] 1 All SA 571 (SCA), 2006 (3) SA 42 (SCA) ................................................... 326, 327
F v L 1987 (4) SA 525 (W) ................................................................................................... 346, 348
F, Ex parte 1963 (1) PH B9 (N) .................................................................................................... 18
Family Advocate Port Elizabeth v Hide [2007] 3 All SA 248 (SE) .................................... 346, 348
Family Advocate v B [2007] 1 All SA 602 (SE) ........................................................................... 346
Family Advocate, Cape Town v EM 2009 (5) SA 420 (C) .................................................. 344, 348
Fanti v Boto 2008 (5) SA 405 (C) ................................................................................................ 218
Faro v Bingham [2013] ZAWCHC 159 (25 October 2013) ....................................................... 242
Farr v Mutual & Federal Insurance Co Ltd 2000 (3) SA 684 (C) ..................................... 261, 264
FB v MB 2012 (2) SA 394 (GSJ) .......................................................................................... 293, 300
Fink v Fink 1945 WLD 226............................................................................................. 89, 110, 111
Fish Hoek Primary School v GW [2010] 2 All SA 124 (SCA),
2010 (4) BCLR 331 (SCA), 2010 (2) SA 141 (SCA) ............................................... 302, 303, 308
Fitzgerald v Green 1911 EDL 432 ............................................................................................... 211
Fitzgerald v Rex 1926 NPD 445 ..................................................................................................... 67
Fletcher v Fletcher 1984 (1) SA 130 (A) ..................................................................................... 172
FN v MN [2014] JOL 32412 (GJ) ................................................................................................ 199
Ford v Ford [2004] 2 All SA 396 (W) .......................................................................................... 326
Ford v Ford 1965 (1) SA 264 (D) ........................................................................................ 163, 164
Forssman v Forssman [2007] 4 All SA 1148 (W), 2008 (2) SA 144 (W) ................................... 304
Fose v Minister of Safety and Security 1997 (7) BCLR 851 (CC), 1997 (3) SA 786 (CC) ......... 54
Fosi v Road Accident Fund 2008 (3) SA 560 (C) ....................................................................... 310
Fourie v Minister of Home Affairs 2005 (3) BCLR 241 (SCA),
2005 (3) SA 429 (SCA) ..................................................................................................... 212, 213
Francescutti v Francescutti; Ex parte Francescutti 2005 (2) SA 442 (W) ................................... 15
Frankel’s Estate v The Master 1950 (1) SA 220 (A) ....................................................... 61, 62, 212
Fraser v Naudé 1998 (11) BCLR 1357 (CC), 1999 (1) SA 1 (CC) .................................... 294, 296
 Table of cases 373

Page
Friedman v Harris 1928 CPD 43...................................................................................................... 6
Fritz v Fundsatwork Umbrella Pension Fund 2013 (4) SA 492 (ECP) ..................................... 131

Gabergas v Gabergas 1921 EDL 279 ............................................................................................. 35

Gaza v Road Accident Fund Case 419/2006, 19 November 2007 (SCA)
(unreported) ............................................................................................................................. 235
Geldenhuys v Meyers Case 556/96, 19 July 1996 (SEC) (unreported) .................................... 167
Georghiades v Janse van Rensburg 2007 (3) SA 18 (C) ............................................ 164, 165, 166
Gerber v Gerber and Pocock Cases 12166/07 and 12691/07, 8 November 2007
(C) (unreported) ........................................................................................................................ 55
Germani v Herf 1975 (4) SA 887 (A) .................................................................................. 190, 302
Girdwood v Girdwood 1995 (4) SA 698 (C) ............................................................................... 166
Glass v Glass 1980 (3) SA 263 (W) ................................................................................................ 58
Glazer v Glazer 1959 (3) SA 928 (W) .......................................................................................... 200
Gliksman v Talekinsky 1955 (4) SA 468 (W) .............................................................. 305, 351, 352
GM v KI 2015 (3) SA 62 (GJ)............................................................................................... 302, 331
Godbeer v Godbeer 2000 (3) SA 976 (W) .................................................................................. 326
Godfrey v Campbell 1997 (1) SA 570 (C) .................................................................................... 70
Gold v Gold 1975 (4) SA 237 (D) ............................................................................................... 352
Gordon v Barnard 1977 (1) SA 887 (C) ..................................................................................... 349
Gory v Kolver (Starke Intervening) 2007 (3) BCLR 249 (CC),
2007 (4) SA 97 (CC) ................................................................................................. 266, 267, 268
Gounden v Master of the High Court [2015] JOL 32896 (KZD) ............................................... 74
Gounder v Top Spec Investments (Pty) Ltd [2008] 3 All SA 376 (SCA),
2008 (5) SA 151 (SCA) ............................................................................................................... 72
Govender v Chetty 1982 (3) SA 1078 (C) ..................................................................................... 79
Govender v Maitin 2008 (6) SA 64 (D)......................................................................................... 76
Govender v Ragavayah (Women’s Legal Centre Trust as Amicus Curiae)
[2009] 1 All SA 371 (D), 2009 (3) SA 178 (D) ....................................................................... 249
Governing Body, Gene Louw Primary School v Roodtman 2004 (1) SA 45 (C) ..... 302, 308, 309
Governing Body, Hoërskool Fochville v Centre for Child Law 2014 (6) SA 561 (GJ) ............ 294
Government Employees Pension Fund v Naidoo [2006] 3 All SA 332 (SCA),
2006 (6) SA 304 (SCA) ............................................................................................................. 133
Government of the Republic of South Africa v Grootboom
2000 (11) BCLR 1169 (CC), 2001 (1) SA 46 (CC) ................................................................. 289
Granoth v Granoth 1983 (4) SA 50 (C) ...................................................................................... 195
Grasso v Grasso 1987 (1) SA 48 (C) .................................................................... 137, 158, 159, 160
Grauman v Grauman 1984 (3) SA 477 (W)................................................................................ 199
Greenspan v Greenspan 2000 (2) SA 283 (C)............................................................ 162, 199, 200
Greyling v Minister of Welfare and Population Development Case 98/08197 (W)
(unreported) ............................................................................................................................. 186
Grimbeek v The Master 1926 CPD 183....................................................................................... 115
Grobbelaar v Grobbelaar Case 26600/98 (T) (unreported) .................................................... 148
Grobbelaar v Havenga 1964 (3) SA 522 (N) ................................................................................ 42
Grobbelaar v Van der Vyver 1954 (1) SA 248 (A) ........................................................................ 88
Groves v Baillie 1942 WLD 34 ..................................................................................................... 310
Guggenheim v Rosenbaum 1961 (4) SA 21 (W)........................................................................ 7, 8
Gugu v Zongwana [2014] 1 All SA 203 (ECM) .............................................. 62, 71, 109, 130, 193
Gumbi v Goba [2011] JOL 26631 (KZP) .................................................................................... 191
Gumede v President of the Republic of South Africa 2009 (3) BCLR 24 (CC),
2009 (3) SA 152 (CC) ....................................................................... 142, 169, 221, 222, 230, 231

H v Fetal Assessment Centre 2015 (2) BCLR 127 (CC), 2015 (2) SA 193 (CC) ...................... 294
H v I 1985 (3) SA 237 (C) ............................................................................................................ 349
374 South African Family Law

Page
H v R 2001 (3) SA 623 (C)........................................................................................................... 326
Haines v Haines Case 1683/1991 (C) (unreported) ................................................................. 140
Hancock v Hancock 1957 (2) SA 500 (C) .................................................................................. 165
Harksen v Lane 1997 (11) BCLR 1489 (CC), 1998 (1) SA 300 (CC) ........................... 23, 43, 142
Hart v Yates (1896) 3 Off Rep 201 .................................................................................................. 6
Haskins v Wildgoose [1996] 3 All SA 446 (T) ............................................................................ 322
Hassam v Jacobs [2008] 4 All SA 350 (C) ........................................................................... 234, 250
Hassam v Jacobs 2009 (5) SA 572 (CC) ...................................................... 169, 243, 246, 247, 250
Hattingh v Juta 2013 (5) BCLR 509 (CC), 2013 (3) SA 275 (CC) .............................................. 43
Hay v B 2003 (3) SA 492 (W) .............................................................................................. 295, 329
Head of Mpumalanga Department of Education v Hoërskool Ermelo
2010 (3) BCLR 177 (CC) ......................................................................................................... 294
Hees v Southern Life Association Ltd [2000] 1 All SA 327 (W), 2000 (1) SA 943 (W) ............ 63
Heinrich v Heinrich 1968 (2) PH B9 (SWA) ............................................................................. 165
Henning v Henning 1975 (2) SA 787 (O).................................................................................. 199
Hepburn v Miller [2008] JOL 21354 (W) .................................................................................. 191
Herfst v Herfst 1964 (4) SA 127 (W) .................................................................................. 187, 308
Hersch, Ex parte 1946 TPD 548 .................................................................................................... 84
Heynike v Roets [2001] 2 All SA 75 (C) .................................................................................... 326
Heystek v Heystek [2002] 2 All SA 401 (T), 2002 (2) SA 754 (T) .................... 289, 290, 304, 307
HG v CG 2010 (3) SA 352 (ECP) ................................................................................ 301, 303, 327
Hill, Ex parte 1970 (3) SA 411 (C) ..................................................................................... 357, 358
Hodges v Coubrough 1991 (3) SA 58 (D) .................................................................. 167, 168, 169
Hodgkinson v Hodgkinson 1949 (1) SA 51 (E) ......................................................................... 184
Holland v Holland 1973 (1) SA 897 (T)....................................................................................... 13
Honey v Honey 1992 (3) SA 609 (W) ............................................................... 84, 88, 92, 105, 110
Hoosein v Dangor [2010] 2 All SA 55 (WCC), 2010 (4) BCLR 362 (WCC) ............ 199, 245, 250
Hotz v Hotz 2002 (1) SA 333 (W) ............................................................................................... 165
Howells v S [1999] 2 All SA 239 (C) ................................................................................... 291, 294
Hoyi v Hoyi 1994 (1) SA 89 (E) .................................................................................................. 184
Hughes v The Master 1960 (4) SA 936 (C) ........................................................................ 166, 167
Hugo, Ex parte 1960 (1) SA 773 (T) ............................................................................................ 44
Hulett, Ex parte 1968 (4) SA 172 (D) ......................................................................................... 359
Hurn v Hurn 1978 (3) SA 252 (E) .............................................................................................. 163

I v S 2000 (2) SA 993 (C) ............................................................................................................. 185

Inkley and Inkley, Ex parte 1995 (3) SA 528 (C) ............................................................... 124, 195
Investec Bank Ltd v Naidoo DCLD Case no 9640/98 (unreported) .......................................... 75
Iroabuchi, Ex parte 2004 (1) SA 109 (W) .................................................................................... 84
Isaacs v Isaacs 1949 (1) SA 952 (C) ............................................................................. 111, 257, 259
Ismail v Ismail 1983 (1) SA 1006 (A) .......................................................................... 241, 244, 245

J v Director General, Department of Home Affairs 2003 (5) BCLR 463 (CC) ................ 265, 267
J v J 2008 (6) SA 30 (C) ................................................................................................ 302, 327, 329
J v National Director of Public Prosecutions (Childline South Africa and others
as Amici Curiae) 2014 (7) BCLR 764 (CC) .................................................................... 173, 296
JA v DA 2014 (6) SA 233 (GJ) ..................................................................................... 80, 97, 98, 99
Jackson v Jackson 2002 (2) SA 303 (SCA) .......................................................................... 176, 326
Jacobs v Road Accident Fund 2010 (3) SA 263 (ECP)............................................................... 310
Jacobs, Ex parte 1936 OPD 31 ..................................................................................................... 305
Jacobs, Ex parte 1982 (2) SA 276 (O)................................................................................. 351, 352
Jamalodeen v Moola Case 1835/06 (N) date unknown (unreported)............................. 245, 250
JC v DC 2014 (2) SA 138 (WCC) ................................................................................................. 342
JG v CG 2012 (3) SA 103 (GSJ) ........................................................................................... 188, 200
 Table of cases 375

Page
Jinnah v Laattoe 1981 (1) SA 432 (C) .......................................................................................... 19
JM v LM 2014 (2) SA 403 (WCC) .................................................................................................. 54
Joannou, Ex parte 1942 TPD 193 .................................................................................................. 89
Joffe v Joffe 1939 GWL 51 .............................................................................................................. 32
Johncom Media Investments Limited v M 2009 (8) BCLR 751 (CC),
2009 (4) SA 7 (CC) ........................................................................................................... 201, 295
Jonker v Manager, Gali Thembani/JJ Serfontein School [2013] JOL 30108 (E) .................... 300
Jonker v Stoffels [2010] JOL 25571 (NCK) ........................................................................ 190, 191
Jooste v Botha 2000 (2) BCLR 187 (T), 2000 (2) SA 199 (T) ........................................... 290, 294
Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour intervening)
1999 (2) BCLR 139 (CC), 1999 (2) SA 1 (CC) ....................................................................... 142
Jordaan v Jordaan 2001 (3) SA 288 (C) ...................................................................... 144, 148, 151
Joseph v Joseph 1951 (3) SA 776 (N) ......................................................................................... 115
Joshua v Joshua 1961 (1) SA 455 (GW) ........................................................................................ 36
Joubert v Joubert [2004] 1 All SA 426 (C) ................................................................. 152, 160, 161
JT v Road Accident Fund 2015 (1) SA 609 (GJ) ................................................................ 321, 322
JW v CW 2012 (2) SA 529 (NCK) .......................................................................................... 88, 110
JW v HW 2011 (6) SA 237 (GSJ) ................................................................................................. 128
JW v SW 2011 (1) SA 545 (GNP) ................................................................................. 134, 135, 136

K v K 1999 (4) SA 691 (C) ................................................................................... 191, 329, 341, 344

K v K 2008 (5) SA 431 (W) .................................................................................................. 174, 176
K v M [2007] 4 All SA 883 (E) ............................................................................................. 173, 181
Kajee, Ex parte 2004 (2) SA 534 (C) .......................................................................................... 329
Kalla v The Master 1994 (4) BCLR 79 (T), 1995 (1) SA 261 (T)...................................... 241, 247
Kambule v Master of the High Court [2007] 4 All SA 898 (C) (also reported as
Kambule v The Master 2007 (3) SA 403 (EC))............................................................... 235, 236
Kantor v Kantor 1962 (3) SA 207 (T) ........................................................................................... 87
Karbe, Ex parte 1939 WLD 351 ..................................................................................................... 85
Kastan v Kastan 1985 (3) SA 235 (C) .......................................................................................... 182
Katz v Katz [2009] JOL 23557 (GSJ) ................................................................................... 190, 326
Katz v Katz 1989 (3) SA 1 (A) .............................................................................. 144, 145, 147, 162
Katzenellenbogen v Katzenellenbogen and Joseph 1947 (2) SA 528 (W) ................................. 25
Kay v Kay 1961 (4) SA 257 (A) .................................................................................................... 137
Kedar, Ex parte 1993 (1) SA 242 (W) ......................................................................................... 329
Kemp v Kemp 1958 (3) SA 736 (D) .................................................................................... 189, 352
KG v CB 2012 (4) SA 136 (SCA) ................................................................................. 341, 344, 346
Kgopane v Kgopane (1819/2011) [2012] ZANWHC 58 (16 August 2012) ..................... 130, 134
Khan v Khan 2005 (2) SA 272 (T) ................................................................ 49, 157, 245, 247, 250
Khanyile v Minister of Safety and Security 2012 (2) SACR 238 (KZD) .................................... 276
Kilian v Kilian 1908 EDC 377 ........................................................................................................ 36
Kilroe v Kilroe 1928 WLD 112 ..................................................................................................... 137
Kilroe, Ex parte 1945 GWL 27....................................................................................................... 89
King v King 1947 (2) SA 517 (D) .................................................................................................. 42
Kirkland v Kirkland 2006 (6) SA 144 (C) ........................................... 144, 147, 148, 152, 154, 155
Kirsh v Kirsh [1999] 2 All SA 193 (C) ................................................................. 191, 329, 341, 344
Kleingeld v Heunis 2007 (5) SA 559 (T) .................................................................................... 329
Klerck v Klerck 1991 (1) SA 265 (W) .......................................................................................... 135
Kloosman, Ex parte 1947 (1) SA 342 (T) ............................................................................... 84, 85
KLVC v SDI [2015] 1 All SA 532 (SCA) ...................................................................................... 313
Knox D’Arcy Ltd v Jamieson 1996 (4) SA 348 (A) ..................................................................... 154
Kohn v Kohn 1914 WLD 9 ........................................................................................................... 137
Kommissaris van Binnelandse Inkomste v Steyn 1992 (1) SA 110 (A) ............................. 166, 168
Kooverjee v Kooverjee [2006] 4 All SA 369 (C), 2006 (6) SA 127 (C) ............. 160, 161, 162, 163
376 South African Family Law

Page
Kotze v Kotze 2003 (3) SA 628 (T) ..................................................................................... 128, 131
Kotzé v Oosthuizen 1988 (3) SA 578 (C) ............................................................................. 71, 115
Kougianos v Kougianos Case 957/93 (D) (unreported) ........................................................... 185
Kougianos v Kougianos Case AR926/94 (N) (unreported) ...................................................... 185
Koza v Koza 1982 (3) SA 462 (T) ................................................................................................ 137
Kramer v Findlay’s Executors (1878) Buch 51 ........................................................................... 350
Kretschmer v Kretschmer 1989 (1) SA 566 (W) ................................................................ 146, 154
Krige v Smit 1981 (4) SA 409 (C)................................................................................................ 123
Kritzinger v Kritzinger 1989 (1) SA 67 (A)......................................................... 144, 145, 146, 152
Kroon v Kroon 1986 (4) SA 616 (E) ................................................................................... 160, 161
Krös, Ex parte 1986 (1) SA 642 (NC) ................................................................................. 107, 109
Krugel v Krugel 2003 (6) SA 220 (T) .......................................................................................... 182
Kruger v Fourie 1969 (4) SA 469 (O) ........................................................................................... 19
Kruger v Goss [2010] 1 All SA 422 (SCA), 2010 (2) SA 507 (SCA) .................. 160, 167, 168, 169
Krull v Sangerhaus 1980 (4) SA 299 (E)......................................................................................... 6
KS v MS [2015] JOL 33262 (KZD) ................................................................................................ 98
Kustner v Hughes 1970 (3) SA 622 (W) ..................................................................................... 302

L v H 1992 (2) SA 594 (E) ........................................................................................................... 349

Laerskool Middelburg v Departementshoof, Mpumalanga Departement van Onderwys
2003 (4) SA 160 (T).................................................................................................................. 294
Lagesse v Lagesse 1992 (1) SA 173 (D) .................................................................... 83, 84, 92, 140
Lambrakis v Santam 2000 (3) SA 1098 (W) ............................................................................... 350
Lamprecht v Lamprecht 1948 (4) SA 416 (N) ............................................................................. 42
Land and Agricultural Bank of South Africa v Parker 2005 (2) SA 77 (SCA) ......................... 148
Landmann v Mienie 1944 OPD 59 .............................................................................................. 302
Lange v Lange 1945 AD 332 .......................................................................................................... 15
Langemaat v Minister of Safety and Security [1998] 2 All SA 259 (T),
1998 (4) BCLR 444 (T), 1998 (3) SA 312 (T) ................................................................ 263, 266
Latouf v Latouf [2001] 2 All SA 377 (T) .................................................................................... 326
Laws v Laws 1972 (1) SA 321 (W) ........................................................................................... 79, 80
Le Roux v Le Roux [2010] JOL 26003 (NCK) ..................................................................... 97, 151
Leask, Ex parte [2007] 4 All SA 1018 (D) .................................................................................. 318
Lebeloane v Lebeloane [2000] 4 All SA 525 (W) .............................................................. 127, 128
Leeb v Leeb [1999] 2 All SA 588 (N) ........................................................................... 79, 115, 136
Legal Aid Board v R 2009 (2) SA 262 (D) .................................................................................. 292
Leighton v Roos 1955 (4) SA 134 (N) .......................................................................................... 25
Lelie, Ex parte 1945 WLD 167....................................................................................................... 64
Lesbian and Gay Equality Project v Minister of Home Affairs
2006 (3) BCLR 355 (CC), 2006 (1) SA 524 (CC) ............................................. 13, 205, 206, 213
Levin v Levin 1960 (4) SA 469 (W) ............................................................................................... 65
Levin v Levin 1984 (2) SA 298 (C)................................................................................................ 51
Levy v Levy 1991 (3) SA 614 (A) ................................................................................................. 124
Lewies, Ex parte 1928 WLD 192 .................................................................................................... 25
LH v LA 2012 (6) SA 41 (ECG)................................................................................................... 315
Lincesso v Lincesso 1966 (1) SA 747 (W)................................................................................... 163
Litthauer v Litthauer 1973 (4) SA 290 (W) ................................................................................ 329
Lloyd v Menzies 1956 (2) SA 97 (N) ........................................................................................... 350
Lloyd v Mitchell [2004] 2 All SA 542 (C) ................................................................................... 6, 8
Lourens, Ex parte 1986 (2) SA 291 (C) ...................................................................................... 107
Louw, Ex parte (1907) 26 SC 350 ................................................................................................. 90
Lovell v Lovell 1980 (4) SA 90 (T) ................................................................................................ 58
LS v AT 2001 (2) BCLR 152 (CC) (also reported as Sonderup v Tondelli
2001 (1) SA 1171 (CC)) ........................................................... 173, 185, 295, 341, 344, 345, 348
 Table of cases 377

Page
Luttig v Luttig 1994 (1) SA 523 (O) ........................................................................................... 166

M v M (2011/12734) [2011] ZAGPJHC 176 (23 November 2011) .......................................... 163

M v M 1962 (2) SA 114 (GW) ........................................................................................................ 39
M v M 1991 (4) SA 587 (D) ....................................................................................................... 5, 10
M v R 1989 (1) SA 416 (O) .......................................................................................................... 329
M v S (Centre for Child Law, Amicus Curiae) 2007 (12) BCLR 1312 (CC) ........... 172, 173, 288,
................................................................................................................................... 291, 294, 295
M v V (Born N) [2011] JOL 27045 (WCC) ................................................................................ 328
Maas v Maas 1993 (3) SA 885 (O) ............................................................................................... 200
Mabena v Letsoalo 1998 (2) SA 1068 (T) ................................................................................... 218
Macallister v Macallister [2013] JOL 30404 (KZD) ........................................................... 131, 134
MacGregor v MacGregor 1986 (3) SA 644 (C) .......................................................................... 151
Madiehe (born Ratlhogo) v Madiehe [1997] 2 All SA 153 (B) ................................................ 181
Madikiza, Ex parte 1995 (4) SA 433 (Tk) ................................................................................... 108
Magewu v Zozo [2004] 3 All SA 235 (C) ..................................................................................... 55
Maharaj v Maharaj [2002] 2 All SA 34 (D), 2002 (2) SA 648 (D)..................................... 130, 131
Maharaj v Sanlam Life Insurance Ltd [2011] 2 All SA 571 (KZD),
2011 (6) SA 17 (KZD) .......................................................................................................... 73, 82
Mahendra v Framashnee Case 8422/2006, 21 May 2007 (W) (unreported) ............................. 13
Makholiso v Makholiso 1997 (4) SA 509 (Tk) ........................................................................... 312
Makkink and Makkink, Ex parte 1957 (3) SA 161 (N) ................................................................ 86
Maluleke v Minister of Home Affairs Case 02/24921, 9 April 2008 (W)
(unreported) ............................................................................................................................. 221
Maneli v Maneli 2010 (7) BCLR 703 (GSJ) ................................................................................ 350
Manga v Manga 1992 (4) SA 502 (ZSC) ....................................................................................... 58
Mann v Leach [1998] 2 All SA 217 (E). ...................................................................................... 117
Mans v Mans (formerly Richens, born Maddock) [1999] 3 All SA 506 (C) ............................... 58
Marais v Marais 1960 (1) SA 844 (C) .......................................................................................... 184
Markram v Scholtz [2000] 4 All SA 452 (NC) ........................................................................ 72, 77
Martens v Martens 1952 (3) SA 771 (W) ...................................................................................... 24
Märtens v Märtens 1991 (4) SA 287 (T) ..................................................................................... 191
Martin v Martin 1925 EDL 264 .................................................................................................... 137
Martin v Martin 1997 (1) SA 491 (N) ......................................................................................... 162
Martin v Mason 1949 (1) PH B9 (N) .................................................................................. 302, 303
Martin, Ex parte 1943 CPD 545..................................................................................................... 84
Mathabathe v Mathabathe 1987 (3) SA 45 (W) ..................................................... 83, 94, 139, 140
Mather v Mather 1970 (4) SA 582 (O) ....................................................................................... 199
Matthee v MacGregor Auld 1981 (4) SA 637 (Z)....................................................................... 302
Matthews v Matthews 1983 (4) SA 136 (SE) ............................................................................... 190
Mauerberger v Mauerberger 1948 (4) SA 902 (C) ...................................................................... 25
Maury (Edms) Bpk h/a Franelle Gordyn Boutique v Erasmus 1988 (2) SA 314 (O) ............... 70
Mazibuko v National Director of Public Prosecutions 2009(6) SA 479 (SCA) .................... 63, 66
MB v NB 2010 (3) SA 220 (GSJ) ..................................................... 97, 98, 159, 160, 197, 303, 308
McCarthy Retail Ltd v Shortdistance Carriers CC [2001] 3 All SA 236 (SCA),
2001 (3) SA 482 (SCA) ............................................................................................................... 45
McDonald v Young 2012 (3) SA 1 (SCA) ........................................................................... 256, 259
McNaught v Caledonian Hotel 1938 TPD 577 ............................................................................. 48
Media 24 Ltd v National Prosecuting Authority (Media Monitoring Africa as
Amicus Curiae): In re S v Mahlangu 2011 (2) SACR 321 (GNP) .......................................... 294
Media Workers Association of South Africa v Press Corporation of South Africa Ltd
(“Perskor”) 1992 (4) SA 791 (A) ............................................................................................. 154
Mentz v Simpson 1990 (4) SA 455 (A) ....................................................................... 302, 304, 307
Menzies, Ex parte 1993 (3) SA 799 (C) .................................................................................. 62, 63
378 South African Family Law

Page
Meyer v Van Niekerk 1976 (1) SA 252 (T) ................................................................................. 349
MG v RG 2012 (2) SA 461 (KZP) ................................................................................ 135, 163, 164
MGB v DEB [2013] 4 All SA 99 (KZD) (also reported as MB v DB
2013 (6) SA 86 (KZD)) .......................................................................................... 93, 97, 98, 101
Michaelson, Ex parte 1941 (2) PH B57 (W) ................................................................................ 32
Micklem v Micklem 1988 (3) SA 259 (C) ................................................................................... 199
Milbourn v Milbourn 1987 (3) SA 62 (W).................................................................... 83, 139, 140
Miller v Miller 1940 CPD 466 ...................................................................................................... 306
Minister of Communications v Ngewu 2014 (3) BCLR 364 (CC) ............................................ 132
Minister of Education, Western Cape v Governing Body, Mikro Primary School
[2005] 3 All SA 436 (SCA), 2006 (1) SA 1 (SCA) ................................................................... 294
Minister of Health v Treatment Action Campaign (1) 2002 (12) BCLR 1033
(CC) (also reported as Minister of Health v Treatment Action Campaign (2)
2002 (5) SA 721 (CC) ............................................................................................................... 305
Minister of Home Affairs v Fourie (Doctors for Life International, Amici Curiae) ......... 13, 205,
........................................................................................................................................... 206, 213
Minister of Police v Mboweni [2014] 4 All SA 452 (SCA), 2014 (6) SA 256 (SCA)................. 290
Minister of Safety and Security v Katise 2015 (1) SACR 181 (SCA).......................................... 271
Minister of the Interior v Haviside’s Executors 1916 EDL 244 ................................................. 308
Minister of Welfare and Population Development v Fitzpatrick 2000 (7) BCLR 713 (CC),
2000 (3) SA 422 (CC) ............................................................................... 173, 288, 295, 296, 318
Mitchell v Mitchell 1904 TS 128 .................................................................................................. 184
Mitchell v Mitchell 1930 AD 217 ................................................................................................... 14
MJB v DGB [2013] JOL 30330 (SCA) ......................................................................................... 293
ML v JL (3981/2010) [2013] ZAFSHC 55 (25 April 2013) ............................................... 131, 133
ML v KG (15078/12) [2013] ZAGPJHC 87 (8 April 2013) ....................................................... 233
MM v JM 2014 (4) SA 384 (KZP) .......................................................................................... 93, 149
MM v MN 2013 (4) SA 415 (CC) (also reported as Mayelane v Ngwenyama (Women’s
Legal Centre Trust and Others as Amici Curiae) 2013 (8) BCLR 918 (CC)) .............. 219, 224
MN v AJ 2013 (3) SA 26 (W) ....................................................................................................... 309
MN v MM [2012] 3 All SA 408 (SCA), 2012 (10) BCLR 1071 (SCA),
2012 (4) SA 527 (SCA) ............................................................................................................. 224
Mngadi v Beacon Sweets & Chocolates Provident Fund 2003 (2) BCLR 111 (CC),
2003 (2) SA 363 (CC) ................................................................................................................. 55
Mocke v Fourie (1893) 3 CTR 313 .................................................................................................. 8
Molapo v Molapo (4411/10) [2013] ZAFSHC 29 (14 March 2013) ........................................ 136
Moola v Aulsebrook 1983 (1) SA 687 (N) .................................................................................... 38
Moore v Nouveau Investments CC [2008] 4 All SA 566 (W) .................................................... 130
Moremi v Moremi 2000 (1) SA 936 (W)............................................................................... 63, 137
Moropane v Southon [2014] ZASCA 76 (29 May 2014)............................................................ 218
Motala, Ex parte 1961 (3) SA 459 (D) .......................................................................................... 84
Motan v Joosub 1930 AD 61 ........................................................................................................ 306
Motsetse v Motsetse [2015] 2 All SA 495 (FB) ........................................................................... 131
Motsoatsoa v Roro [2011] 2 All SA 324 (GSJ) ............................................................................ 218
Mouton, Ex parte 1929 TPD 406................................................................................................... 89
Mpofu v Minister for Justice and Constitutional Development (Centre for Child
Law as Amicus Curiae) 2013 (9) BCLR 1072 (CC), 2013 (2) SACR 407 (CC) .................... 288
MS v KS 2012 (6) SA 482 (KZP) .................................................................................................... 56
MS v S (Centre for Child Law as Amicus Curiae) 2011 (2) SACR 88 (CC)
(also reported as S v M (Centre for Child Law as Amicus Curiae)
2008 (3) SA 232 (CC), 2007 (2) SACR 539 (CC)) ................. 172, 173, 288, 291, 292, 294, 295
MS, Ex parte 2014 (3) SA 415 (GNP) ......................................................................................... 311
MS; In Re: Confirmation of Surrogate Motherhood Agreement, Ex parte
[2014] 2 All SA 312 (GNP) ...................................................................................................... 311
 Table of cases 379

Page
Mühlmann v Mühlmann 1981 (4) SA 632 (T) ................................................................... 258, 259
Mühlmann v Mühlmann 1984 (3) SA 102 (A) ............................................. 89, 110, 111, 258, 259
Müller v President of the Republic of Namibia 2000 (6) BCLR 655 (NmS).............................. 59
Mundy v Mundy 1946 WLD 280 .................................................................................................... 79
Murray v Murray 1959 (3) SA 84 (W) ........................................................................................... 87

Naidoo v Naidoo 1985 (1) SA 366 (T)........................................................................................ 120

Natal Bank Ltd v Rood’s Heirs 1909 TS 243............................................................................... 116
Nathan Woolf, Ex parte 1944 OPD 266 ........................................................................................ 90
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
2000 (1) BCLR 39 (CC), 2000 (2) SA 1 (CC) ............................................. 37, 43, 255, 264, 267
National Coalition for Gay and Lesbian Equality v Minister of Justice
1998 (12) BCLR 1517 (CC), 1999 (1) SA 6 (CC) ................................................................... 295
Naudé v Fraser [1998] 3 All SA 239 (SCA), 1998 (8) BCLR 945 (SCA),
1998 (4) SA 539 (SCA) ............................................................................................................. 317
NB v Maintenance Officer, Butterworth 2014 (6) SA 116 (ECM) .............................................. 49
NCM v Presiding Officer of the Children’s Court, District of Krugersdorp
[2013] 3 All SA 471 (GSJ) ........................................................................................................ 336
Ncubu v National Employers General Insurance Co Ltd 1988 (2) SA 190 (N) ....................... 304
Ndlovu v Mokoena 2009 (5) SA 400 (GNP) ....................................................................... 218, 221
Nedbank Ltd v Van Zyl 1990 (2) SA 469 (A) ............................................................................... 67
Nel v Cockcroft 1972 (3) SA 592 (T) ............................................................................................ 79
Nel v Nel 1977 (3) SA 288 (O) .................................................................................................... 163
Nell v Nell 1976 (3) SA 700 (T) .................................................................................................. 115
Netshituka v Netshituka 2011 (5) SA 453 (SCA) ....................................................................... 236
Ngewu v Post Office Retirement Fund 2013 (4) BCLR 421 (CC) ............................................ 132
Ngubane v Ngubane 1983 (2) SA 770 (T).............................................................................. 38, 39
Nicholson v Nicholson 1998 (1) SA 48 (W) ............................................................................... 200
Nienaber v Nienaber 1980 (2) SA 803 (O) ................................................................................ 199
Nkambula v Linda 1951 (1) SA 377 (A) ..................................................................................... 145
NM v Presiding Officer of Children’s Court, Krugersdorp 2012 (6) SA 45 (GSJ)................... 336
Nortjé v Pool 1966 (3) SA 96 (A) .......................................................................................... 45, 260

O v O 1992 (4) SA 137 (C) .......................................................................................................... 329

Oberholzer v Oberholzer 1947 (3) SA 294 (O) ..................................................................... 44, 45
Oblowitz v Oblowitz [1953] 4 All SA 219 (C), 1953 (4) SA 426 (C) ......................................... 257
Odendaal v Odendaal [2002] 2 All SA 94 (W) ................................................................ 84, 92, 94
Odgers v De Gersigny 2007 (2) SA 305 (SCA) ........................................................... 129, 167, 168
Oelofse v Grundling 1952 (1) SA 338 (C) .................................................................................... 45
Oglodzinski v Oglodzinski 1976 (4) SA 273 (D) .......................................................................... 58
Old Mutual Life Assurance Co (SA) Ltd v Swemmer 2004 (5) SA 373 (SCA) ................ 132, 133,
134, 137
Olivier v Olivier 1998 (1) SA 550 (D) ........................................................................................... 94
Omar v Government, RSA 2006 (2) BCLR 253 (CC) (also reported as Omar v
Government of the Republic of South Africa (Commissioner for Gender
Equality, Amicus Curiae) 2006 (2) SA 289 (CC)) .................................................................. 282
Oosthuizen v Oosthuizen 1986 (4) SA 984 (T)............................................................................ 58
Oosthuizen v Stanley 1938 AD 322 ..................................................................................... 306, 310
Oosthuizen, Ex parte 1990 (4) SA 15 (E) .......................................................................... 108, 109
Oppel v Oppel 1973 (3) SA 675 (T) ........................................................................................... 190
Oppel, Ex parte 2002 (5) SA 125 (C) (also reported as Oppel In re: Appointment of
Curator ad Litem and Curator Bonis, Ex parte [2002] 1 All SA 8 (C)) ................................ 357
Orchison, Ex parte 1952 (3) SA 66 (T) ....................................................................................... 90
380 South African Family Law

Page
Oshry v Feldman [2011] 1 All SA 124 (SCA), 2010 (6) SA 19 (SCA) .................... 51, 63, 80, 117,
118, 163, 169, 200
Osman v Osman 1983 (2) SA 706 (D) .......................................................................................... 42
Osman v Osman 1992 (1) SA 751 (W) ....................................................................................... 187
Ott v Raubenheimer 1985 (2) SA 851 (O) ................................................................................. 123
Owen v Owen 1968 (1) SA 480 (E) ............................................................................................... 58
Owens v Stoffberg 1946 CPD 226 ................................................................................................ 167
Oxton, Ex parte 1948 (1) SA 1011 (C) ......................................................................................... 34

P v P [2007] 3 All SA 9 (SCA), 2007 (5) SA 94 (SCA) ............................................... 173, 176, 181
P v P 2002 (6) SA 105 (N) ........................................................................................................... 329
Paixão v Road Accident Fund [2012] 4 All SA 262 (SCA),
2012 (6) SA 377 (SCA) ............................................................................................. 260, 262, 263
Palesa v Moleko [2013] 4 All SA 166 (GSJ) ................................................................................ 234
Patel v Minister of Home Affairs 2000 (2) SA 343 (D) ...................................................... 291, 294
Patmore v Patmore 1997 (4) SA 785 (W) ................................................................................... 199
PD v MD 2013 (1) SA 366 (ECP) ........................................................................................ 327, 328
Peffers v Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund Board of
Control 1965 (2) SA 53 (C). .................................................................................................... 301
Pennello v Pennello [2004] 1 All SA 32 (SCA), 2004 (3) BCLR 243 (SCA),
2004 (3) SA 117 (SCA) ..................................................... 175, 176, 181, 343, 344, 345, 347, 348
Persad v Persad 1989 (4) SA 685 (D) .................................................................................... 63, 137
Peter v Minister of Law and Order 1990 (4) SA 6 (E) ................................................................. 42
Petersen v Kruger 1975 (4) SA 171 (C) ...................................................................................... 311
Petersen v Maintenance Officer [2004] 1 All SA 117 (C), 2004 (2) BCLR 205
(C), 2004 (2) SA 56 (C) ........................................................................................................... 306
Petty v Petty [2002] 2 All SA 193 (T) .................................................................................. 150, 200
Pezzutto v Dreyer 1992 (3) SA 379 (A) ....................................................................................... 258
Phillips v Phillips 1961 (2) SA 337 (D) ....................................................................................... 352
Pickles v Pickles 1947 (3) SA 175 (W) .............................................................................. 45, 79, 80
Pienaar v Pienaar’s Curator 1930 OPD 171 ...................................................................... 13, 14, 15
Pienaar, Ex parte 1964 (1) SA 600 (T) ....................................................................................... 306
Pieterse v Pieterse 1965 (4) SA 344 (T) ...................................................................................... 165
Pieterse v Shrosbee; Shrosbee v Love [2006] 3 All SA 343 (SCA), 2005 (1) SA 309 (SCA) ...... 63
Pietzsch v Thompson 1972 (4) SA 122 (R) .................................................................................... 6
Pillay v Pillay 2004 (4) SA 81 (SEC) ............................................................ 159, 160, 161, 162, 351
Pinion v Pinion 1994 (2) SA 725 (D) .......................................................................................... 182
Pinnacle Point Casino (Pty) Ltd v Auret [1999] 2 All SA 491 (C) .............................................. 72
PL v YL 2013 (6) SA 28 (ECG) .................................................................................... 127, 128, 135
Polliack v Polliack 1988 (4) SA 161 (W) ..................................................................................... 166
Pommerel v Pommerel 1990 (1) SA 998 (E)...................................................................... 159, 161
Pommerel v Pommerel Case 4042/1986 (SE) (unreported) .................................................... 190
Ponelat v Schrepfer 2012 (1) SA 206 (SCA) .............................................................. 110, 257, 258
Portinho v Portinho 1981 (2) SA 595 (T) .................................................................................. 163
Potgieter v Bellingan 1940 EDL 264 ............................................................................................. 39
Potgieter, Ex parte 1943 OPD 4 .............................................................................................. 85, 86
PPS Insurance Company Ltd v Mkhabela 2012 (3) SA 292 (SCA) ............................................. 63
Preller v Jordaan 1956 (1) SA 483 (A) .......................................................................................... 25
President Insurance Co Ltd v Yu Kwam 1963 (3) SA 766 (A) ................................................... 299
President of the Republic of South Africa v Hugo 1997 (6) BCLR 708 (CC),
1997 (4) SA 1 (CC) ................................................................................................................... 126
Pretorius v Smith 1971 (4) SA 459 (T) ......................................................................................... 79
Pretorius v Van Zyl 1927 OPD 226 ................................................................................................ 45
Prinsloo v Prinsloo 1958 (3) SA 759 (T) ...................................................................................... 39
 Table of cases 381

Page
Prinsloo v Van der Linde 1997 (6) BCLR 759 (CC), 1997 (3) SA 1012 (CC) ......................... 142
Prinsloo’s Curators Bonis v Crafford and Prinsloo 1905 TS 669 .......................................... 13, 15
PT v LT 2012 (2) SA 613 (WCC) ............................................................................................ 53, 54
Purnell v Purnell 1989 (2) SA 795 (W) ............................................................................... 162, 164

Qoza v Qoza 1989 (4) SA 838 (Ck) ............................................................................................. 163

R v H [2006] 4 All SA 199 (C), 2005 (6) SA 535 (C) ................................................................. 185
R v Janke & Janke 1913 TPD 382 ................................................................................................ 302
R v Muller 1948 (4) SA 848 (O) .................................................................................................. 302
Radebe v Sosibo 2011 (5) SA 51 (GSJ) ................................................................................. 97, 116
Radlof v Ralph 1917 EDL 168 ......................................................................................................... 8
Raik v Raik 1993 (2) SA 617 (W) ........................................................................ 125, 126, 144, 145
Ramayee v Vandiyar 1977 (3) SA 77 (D) ...................................................................................... 38
Randles: In re: King v King, Ex parte [1998] 2 All SA 412 (D) ......................................... 130, 131
Rasello v Chali In re: Chali v Rasello [2013] JOL 30965 (FB) .................................................. 218
RD v TD 2014 (4) SA 200 (GP) ............................................................... 88, 89, 110, 111, 257, 258
Reddy v Chinasamy 1932 NPD 461 ............................................................................................... 65
Redelinghuys v Redelinghuys [2010] ZAECPEHC 68 (22 October 2010) ............................... 185
Redgard v Redgard 1989 (1) SA 113 (E) .................................................................................... 150
Reeder v Softline [2000] 4 All SA 105 (W), 2001 (2) SA 844 (W) ........................ 93, 94, 100, 151
Rees v Harris 2012 (1) SA 583 (GSJ) .......................................................................................... 149
Reid v Reid 1992 (1) SA 443 (E) ................................................................................. 158, 164, 165
Reis v Executors of Gilloway (1834) 1 Menz 186 ......................................................................... 69
Reloomel v Ramsay 1920 TPD 371 .................................................................................... 47, 48, 49
Reyneke v Mutual & Federal Insurance Co Ltd 1992 (2) SA 417 (T) ...................................... 359
Reyneke v Reyneke 1927 OPD 130 ......................................................................................... 35, 36
Reyneke v Reyneke 1990 (3) SA 927 (E) ................................................................................ 44, 80
RH v DE 2014 (6) SA 436 (SCA) ................................................................................................... 42
Rheeder v Rheeder 1950 (4) SA 30 (C)...................................................................................... 352
Rhodesia Railways v Commissioner of Taxes 1925 AD 438 ....................................................... 258
Richter v Richter 1947 (3) SA 86 (W) ......................................................................................... 352
Road Accident Fund v Timis [2010] ZASCA 30 (26 March 2010) ............................................ 305
Roels v Roels [2003] 2 All SA 441 (C) .......................................................................................... 49
Rohloff v Ocean Accident and Guarantee Corp Ltd 1960 (2) SA 291 (A) ................................ 91
Roos v Roos 1945 TPD 84 ............................................................................................................ 165
Roos, Ex parte 1945 GWL 1 ........................................................................................................... 86
Rose v Rose [2015] 2 All SA 352 (WCC) .................................................................................... 246
Rosenbuch v Rosenbuch 1975 (1) SA 181 (W) ............................................................................ 58
Ross v Ross 1994 (1) SA 865 (SE).................................................................................................. 58
Rousalis v Rousalis 1980 (3) SA 446 (C) ..................................................................................... 136
Roux v Santam Versekeringsmaatskappy Bpk 1977 (3) SA 261 (T) ........................................... 64
Rowe v Rowe 1997 (4) SA 160 (SCA).......................................................................................... 127
RP v DP 2014 (6) SA 243 (ECP) ............................................................................ 93, 148, 149, 150
RS v MS 2014 (2) SA 511 (GJ) ......................................................................................... 93, 94, 100
Rubens v Rubens (1909) 26 SC 617 ........................................................................................ 24, 25
Rubenstein v Rubenstein 1992 (2) SA 709 (T) .......................................................................... 164
Russell v Boughten 1955 (2) SA 229 (SR) .................................................................................. 352
Ryland v Edros [1996] 4 All SA 557 (C), 1997 (1) BCLR 77 (C),
1997 (2) SA 690 (C) ......................................................................................... 244, 245, 247, 250

S v Baloyi 2000 (1) BCLR 86 (CC), 2000 (2) SA 425 (CC) ....................................................... 281
S v Cloete 2001 (2) SACR 347 (C) ................................................................................................ 56
S v Dannhauser 1993 (2) SACR 398 (O) .................................................................................... 352
382 South African Family Law

Page
S v Frieslaar 1990 (4) SA 437 (C) .................................................................................................. 51
S v H 2007 (3) SA 330 (C) ........................................................................................................... 342
S v J [2011] 2 All SA 299 (SCA) (also reported as FS v JJ 2011 (3) SA 126 (SCA)) ... 39, 197, 312
S v Kika 1998 (2) SACR 428 (W) ......................................................................................... 291, 294
S v L 1992 (3) SA 713 (E) ............................................................................................................ 330
S v Lewis 1987 (3) SA 24 (C) ....................................................................................................... 302
S v Londe 2011 (1) SACR 377 (ECG) ......................................................................................... 294
S v Mabona 2001 (2) SACR 306 (Ck) ........................................................................................... 56
S v MacDonald 1963 (2) SA 431 (C) ........................................................................................... 307
S v Magagula 2001 (2) SACR 123 (T) ........................................................................................... 56
S v Makwanyane 1995 (6) BCLR 665 (CC), 1995 (3) SA 391 (CC) .......................................... 295
S v Mbhokani 2009 (1) SACR 533 (T) ........................................................................................ 294
S v Morekhure 2000 (2) SACR 730 (T) ........................................................................................ 56
S v Myburgh 2007 (1) SACR 11 (W) ................................................................................... 291, 294
S v Nduku 2000 (2) SACR 382 (Tk).............................................................................................. 56
S v Richter 1964 (1) SA 841 (O) ................................................................................................. 352
S v Seroke 2004 (1) SACR 456 (T) ................................................................................................ 56
S v Visser 2004 (1) SACR 393 (SCA) ............................................................................................. 56
S v Z and 23 Similar Cases 2004 (4) BCLR 410 (E) ................................................................... 288
Sackville West v Nourse 1925 AD 516 ......................................................................................... 301
Sager v Bezuidenhout 1980 (3) SA 1005 (O) ............................................................................... 10
Saheb v Mather 1946 NPD 703 ...................................................................................................... 10
Said, Ex parte 1943 WLD 223 ........................................................................................................ 85
Salter v Municipality of Kirkwood 1986 (3) SA 810 (SE) ............................................................ 29
Samsudin v Berange 2005 (3) SA 529 (N).................................................................................... 46
Sanders, Ex parte 2002 (5) SA 387 (C) ........................................................................ 85, 106, 107
Santam Bpk v Henery 1999 (3) SA 421 (SCA) ................................................................... 157, 262
Santam Versekeringsmaatskappy Bpk v Roux 1978 (2) SA 856 (A) ........................................... 67
SATAWU v Garvas 2012 (8) BCLR 840 (CC), 2013 (1) SA 83 (CC) .......................................... 23
Satchwell v President of the Republic of South Africa 2001 (12) BCLR 1284 (T) .................. 264
Satchwell v President of the Republic of South Africa 2002 (9) BCLR 986 (CC),
2002 (6) SA 1 (CC) ................................................................................................... 256, 263, 267
Satchwell v President of the Republic of South Africa 2004 (1) BCLR 1 (CC),
2003 (4) SA 266 (CC) ............................................................................................................... 264
SB v RB [2015] 2 All SA 232 (ECLD, George) ................................................... 105, 106, 141, 142
Schlebusch v Schlebusch 1988 (4) SA 548 (E)........................................................................... 182
Schlesinger v Schlesinger 1968 (1) SA 699 (W) ......................................................................... 166
Schmidt v Schmidt 1996 (2) SA 211 (W)............................................................................ 162, 304
Schneider v AA [2010] 3 All SA 332 (WCC), 2010 (5) SA 203 (WCC) .................................... 294
Schoeman v Rafferty 1918 CPD 485 ............................................................................................ 5, 6
Schutte v Jacobs (Nr 2) 2001 (2) SA 478 (W) ............................................................................ 326
Schutte v Schutte 1986 (1) SA 872 (A) ....................................................................... 157, 163, 166
Schwartz v Schwartz 1984 (4) SA 467 (A) ........................................................................... 120, 124
Scott v Scott 1946 WLD 399 ................................................................................................. 302, 304
Secretary for Inland Revenue v Brey 1980 (1) SA 472 (A) ........................................................ 350
Seedat’s Executors v The Master (Natal) 1917 AD 302 ............................................................... 13
Seetal v Pravitha 1983 (3) SA 827 (D) ........................................................................................ 329
Sempapalele v Sempapalele 2001 (2) SA 306 (O) ..................................................................... 131
Senior Family Advocate, Cape Town v Houtman 2004 (6) SA 274 (C).................... 342, 344, 345
Senior v Senior 1999 (4) SA 955 (W) ......................................................................................... 200
Senwes Bpk v Gouws [2003] 2 All SA 216 (O) ............................................................................. 70
Seodin Primary School v MEC of Education, Northern Cape [2006] 1 All SA 154 (NC),
2006 (4) BCLR 542 (NC) ......................................................................................................... 292
Sepheri v Scanlan 2008 (1) SA 322 (C) .......................................................... 7, 8, 9, 110, 257, 258
 Table of cases 383

Page
September v Karriem 1959 (3) SA 687 (C) ................................................................................ 329
Seria v Minister of Safety and Security 2005 (5) SA 130 (C) ..................................................... 277
Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs
2000 (8) BCLR 837 (CC), 2000 (3) SA 936 (CC) .................................................................... 43
Shand, Ex parte 1925 CPD 217 ..................................................................................................... 85
Shawzin v Laufer 1968 (4) SA 657 (A)........................................................................................ 329
Shein, Ex parte 1947 (1) SA 471 (W) ........................................................................................... 86
Shibi v Sithole; South African Human Rights Commission v President of the
Republic of South Africa 2005 (1) BCLR 1 (CC), 2005 (1) SA 580 (CC) ............................ 222
Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC), 2009 (2) SA 66 (CC).................................. 222
Sibisi, Ex parte 2011 (1) SA 192 (KZP) ...................................................................................... 316
Simleit v Cunliffe 1940 TPD 67 ................................................................................................... 302
Simms v Simms 1981 (4) SA 186 (D) ............................................................................................ 26
Singh v Ebrahim [2010] 3 All SA 187 (D) .................................................................................. 294
Singh v Ramparsad 2007 (3) SA 445 (D).................................................................... 125, 250, 251
Singh v Singh 1983 (1) SA 781 (C) ..................................................................................... 135, 160
Sipondo v Nongauza 1927 EDL 255 ........................................................................................... 5, 6
SJ v CJ 2013 (4) SA 350 (GSJ) ..................................................................................................... 176
Smit v Jacobs 1918 OPD 30 .............................................................................................................. 7
Smit v Pienaar Case 13829/94, 20 November 1997 (C) (unreported)..................................... 167
Smit v Smit 1978 (2) SA 720 (W) ................................................................................................ 199
Smit v Smit 1980 (3) SA 1010 (O) ...................................................................................... 187, 304
Smit v Smit 1982 (4) SA 34 (O) .......................................................................................... 123, 124
Smith v Mutual & Federal Insurance Co Ltd [1998] 3 All SA 378 (C),
1998 (4) SA 626 (C) ................................................................................................................. 310
Smith v Philips 1931 OPD 107....................................................................................................... 47
Smith v Smith [2001] 3 All SA 146 (SCA), 2001 (3) SA 845 (SCA) .......................................... 344
Smith v Smith 1936 CPD 125................................................................................................... 35, 36
Smith v Smith 1937 WLD 126...................................................................................................... 136
Smith v Smith 1948 (4) SA 61 (N) ................................................................................................ 25
Smith v Smith 1961 (3) SA 359 (SR) ............................................................................................ 36
Smith v Smith Case 619/2006 (SECLD) (unreported) ............................................................. 150
Snyman v Snyman 1984 (4) SA 262 (W)....................................................................................... 34
Soller v G 2003 (5) SA 430 (W) ........................................................................... 175, 176, 183, 292
Soller v Maintenance Magistrate, Wynberg 2006 (2) SA 66 (C) ......................................... 56, 330
Solomons v Abrams 1991 (4) SA 437 (W) .................................................................................... 38
Soupionas v Soupionas 1983 (3) SA 757 (T).............................................................................. 136
South African Broadcasting Corp Ltd v National Director of Public Prosecutions
2007 (2) BCLR 167 (CC), 2007 (1) SA 523 (CC) ................................................................... 295
SP v HP 2009 (5) SA 223 (O) ...................................................................................................... 199
Spangenberg v De Waal [2008] 1 All SA 162 (T) .............................................................. 195, 359
Sparks v Sparks 1998 (4) SA 714 (W) ......................................................................................... 165
Spies’ Executors v Beyers 1908 TS 473 ....................................................................................... 350
Spinazze, Ex parte 1983 (4) SA 751 (T) ....................................................................................... 84
SS v Presiding Officer, Children’s Court, Krugersdorp 2012 (6) SA 45 (GSJ) ........................ 336
Stander v Royal Exchange Assurance Co 1962 (1) SA 545 (SWA) ........................................... 310
Stander v Stander 1929 AD 349 ............................................................................................... 25, 35
Stark v Fischer 1935 SWA 53 ....................................................................................................... 308
Steenberg v Steenberg 1963 (4) SA 870 (C) .............................................................................. 136
Stembridge v Stembridge [1998] 2 All SA 4 (D).......................................................................... 86
Steytler v Dekkers (1872) 2 Roscoe 102 ........................................................................................ 84
Stock v Stock 1981 (3) SA 1280 (A) .................................................................................... 176, 183
Strydom v Engen Petroleum Ltd [2013] 1 All SA 563 (SCA),
2013 (2) SA 187 (SCA) ......................................................................................................... 74, 75
384 South African Family Law

Page
Subramanian v Standard Bank Ltd (7008/11) [2012] ZAKZPHC 12 (13 March 2012) ........... 72
SW v F 1997 (1) SA 796 (O) ........................................................................................................ 288
Swart v Swart 1980 (4) SA 364 (O).............................................................................. 158, 160, 163

T v M 1997 (1) SA 54 (A) ............................................................................................................ 329

Tasker, Ex parte (1909) 26 SC 587 ............................................................................................... 90
Taylor v Taylor 1952 (4) SA 279 (SR) ......................................................................................... 189
Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional
Development 2014 (2) SA 168 (CC) ....................................................................................... 296
Tel Peda Investigation Bureau (Pty) Ltd v Laws 1972 (2) SA 1 (T) ........................................... 79
Terblanche v Terblanche 1992 (1) SA 501 (W)......................................................... 174, 175, 329
Tesouriero v Bhyjo Investments Share Block (Pty) Ltd 2000 (1) SA 167 (W) ........................... 75
Thelemann v Von Geyso 1957 (3) SA 39 (W) ................................................................................ 5
Theron v Theron 1939 WLD 355 ................................................................................................ 183
Thom v Worthmann 1962 (4) SA 83 (N) ..................................................................................... 69
Thomas v Minister of Home Affairs 2000 (8) BCLR 837 (CC), 2000 (3) SA 936 (CC) ............ 43
Thomas v Thomas [1999] 3 All SA 550 (D) ................................................................................. 94
Thompson v Model Steam Laundry Ltd 1926 TPD 674 ............................................................ 260
Thompson, Ex parte 1983 (4) SA 392 (E).................................................................................. 359
Thomson v Thomson 2010 (3) SA 211 (W) ................................................................................. 54
Thutha v Thutha 2008 (3) SA 494 (Tk) ..................................................................................... 128
TM v NM 2014 (4) SA 575 (SCA) ....................................................................................... 221, 236
Toho v Diepmeadow City Council 1993 (2) SA 679 (W) .................................................... 63, 137
Tomlin v London and Lancashire Insurance Co Ltd 1962 (2) SA 30 (D) ................................. 68
Towert v Towert 1956 (1) SA 429 (W) .................................................................................... 87, 88
Townsend-Turner v Morrow [2004] 1 All SA 235 (C) ............................................... 197, 329, 330
Traub v Traub 1955 (2) SA 671 (C).............................................................................................. 48
Tregoning v Tregoning 1914 WLD 95 ........................................................................................ 351
Tshetlo v Tshetlo [2002] 2 All SA 34 (D), 2002 (2) SA 648 (D) ............................................... 128
Tyali v University of Transkei [2002] 2 All SA 47 (Tk) .............................................................. 310
Tyler v Tyler [2004] 4 All SA 115 (NC) ...................................................................................... 329

Union Government (Minister of Finance) v Larkan 1916 AD 212 ............................... 88, 89, 105
Uys v Uys 1953 (2) SA 1 (E) .......................................................................................................... 15

V (also known as L) v De Wet 1953 (1) SA 613 (O) .................................................................. 259

V v V 1998 (4) SA 169 (C) ................................................................................... 160, 161, 182, 186
Vaal Reefs Exploration and Mining Company Limited v Burger
[1999] 4 All SA 253 (SCA), 1999 (4) SA 1161 (SCA) ......................................................... 71, 77
Van Aswegen v Van Aswegen 2006 (5) SA 221 (SE) .................................................. 164, 165, 166
Van den Berg v Jooste 1960 (3) SA 71 (W) .................................................................................. 42
Van den Berg v Le Roux [2003] 3 All SA 599 (NC) .......................................................... 175, 197
Van den Berg v Van den Berg 1959 (4) SA 259 (W) ................................................................. 185
Van den Berg v Van den Berg 2003 (6) SA 229 (T) .................................................................... 65
Van der Linde v Van der Linde 1996 (3) SA 325 (O) ....................................................... 181, 183
Van der Merwe v Road Accident Fund 2006 (6) BCLR 682 (CC),
2006 (4) SA 230 (CC) ........................................................................................................... 64, 66
Van der Merwe v Van Wyk 1921 EDL 298 .................................................................................... 64
Van der Vyver v Du Toit 2004 (4) SA 420 (T) ............................................................................ 167
Van der Walt v Van der Walt 1961 (4) SA 854 (O) .................................................................... 165
Van der Walt, Ex parte 1954 (1) SA 565 (C) ................................................................................ 23
Van Duyn v Visser 1963 (1) SA 445 (O) ....................................................................................... 10
Van Dyk v Du Toit 1993 (2) SA 781 (O)..................................................................................... 352
Van Gysen v Van Gysen 1986 (1) SA 56 (C) ............................................................................... 151
 Table of cases 385

Page
Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA) ............................................................. 5, 6, 7, 8, 9
Van Lutterveld v Engels 1959 (2) SA 699 (A) ............................................................................ 211
Van Niekerk v Van Niekerk 1959 (4) SA 658 (GW)............................................................... 36, 37
Van Niekerk, Ex parte 1917 CPD 133 ........................................................................................... 86
Van Onselen v Kgengwenyane 1997 (2) SA 423 (B).................................................................. 130
Van Oosten v Van Oosten 1923 CPD 409 ..................................................................................... 86
Van Rensburg, Ex parte 1947 (4) SA 435 (C) .............................................................................. 85
Van Rooyen v Van Rooyen [2001] 2 All SA 37 (T) .................................................... 184, 185, 186
Van Rooyen v Van Rooyen 1999 (4) SA 435 (C)........................................................................ 326
Van Tonder v Van Tonder 2000 (1) SA 509 (O) ............................................................... 189, 190
Van Vuuren v Van Vuuren 1993 (1) SA 163 (T) ........................................................................ 174
Van Wyk v Groch 1968 (3) SA 240 (E) ......................................................................................... 64
Van Zummeren v Van Zummeren [1997] 1 All SA 91 (E) ........................................ 144, 148, 151
Van Zyl v Kaye 2014 (4) SA 452 (WCC)...................................................................................... 149
Varkel v Varkel 1967 (4) SA 129 (C)........................................................................................... 199
Vather v Seedat 1974 (3) SA 389 (N) ........................................................................................... 39
Vedovato v Vedovato 1980 (1) SA 772 (T) ................................................................................. 304
Venter v Venter 1949 (4) SA 123 (W) ..................................................................................... 36, 37
Venter, Ex parte 1948 (2) SA 175 (O) .......................................................................................... 90
Venton v Venton 1993 (1) SA 763 (D) ....................................................................................... 182
Verheem v Road Accident Fund 2012 (2) SA 409 (GNP) ......................................................... 263
Vermaak v Vermaak 1929 OPD 13 ................................................................................................ 15
Vermaak v Vermaak 1945 CPD 89............................................................................................... 308
Vermeulen v Vermeulen; Buffel v Buffel 1989 (2) SA 771(NC) ............................................... 194
Verster v Verster 1975 (3) SA 493 (W) ....................................................................................... 199
Viljoen v Viljoen 1944 CPD 137 ...................................................................................................... 6
Visick, Ex parte 1968 (1) SA 151 (D) ............................................................................................ 19
Visser v Hull 2010 (1) SA 521 (WCC) .............................................................................. 74, 76, 77
Visser v Visser 1992 (4) SA 530 (SEC) ........................................................................................ 199
Vista University (Bloemfontein Campus) v Student Representative Campus Vista
1998 (4) BCLR 514 (O) (also reported as Vista University, Bloemfontein
Campus v Student Representative Council, Vista University 1998 (4) SA 102
(O)) ........................................................................................................................................... 329
Volks v Robinson 2005 (5) BCLR 446 (CC) ................................................. 13, 256, 262, 263, 267
Vonzell, Ex parte 1953 (1) SA 122 (C) ....................................................................................... 115
Voortrekkerwinkels (Ko-operatief) Bpk v Pretorius 1951 (1) SA 730 (T) ........................... 47, 48
Vucinovich v Vucinovich 1944 TPD 143 ..................................................................................... 184
VZ v VZ (2011/5122 [2014] ZAGPJHC 42 (14 February 2014) ................................................ 149

W v S 1988 (1) SA 475 (N) ............................................................................................................ 39

W v W 1959 (4) SA 183 (C) ........................................................................................................... 36
W v W 1976 (2) SA 308 (W)........................................................................................................... 26
Wassenaar v Jameson 1969 (2) SA 349 (W).................................................................................. 42
Watson v Watson 1959 (1) SA 185 (N) ....................................................................................... 166
Watt v Watt 1984 (2) SA 455 (W) ................................................................................................ 137
Webster v Webster 1992 (3) SA 729 (E) ..................................................................................... 147
Weinberg v Weinberg 1958 (2) SA 618 (C) ............................................................................... 167
Welgemoed v Mennell [2007] 3 All SA 304 (SE), 2007 (4) SA 446 (SE) ................. 157, 164, 167
Wells v Dean-Willcocks 1924 CPD 89 ............................................................................................ 36
Western Cape Minister of Education v Governing Body of Mikro Primary School
2005 (10) BCLR 973 (SCA) .................................................................................................... 294
WH, Ex parte [2011] 4 All SA 630 (GNP), 2011 (6) SA 514 (GNP) ......................................... 311
Wheeler v Wheeler [2011] 2 All SA 459 (KZP) ......................................... 177, 178, 179, 180, 187
Whitehead v Whitehead 1993 (3) SA 72 (SEC) ......................................................................... 175
386 South African Family Law

Page
Whittingham v Whittingham 1974 (2) SA 636 (R) ...................................................................... 58
Wiese v Government Employees Pension Fund 2012 (6) BCLR 599 (CC) .............................. 132
Wiese v Moolman 2009 (3) SA 122 (T) ........................................................................................ 42
Wijker v Wijker 1993 (4) SA 720 (A) .................................................................................. 135, 136
Willemse v Willemse Case 3600/2004, 12 September 2006 (FS) (unreported) ................ 97, 151
Williams v Williams (1896) 13 SC 200......................................................................................... 116
Williams v Williams 1925 TPD 538 .............................................................................................. 211
Wilson v Wilson 1946 EDL 33........................................................................................................ 87
Winwood, Ex parte 1946 NPD 279 ................................................................................................ 84
Wismer, Ex parte 1950 (2) SA 195 (C) ......................................................................................... 86
Wolfson v Wolfson 1962 (1) SA 34 (SR) ..................................................................................... 302
Wolman v Wolman 1963 (2) SA 452 (A) .................................................................................... 299
Women’s Legal Centre Trust v President of the Republic of South Africa
2009 (6) SA 94 (C) ................................................................................................................... 241
Woodhead v Woodhead 1955 (3) SA 138 (SR) .......................................................................... 308
Woodiwiss v Woodiwiss 1958 (3) SA 609 (D) ............................................................................... 42
Wright v Westelike Provinsie Kelders Bpk [2001] 4 All SA 581 (C) ........................................... 70
WT v KT 2015 (3) SA 574 (SCA) ................................................................................................. 150
Wulfsohn v Van der Gryp 1961 (1) SA 596 (W) ........................................................................... 66
WW v EW 2011 (6) SA 53 (KZP) ................................................................. 177, 178, 179, 180, 187

XN, In re 2013 (6) SA 153 (GSJ) ................................................................................................ 318

Yared v Yared 1952 (4) SA 182 (T) ............................................................................................... 80

YG v Executor, Estate Late CGM 2013 (4) SA 387 (WCC) ................................................ 113, 138
Young v Coleman 1956 (4) SA 213 (D) ........................................................................................ 44
Yu Kwam v President Insurance Co Ltd 1963 (1) SA 66 (T) ............................................. 329, 356

Zaphiriou v Zaphiriou 1967 (1) SA 342 (W) .............................................................. 198, 199, 245
Zeeman v Zeeman 1979 (2) SA 222 (C) ..................................................................................... 163
Zietsman: In re Estate Bastard, Ex parte 1952 (2) SA 16 (C).................................................... 350
Zimelka v Zimelka 1990 (4) SA 303 (W) ............................................................................ 304, 352
Zorbas v Zorbas 1987 (3) SA 436 (W)......................................................................................... 329
Zulu v Zulu 2008 (4) SA 12 (D) ................................................................................ 34, 40, 63, 258
Zwiegelaar v Zwiegelaar [1998] 4 All SA 151 (C), 1999 (1) SA 1182 (C)................................. 162
Zwiegelaar v Zwiegelaar [2001] 1 All SA 261 (A), 2001 (1) SA 1208 (SCA) ............................ 157
 TABLE OF LEGISLATION AND
INTERNATIONAL INSTRUMENTS
Page
LEGISLATION
England
Matrimonial Causes Act of 1973 ........... 139–140
Mauritius
Status of Married Women Ordinance of
1949 ............................................................ 140
Netherlands
Perpetual Edict of 1540 ............................. 23, 29
art 17 ............................................................ 23
Political Ordinance of 1580 ............................ 26
art 6 .............................................................. 27
art 7 .............................................................. 27
art 8 .............................................................. 28
South Africa
Administration of Estates Act
66 of 1965 .............. 49, 50, 115, 117–118, 316
s 54 ............................................................. 359
s 54(1) ........................................................ 359
s 54(4) ................................................ 356, 358
s 56(1) ................................................ 357, 359
s 71 ..................................................... 355, 358
s 72(1)(a)................................................... 316
s 72(1)(a)(i) ...................................... 316, 355
s 72(1)(a)(ii) ............................................. 316
s 72(1)(a)(iii) ............................................ 316
s 73 ............................................................. 356
s 73(1)(a)................................................... 358
s 77 ............................................................. 359
s 77(1) ........................................................ 356
s 78(1)(a)........................................... 356, 359
s 80 ............................................................. 301
s 82(c)(iii) .................................................. 357
s 83(1)(a)........................................... 357, 359
s 84 ............................................................. 359
s 84(1) ........................................................ 357
s 85 ..................................................... 356–359
s 90(1) ........................................................ 357
Alienation of Land Act 68 of 1981 ................. 73
s 15 (2)(g) .................................................... 73
387
Page
Aliens Control Act 96 of 1991
s 25(5) ........................................................ 264
s 25(9)(b) ..................................................... 44
s 26(3) .......................................................... 44
s 26(6) .......................................................... 44
Alteration of Sex Description and
Sex Status Act 49 of 2003 ............................ 26
s 2(1) ............................................................ 26
s 2(2) ............................................................ 26
s 3(2) ............................................................ 26
Arbitration Act 42 of 1965
s 2 ............................................................... 198
Births and Deaths Registration Act
51 of 1992 .................. 211, 217, 242, 289, 319
s 1(1) .......................................................... 289
s 1(2) .......................................................... 242
s 1(2)(a) .................................................... 289
s 9(1) .......................................................... 289
s 9(2) .......................................................... 289
s 9(6) .......................................................... 289
s 10(1) ........................................................ 289
s 26(1) .................................. 59, 193, 211–212
Black Administration Act 38 of 1927
s 22 ............................................................. 145
s 22(1) ................................................ 146, 235
s 22(2) ................................................ 146, 235
s 22(6) .................................... 62, 89, 138–140
s 22(7) ........................................................ 145
s 23 ............................................................. 145
Black Administration and Amendment of
Certain Laws Act 28 of 2005 ..................... 145
Black Laws Amendment Act 76 of 1963
s 31 ............................................................. 217
Child Care Act 74 of 1983 ..................... 338, 350
s 17(a) ........................................................ 265
s 17(c) ........................................................ 265
s 20(1) ........................................................ 265
388 South African Family Law
Page
Children’s Act 38 of 2005 ............ 113, 177–180,
183, 187–188, 196, 242, 265,
272, 297, 300, 310, 313, 316,
321, 331, 333–334, 338, 349–350
s 1 ................................................................... 3
s 1(1) ................................. 177–180, 184, 242,
301–303, 306–307,
312, 317, 323, 335, 351
s 1(2) .......................................................... 177
s 2(b) .......................................................... 298
s 6 ................................. 58, 171, 176, 298, 329
s 6(1) .................................................. 171, 298
s 6(2) .......................................................... 160
s 6(2)(a)..................................... 161, 297, 298
s 6(2)(b)–(e) .............................................. 298
s 6(2)(f) ..................................................... 298
s 6(3) .................................................. 298, 316
s 6(4) .......................................... 197, 298, 337
s 6(5) .................................................. 177, 298
ss 6–17 ........................................................ 332
s 7 ............................................... 298, 328–329
s 7(1) .................. 172, 183, 313–314, 327, 329
s 8(1) .................................................. 293, 297
s 9 ......................... 58, 160, 171, 298, 306, 329
s 10 .................... 176, 185, 190–191, 296, 298,
301–303, 316, 327, 338, 347, 355
s 11 ............................................................. 298
s 12 ............................................. 272, 298–299
s 12(1) ........................................................ 298
s 12(2)(a)............................................. 18, 299
s 12(2)(b) ................................................... 299
s 12(3) ........................................................ 299
s 12(4) ........................................................ 299
s 12(5) ........................................................ 299
s 12(6) ........................................................ 299
s 12(7) ........................................................ 299
s 12(8) ........................................................ 299
s 12(9) ........................................................ 299
s 12(10) ...................................................... 299
s 13 ............................................................. 299
s 13(1) ........................................................ 299
s 13(2) ........................................................ 299
s 14 ..................................................... 293, 299
s 15 ............................................................. 300
s 15(2) ........................................................ 300
s 16 ............................................................. 300
s 17 ....... 17, 178, 187, 206, 219, 288, 311, 319
s 18 ..................................................... 177, 330
s 18(1) ........................................................ 310
s 18(2) ................................................ 177, 301
s 18(3) ........................................ 179, 301, 356
s 18(3)(c) ................................... 179, 318, 325
s 18(3)(c)(i) ..................................... 16–17, 85
s 18(3)(c)(iii)..................................... 183, 326
s 18(4) ............................ 16, 85, 179, 325–326
s 18(5) ...................... 16–17, 85, 179, 325–326
ss 18–41 ...................................................... 332
Page
Children’s Act 38 of 2005 – continued
s 19 ............................................................... 41
s 19(1) .................................... 16, 39, 179, 311
s 19(2) .......................................... 16, 311, 314
s 19(3) ........................................................ 311
s 20 ......................................... 16, 41, 179, 312
s 21 ....................................... 16, 174, 196, 313
s 21(1) .......................................................... 39
s 21(1)(a) .................................................. 313
s 21(1)(b) ....................................................... 3
s 21(2) ........................................................ 187
s 21(3) ........................................................ 196
s 21(3)(a) .......................................... 312, 314
s 21(4) .......................................................... 39
s 22 ............................................................. 314
s 22(1) ................................................ 196, 314
s 22(2) ........................................................ 314
s 22(3) ................................................ 196, 314
s 22(4)–(6) ................................................ 174
s 22(4) ........................................ 190, 313–314
s 22(4)(b) ................................................... 314
s 22(5) ........................................................ 314
s 22(6) ........................................................ 314
s 22(6)(a) .................................................. 314
s 22(6)(b) ................................................... 315
s 22(7) ................................................ 314–315
s 23 ..................................................... 315, 331
s 23(1) ........................................................ 315
s 23(3) ................................................ 174, 315
s 23(4) ........................................................ 315
s 24 ..................................................... 316, 356
s 24(1) ........................................................ 316
s 24(2) ........................................................ 316
s 24(3) ........................................................ 316
s 25(5) ........................................................ 289
s 26 ............................................................. 289
s 27 ..................................................... 289, 316
s 27(1) ........................................................ 355
s 27(1)(a) .................................... 17, 179–180
s 27(2) ........................................................ 355
s 27(3) ................................................ 316, 355
s 27(4) ................................................ 316, 355
s 28 ..................................................... 289, 331
s 28(1) ........................................................ 331
s 28(1)(a) .................................................. 331
s 28(1)(b) ........................................... 289, 298
s 28(1)(c) ................................................... 289
s 28(1)(d) .................................................. 298
s 28(1)(h) .................................................. 299
s 28(2) ................................................ 315, 331
s 28(3)(b)–(e) ............................................ 331
s 28(3)(e) ................................................... 174
s 28(4) ........................................................ 332
s 29(1) ........................................ 314–315, 331
s 29(3) ........................................................ 314
s 29(5)(a) .................................................. 174
s 29(7) ........................................................ 334
 Table of legislation and international instruments
Page
Children’s Act 38 of 2005 – continued
s 30(2) ........................................................ 325
s 30(3) ................................................ 196, 327
s 30(4) ........................................................ 327
s 31 ............................................................. 296
s 31(1)(a)................... 180, 301–303, 316, 355
s 31(1)(b) ........................................... 301–303
s 31(1)(b)(iii) ............................ 180, 316, 355
s 31(2) ........................................................ 327
s 32 ............................................................. 306
s 32(1) ........................................................ 306
s 32(2) ................................................ 196, 331
s 33(1) ................................................ 327–328
s 33(2) ........................................................ 327
s 33(3) ........................................................ 328
s 33(4) ........................................................ 328
s 34 ............................................................. 299
s 33(5) ........................................ 174, 196, 328
s 34(1)(a)................................................... 328
s 34(1)(b) ........................................... 174, 328
s 34(3)(b)(ii)(aa) ...................................... 174
s 34(4) ................................................ 174, 328
s 34(5) ........................................................ 328
s 35(1) ........................................................ 190
s 35(2)(a)................................................... 190
s 35(2)(b) ................................................... 190
s 38 ............................................................... 41
s 38(1) ........................................................ 312
s 38(2) ........................................................ 312
s 39 ............................................................... 38
s 40 ............................................................. 265
s 40(1)(a)................................................... 312
s 40(2) ................................................ 311–302
s 42(1) ........................................................ 318
s 45(3)(a)........................................... 326, 331
s 45(3)(b) ................................................... 331
s 45(3)(d)........................................... 326, 343
s 45(3)(e) ................................................... 343
s 45(3)(g) ................................................... 326
s 46 ............................................................. 338
s 47(1) ........................................................ 334
s 47(2)(a)................................................... 335
s 47(2)(b) ..................................................... 33
s 47(3) ........................................................ 335
s 48 ..................................................... 335, 338
s 49 ............................................................. 196
s 49(1) ........................................................ 337
s 49(1)(a)................................................... 174
s 49(2) ........................................................ 337
s 50(1)–(3)................................................. 335
s 50(1) ........................................................ 337
s 51(1) ........................................................ 323
s 54 ............................................................. 338
s 54(1)(a)................................................... 279
s 54(1)(b) ................................................... 279
s 55 ............................................................. 343
s 55(1) ........................................................ 338
389
Page
Children’s Act 38 of 2005 – continued
s 61(1)(a) .................................................. 338
s 61(1)(b) ................................................... 338
s 61(1)(c) ................................................... 338
s 62(1) ........................................................ 337
s 61(2) ........................................................ 338
s 61(3) ........................................................ 338
s 62 ............................................................. 174
s 62(1) ........................................................ 337
s 65 ............................................................. 338
s 68 ............................................................. 334
s 69 ..................................................... 196, 337
s 70 ..................................................... 196, 337
s 71 ..................................................... 196, 337
s 72(1) ........................................................ 338
s 72(2) ........................................................ 338
s 76 ............................................................. 339
s 76(a)–(c) ................................................. 339
s 110(1) ...................................................... 279
ss 118–128 .................................................. 318
s 129(3) .............................................. 332–333
s 129(4) .............................................. 332–333
s 129(5) ...................................................... 332
s 129(6) ...................................................... 333
s 129(7) ...................................................... 333
s 129(8) ...................................................... 333
s 129(9) ...................................................... 333
s 129(10) .................................................... 333
s 130(1) ...................................................... 333
s 130(2)(b)–(d).......................................... 333
s 130(2)(e) ................................................. 334
s 130(2)(f) ................................................. 334
s 133(1) ...................................................... 334
s 133(2)(b)–(c) .......................................... 334
s 133(2)(d) ................................................ 334
s 133(2)(e) ................................................. 334
s 134(1) ...................................................... 333
s 134(2) ...................................................... 333
s 135(1) ...................................................... 332
s 135(2) ...................................................... 332
s 136(a) ...................................................... 332
s 136(b) ...................................................... 332
s 137 ....................................................... 3, 337
s 137(1) ...................................................... 337
s 137(5)(a) ................................................ 307
s 141(1)(b) ................................................. 272
s 141(1)(c) ................................................. 272
s 141(2)(a) ................................................ 279
s 143(2) ...................................................... 281
s 144(1)(b) ................................................. 281
s 144(1)(d) ................................................ 281
s 144(1)(f) ................................................. 281
s 144(1)(g) ................................................. 281
ss 145–147 .................................................. 281
s 148(1)(a) ................................................ 281
s 148(1)(b) ................................................. 281
s 148(2) ...................................................... 281
390 South African Family Law
Page
Children’s Act 38 of 2005 – continued
s 148(5) ...................................................... 281
s 150(1) ...................................................... 337
s 150(1)(a)........................................... 36, 337
s 150(2) ...................................................... 337
s 151 ........................................................... 335
s 151(1) ...................................................... 334
s 151(2) .............................................. 334–335
s 151(2A) ................................................... 335
s 151(3) ...................................................... 335
s 151(7) ...................................................... 335
s 151(8) ...................................................... 335
s 152 ........................................................... 335
s 152(1) ...................................................... 336
s 152(2) ...................................................... 336
s 152(3) ...................................................... 336
s 152(3)(b) ................................................. 336
s 152(4) ...................................................... 336
s 153 ........................................................... 336
s 153(1)(b) ................................................. 272
s 154 ........................................................... 336
s 155(2) .............................................. 334–335
s 155(3) ...................................................... 335
s 155(4)(a)................................................. 335
s 155(5) ...................................................... 335
s 155(7) ........................................................ 33
s 156 ........................................................... 338
s 156(1) ...................................................... 338
s 155(6) ...................................................... 335
s 156 ........................................................... 338
s 156(1) ...................................................... 338
s 156(4) ...................................................... 340
s 156(7) ...................................................... 338
s 157(1)(b) ................................................. 340
s 157(2) ...................................................... 340
s 157(3) ...................................................... 340
s 158(1) ...................................................... 339
s 159 (1) ..................................................... 338
s 230(1) ...................................................... 317
s 230(1)(a)................................................. 320
s 230(1)(b) ................................................. 317
s 230(2) ...................................................... 317
s 230(3) .............................................. 317–318
s 231(1)(a)......................................... 266, 317
s 231(1)(b) ......................................... 317–318
s 231(1)(c) ......................................... 266, 318
s 231(1)(d)................................................. 318
s 231(1)(e) ................................................. 318
s 231(2) ...................................................... 318
s 231(3) ...................................................... 318
s 231(4) ...................................................... 318
s 231(5) ...................................................... 318
s 231(6) ...................................................... 318
s 231(7)(a)......................................... 318, 321
s 231(8) ...................................................... 321
s 232(1) ...................................................... 317
s 233(1) ...................................................... 319
Page
Children’s Act 38 of 2005 – continued
s 233(1)(a) ................................ 179, 318–319
s 233(1)(b) ................................................. 318
s 233(1)(c) ................................................. 319
s 233(3) ...................................................... 319
s 233(4) ...................................................... 320
s 233(8) ...................................................... 320
s 234(1) .............................................. 196, 322
s 234(2) ...................................................... 322
s 234(3) ...................................................... 322
s 234(4) ...................................................... 322
s 234(5) ...................................................... 322
s 234(6)(a) ................................................ 322
s 234(6)(b) ................................................. 322
s 235(1) ...................................................... 320
s 235(2) ...................................................... 320
s 235(3) ...................................................... 320
s 235(4) ...................................................... 320
s 235(5) ...................................................... 320
s 236 ........................................................... 319
s 236(1) ...................................................... 319
s 236(1)(e) ................................................. 179
s 236(2) ...................................................... 319
s 236(3) ...................................................... 319
s 236(4) ...................................................... 319
s 237(1)(a) ................................................ 319
s 237(1)(b) ................................................. 319
s 237(2) ...................................................... 319
s 237(4) ...................................................... 319
s 238 ........................................................... 319
s 239(1)(a) ................................................ 318
s 239(1)(b) ................................................. 318
s 239(1)(c) ................................................. 318
s 239(1)(d) ................................................ 318
s 240(1) ...................................................... 320
s 240(2) ...................................................... 320
s 241(1) .............................................. 320–321
s 241(2) ...................................................... 320
s 242(1) ...................................................... 350
s 242(1)(a) ................................................ 266
s 242(1)(b) ................................................. 266
s 242(1)(c) ................................................. 266
s 242(1)(d) ................................................ 321
s 242(2) ...................................................... 350
s 242(2)(a) ........................................ 321–322
s 242(2)(b) ......................................... 321–322
s 242(2)(c) ................................... 26, 321–322
s 242(2)(d) ................................................ 322
s 242(3) ........................................ 26, 322, 350
s 243(1) .............................................. 322–323
s 243(2) ...................................................... 323
s 243(3)(a) ........................................ 322–323
s 243(3)(b) ................................................. 322
s 243(3)(c) ................................................. 323
s 243(4) ...................................................... 323
s 244(1) ...................................................... 323
s 244(2) ...................................................... 323
 Table of legislation and international instruments
Page
Children’s Act 38 of 2005 – continued
s 245 ........................................................... 322
s 246 ........................................................... 322
s 247 ........................................................... 321
s 248 ........................................................... 321
s 249(1) ...................................................... 321
s 249(2) ...................................................... 321
s 250 ........................................................... 317
s 251 ........................................................... 317
s 252(1) ...................................................... 321
s 252(2) ...................................................... 321
s 256(1) ...................................................... 323
s 257 (1)(a)................................................ 323
s 258(1) ...................................................... 323
s 258(2) ...................................................... 324
s 259 ........................................................... 324
s 261(1) ...................................................... 323
s 261(2) ...................................................... 323
s 261(3) ...................................................... 323
s 261(4) ...................................................... 324
s 261(5) ...................................................... 324
s 261(6) ...................................................... 324
s 261(8) ...................................................... 323
s 261(9) ...................................................... 323
s 262(1) ...................................................... 324
s 262(2)–(7) ............................................... 324
s 262(8) ...................................................... 323
s 262(9) ...................................................... 323
s 264(1) ...................................................... 324
s 264(2) ...................................................... 324
s 264(3) ...................................................... 324
s 264(4) ...................................................... 324
s 265(1) ...................................................... 325
s 265(2)–(4) ............................................... 325
s 266(1) ...................................................... 325
s 266(2) ...................................................... 325
s 266(3) ...................................................... 325
s 268 ........................................................... 325
s 269 ........................................................... 325
s 270(1) ...................................................... 325
s 271 ........................................................... 325
s 275 ........................................................... 340
s 276(1)(a)................................................. 342
s 276(2) ...................................................... 342
s 277(1) .............................................. 340, 342
s 278(1) ...................................................... 341
s 278(2) ...................................................... 344
s 278(3) ...................................................... 347
s 284(2) ...................................................... 344
s 292 ........................................................... 196
s 293 ........................................................... 196
s 295 ........................................................... 196
s 297(1)(a)................................................. 311
s 297(1)(b) ................................................. 311
s 297(1)(c) ................................................. 311
s 297(2) ...................................................... 311
s 299(a) ...................................................... 311
391
Page
Children’s Act 38 of 2005 – continued
s 299(b) ...................................................... 311
s 299(c) ...................................................... 312
s 305(1)(c) ................................................. 279
s 305(1)(k) ................................................. 272
s 305(1)(p)................................................. 272
s 305(1)(p)(ii) ........................................... 272
s 305(3)(a) ........................................ 272, 279
s 305(3)(b) ......................................... 272, 279
s 305(3)(c) ................................................. 279
s 305(4) .............................................. 272, 349
s 305(5) ...................................................... 279
s 313 ................................................... 265–266
Sch 1 .......................................................... 323
Sch 2 .......................................................... 340
Sch 4 ............................................ 60, 265–266
Children’s Status Act 82 of 1987
s 5 ............................................................... 265
Choice on Termination of Pregnancy Act
92 of 1996
s 5(2) .......................................................... 333
s 5(3) .......................................................... 333
s 7(5) .......................................................... 279
Civil Proceedings Evidence Act 25 of 1965
s 10A........................................................... 242
Civil Union Act 17 of 2006................ 3–4, 19, 26
205–210, 213, 251
256, 265, 267, 313
s 1 ....................................13, 26, 206–208, 213
s 2(a) .......................................................... 205
s 4(2) .......................................................... 207
s 5(1) .................................................. 208, 210
s 5(2) .................................................. 208, 210
s 5(4) .......................................................... 208
s 5(6) .......................................................... 208
s 6 ............................................... 208–209, 213
s 7 ............................................................... 209
s 8(1) .................................................. 207, 211
s 8(2) .......................................................... 211
s 8(3) ............................................ 41, 207, 236
s 8(4) .......................................................... 207
s 8(5) .......................................................... 207
s 8(6) ............................................ 26, 193, 207
s 9(1) .......................................................... 209
s 9(2) .......................................................... 209
s 9(3) .......................................................... 209
s 10(1) ........................................................ 209
s 10(2) ................................................ 209–210
s 10(3) ........................................................ 209
s 11(1) ................................................ 201, 209
s 11(2) ................................................ 206, 210
s 11(3) ........................................................ 210
s 12(1) ........................................................ 209
s 12(2) ........................................................ 210
s 12(3) ........................................................ 210
s 12(4) ........................................................ 210
392 South African Family Law
Page
Civil Union Act 17 of 2006 – continued
s 12(5) ........................................................ 210
s 12(6) ........................................................ 210
s 12(7) ........................................................ 210
s 13 ............................................. 201, 212, 256
s 13(1) ................................ 210–212, 235, 312
s 13(2) ................ 211, 235–236, 273, 312, 317
s 14(1) ........................................................ 207
s 16 ............................................................. 205
Compensation for Occupational
Injuries and Diseases Act 130 of 1993 ...... 261
s 1 ............................................................... 261
s 22(1) ........................................................ 261
Constitution of the Republic of South Africa
200 of 1993 ................................................ 244
s 30 ............................................................. 288
Constitution of the Republic of South Africa,
1996 ................................. 9, 23, 55, 60, 61, 65,
126, 164, 171, 186, 244, 251, 282,
293, 296–297, 300, 304, 347–348
s 8(3)(a)..................................................... 251
s 9 ................ 11, 126, 141, 181, 186, 206, 208,
212, 231, 264, 310
s 9(1) ...................... 22–23, 142, 208, 228, 267
s 9(3) ..... 60, 65, 142, 166, 174, 208, 247, 262,
264, 266–267, 306
s 10 .................. 43, 48, 81, 100, 208, 247, 262,
264, 281, 306
s 11 ............................................................. 296
s 12(1) ........................................................ 281
s 12(1)(c) ................................................... 296
s 12(1)(d)................................................... 281
s 12(1)(e) ................................................... 281
s 12(2) ........................................................ 281
s 14 ................................................. 48, 81, 100
s 14(1) ........................................................ 207
s 15 ..................................................... 247, 300
s 15(1) ................................................ 126, 251
s 15(2) ........................................................ 300
s 15(3)(a)(i) .............................................. 262
s 16 ............................................................. 300
s 18 ............................................................. 296
s 25(5) ........................................................ 290
s 26 ............................................................. 290
s 27 ............................................................. 290
s 28 ............................. 287–288, 295–296, 309
s 28(1) ................................................ 288, 295
s 28(1)(a).........................................................
s 28(1)(b) ........................... 181, 289–290, 308
s 28(1)(c) ........................... 289, 290, 304–305
s 28(1)(d)........................................... 282, 291
s 28(1)(e) ................................................... 296
s 28(1)(f) ................................................... 296
s 28(1)(h)............176–177, 291–293, 300, 329
Page
Constitution of the Republic of South Africa,
1996 – continued
s 28(2) .................. 22–23, 54–56, 58, 160, 171,
173, 176, 228, 265, 282, 291,
294–296, 306, 329, 338, 341, 348–349
s 28(3) ........................................................ 288
s 29 ............................................................. 296
s 30 ..................................................... 247, 288
s 34 ............................................................. 299
s 36 ..........23, 65, 212, 228, 231, 251, 262, 264
s 38 ............................................................. 348
s 39(2) .......................................................... 23
s 167(5) ...................................................... 264
s 172(2)(a) ........................................ 243, 264
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007
ss 3–7 .......................................................... 271
s 12 ............................................................. 271
s 17 ............................................................. 272
s 18 ............................................................. 272
s 20 ............................................................. 272
s 21 ............................................................. 272
s 54 ............................................................. 279
s 56(1) ........................................................ 271
s 68(1) ........................................................ 271
s 68(2) ........................................................ 271
Sch ............................................................. 271
Criminal Procedure Act 51 of 1977 .............. 271
s 195(2) ...................................................... 242
Deeds Registries Act 47 of 1937...................... 83
s 17(1) .......................................................... 63
s 17(4) .......................................................... 63
s 86 ............................................................... 84
s 87 ............................................................... 84
s 87(1) .......................................................... 86
s 88 ..........................................84–85, 106–107
s 89 ............................................................. 106
Demobilisation Act 99 of 1996
s 1 ............................................................... 242
s 7 ............................................................... 242
Divorce Act 70 of 1979 ........... 38, 119, 125, 134,
149–151, 153, 175, 187, 195,
199, 245, 250, 260, 316, 334
s 1 ............................................................... 194
s 1(1) .......................................................... 195
s 2(1) .......................................................... 194
s 3 ............................................... 119, 124, 246
s 4 ............................................... 120, 123–124
s 4(1) ............................................ 42, 119, 124
s 4(2) .......................................................... 121
s 4(2)(a) ............................................ 121–122
s 4(2)(b) ..................................................... 121
s 4(2)(c) ..................................................... 122
s 4(3) .......................................................... 124
 Table of legislation and international instruments
Page
Divorce Act 70 of 1979 – continued
s 5 ....................................................... 123–124
s 5(1) .......................................................... 122
s 5(1A) ....................................................... 174
s 5(2) .......................................................... 122
s 5(3) .......................................................... 123
s 5(4) .......................................................... 123
s 5A ..................................................... 124–126
ss 6–10 ........................................................ 127
s 6 ....................................... 171, 175, 188, 232
s 6(1)(a)..................................................... 175
s 6(1)(b) ..................................................... 176
s 6(2) .......................................................... 176
s 6(3) .................... 16, 177–180, 187, 330, 351
s 6(4) .......................................................... 176
s 6(5) .......................................................... 177
s 7 ............................................... 150, 229–230
s 7(1) .................................... 45, 157, 166, 169
s 7(2) ....................45, 124, 146–147, 157–159,
162–164, 168–169, 188, 246
s 7(3)–(6).................. 113, 138, 140–141, 150,
............................................................ 154–155
s 7(3) .....84, 138–143, 146–147, 159, 212, 230
s 7(4) .................................................. 143–144
s 7(5) .......................................................... 145
s 7(5)(d)..................................... 146–147, 150
s 7(6) .......................................................... 154
s 7(7) ............................................ 63, 134, 231
s 7(7)(a)............................................. 133–134
s 7(7)(b) ...........................................................
s 7(7)(c) ..................................................... 134
s 7(8) ............................................ 63, 231, 246
s 7(8)(a)............................................. 133–134
s 7(9) .......................................................... 141
s 8 ............................................... 163–164, 229
s 8(1) .................................................. 164–165
s 8(2) .......................................................... 195
s 9 ....................................................... 135, 146
s 9(1) .................................................. 135–136
s 9(2) .......................................... 122–123, 135
s 10 ..................................................... 200, 229
s 12 ............................................................. 201
s 14 ..................................................... 113, 201
Divorce Amendment Act 7 of 1989 .............. 141
s 2 ............................................................... 130
Divorce Amendment Act 44 of 1992 ............ 141
Domestic Violence Act 116 of 1998 ........... 3, 58,
174, 242, 271–274, 330, 334
s 1 ....................... 242, 273–274, 276, 278, 280
s 2 ............................................................... 278
s 3 ............................................................... 278
s 4(1) .......................................................... 261
s 4(2) .......................................................... 279
s 4(3) .......................................................... 273
s 4(4) .......................................................... 273
s 4(5) .......................................................... 273
393
Page
Domestic Violence Act 116 of 1998 – continued
s 4(6) .......................................................... 274
s 5(1) .......................................................... 274
s 5(1A) ....................................................... 274
s 5(2) .......................................................... 274
s 5(3) .................................................. 275, 282
s 5(4) .......................................................... 275
s 5(6) .................................................. 275, 282
s 6(1) .......................................................... 277
s 6(2) .......................................................... 277
s 6(4) .......................................................... 277
s 6(5)(b) ..................................................... 276
s 7 ............................................................... 277
s 7(1)(a) .................................................... 275
s 7(1)(b) ..................................................... 275
s 7(1)(c) ............................................... 58, 275
s 7(1)(d) .............................................. 58, 275
s 7(1)(e) ..................................................... 275
s 7(1)(f) ..................................................... 275
s 7(1)(g) ..................................................... 275
s 7(1)(h) .................................................... 275
s 7(2)(a) ............................................ 275–276
s 7(2)(b) ..................................................... 276
s 7(3) .......................................................... 275
s 7(4) .......................................................... 276
s 7(5) .......................................................... 275
s 7(6) .................................................. 276, 330
s 7(7)(a) .................................................... 275
s 7(7)(b) ..................................................... 276
s 8 ............................................................... 282
s 8(1) .......................................... 191, 276–277
s 8(4)(a) .................................................... 276
s 8(4)(b) ..................................................... 276
s 8(4)(c) ..................................................... 277
s 8(5) .......................................................... 277
s 9 ....................................................... 231, 276
s 10(1) ........................................................ 277
s 10(2) ........................................................ 277
s 11(1) ........................................................ 278
s 11(2) ........................................................ 278
s 12(1) ........................................................ 278
s 12(3) ........................................................ 275
s 13(2) ........................................................ 276
s 14 ............................................................. 279
s 15 ............................................................. 279
s 17 ..................................................... 277, 279
s 18(1) ........................................................ 277
Estate Duty Act 45 of 1955 ..................................
s 1 ............................................................... 242
s 4(q) .......................................................... 242
394 South African Family Law
Page
Extension of Security of Tenure Act
62 of 1997 .................................................. 275
Financial Services Laws General Amendment
Act 22 of 2008
s 16 ............................................................. 275
Friendly Societies Act 25 of 1956
s 17 ............................................................... 65
General Law Fourth Amendment Act 132 of
1993
s 29 ............................................................... 71
s 30 ............................................................... 60
Guardianship Act 192 of 1993 ...................... 266
s 1(2) .......................................................... 265
s 4 ................................................................. 60
Hague Convention on the Civil Aspects of
International Child Abduction Act
72 of 1996 .......................... 311–312, 318–319
Identification Act 68 of 1997 ........................ 210
Immigration Act 13 of 2002 .......................... 264
Immorality and Prohibition of Mixed
Marriages Amendment Act 72 of 1985
s 7 ................................................................. 29
s 7(1) ............................................................ 29
s 7(2) ............................................................ 29
s 7(4) ............................................................ 29
Income Tax Act 58 of 1962
s 1 ............................................................... 261
s 56(1)(b) ................................................... 261
Insolvency Act 24 of 1936........................ 58, 351
s 23(5) ........................................................ 352
s 26 ............................................................. 101
s 27 ............................................................... 88
s 79 ............................................................. 352
s 81(3) ........................................................ 352
s 82(6) ........................................................ 352
Insurance Act 27 of 1943 ................................ 65
s 44(1) .......................................................... 65
s 44(2) .......................................................... 65
Intestate Succession Act
81 of 1987 .......... 234, 243, 246, 249–250, 266
s 1 ............................................................... 243
s 1(1) .......................................................... 266
s 1(1)(a)....................................................... 41
s 1(1)(c) ....................................................... 41
s 1(4)(f) ..................................................... 243
Page
Judges’ Remuneration and Conditions of
Employment Act 88 of 1989 ............. 263–264
Judges’ Remuneration and Conditions of
Employment Act 47 of 2001 ..................... 264
Judicial Matters Amendment Act 66 of 2008
s 21 ............................................................... 66
Judicial Matters Second Amendment Act
55 of 2003 ................................................... 53
Jurisdiction of Regional Courts Amendment
Act 31 of 2008 ............................................ 174
s 7 ............................................................... 174
KwaZulu Act on the Code of Zulu Law
16 of 1985 .................................. 218, 223, 228
s 1 ............................................................... 218
s 36(1) ........................................................ 233
s 37 ............................................................. 218
s 38(1) ........................................................ 218
s 42 ............................................................. 218
s 43 ............................................................. 218
s 47 ............................................................. 218
s 49 ............................................................. 228
s 51 ............................................................. 218
s 52 ............................................................. 218
s 56 ............................................................. 233
Magistrates’ Courts Act 32 of 1944
s 1 ................................................................. 78
s 29(1B)(d) ................................................ 174
Maintenance Act 23 of 1963 ......................... 163
Maintenance Act 99 of 1998 .............. 49, 51–54,
56–57, 113, 162, 174, 189,
191, 205, 245, 250, 334, 350
s 1 ....................................................... 162–163
s 1(1) ............................................................ 52
s 2(1) ............................................................ 49
s 3 ................................................................. 50
s 4(1)(a) ...................................................... 50
s 4(2) ............................................................ 50
s 6(1) ............................................................ 50
s 6(1)(c) ....................................................... 50
s 6(2) ............................................................ 50
s 7(1) ............................................................ 50
s 7(1)(c) ....................................................... 50
s 7(2) ............................................................ 50
s 8(1) ............................................................ 50
s 9(1)(a) ...................................................... 50
s 9(1)(b) ....................................................... 50
s 10(6) .......................................................... 50
s 10(1A) ............................................... 50, 174
s 15(1) ................................................ 189, 352
s 15(2) ........................................................ 303
s 15(3)(a) .................................................. 305
 Table of legislation and international instruments
Page
Maintenance Act 99 of 1998 – continued
s 15(3)(a)(i) .............................................. 187
s 15(3)(a)(ii) ..................................... 187, 304
s 15(4) ........................................................ 305
s 16 ............................................................. 163
s 16(1)(a)(i) ................................................ 51
s 16(1)(b) ..................................................... 51
s 16(2) .................................................... 51, 57
s 16(4) .......................................................... 53
s 17 ............................................................... 52
s 18 ............................................................... 52
s 18(1) .......................................................... 51
s 18(2) .......................................................... 51
s 22 ....................................................... 51, 164
s 24(1) .......................................................... 56
s 25(1) .......................................................... 52
s 25(3) .......................................................... 52
s 26(1) .......................................................... 53
s 26(2)(a)..................................................... 52
s 26(2A) ....................................................... 52
s 26(4) .......................................................... 52
ss 27–30 ........................................................ 52
s 27(1) .................................................... 52, 53
s 27(2)(b) ..................................................... 53
s 27(3) .......................................................... 53
s 27(4) .......................................................... 53
s 27(5) .......................................................... 53
s 28(1) .................................................... 52, 53
s 29(1) .......................................................... 53
s 29(2) .......................................................... 53
s 29(4) .......................................................... 53
s 30(1) .................................................... 52, 53
s 31 ...................................................................
s 31(1) .......................................................... 56
s 31(2) .......................................................... 56
s 31(4) .......................................................... 57
s 38 ............................................................... 53
s 38(a) .......................................................... 53
s 40(1) .......................................................... 57
s 40(2) .......................................................... 57
s 41 ............................................................... 56
s 43 ............................................................... 51
Maintenance of Surviving Spouses Act
27 of 1990 ................... 45, 116, 118, 163, 169,
234, 242–244, 250, 262
s 1 ............................................................... 117
s 2(1) .................................................. 117, 234
s 2(2) .......................................................... 118
s 2(3)(a)..................................................... 117
s 2(3)(b) ..................................... 118, 234, 350
s 2(3)(d)..................................................... 118
s 3 ....................................................... 117, 234
Marriage Act 21 of 1978 (Transkei) ..... 234, 235
s 1 ............................................................... 234
s 3 ............................................................... 234
395
Page
Marriage Act 25 of 1961 ..... 3–4, 26, 31, 118, 25,
31–34, 206, 208, 210–213,
217, 234, 241, 249, 251, 312
s 2(1) .................................................... 30, 208
s 2(2) .................................................... 30, 208
s 3(1) ............................................................ 30
s 4 ................................................................. 30
s 6 ................................................................. 34
s 6(1) ............................................................ 30
s 6(2) ............................................................ 30
s 6(3) ............................................................ 31
s 7 ................................................................. 30
s 8 ................................................................. 30
s 10(1)(a) .................................................... 30
s 11(1) .......................................................... 30
s 11(2) .......................................................... 30
s 11(3) .......................................................... 30
s 12 ....................................................... 31, 220
ss 14–20 ...................................................... 222
s 23 ............................................................... 31
s 24(1) .......................................................... 16
s 24A................................... 22–23, 29, 31, 220
s 24A(1) ................................................. 20, 35
s 24A(2) ....................................................... 19
s 25 ............................................................... 20
s 25(1) ............................................ 18–19, 220
s 25(2) .................................................... 18, 85
s 25(3) .......................................................... 18
s 25(4) .................................... 18–19, 220, 330
s 26 ......................................................... 17, 31
s 26(1) .................................................... 17, 34
s 26(2) .............................................. 17, 20, 34
s 26(3) .......................................................... 17
s 27 ............................................................... 16
s 28 ............................................................... 28
s 29(1) .......................................................... 31
s 29(2) ............................................ 31, 33, 210
s 29(4) .......................................................... 31
s 29A(1) ....................................................... 32
s 29A(2) ....................................................... 32
s 30(1) .................................................... 24, 32
s 30(2) .......................................................... 32
s 30(3) .................................................... 32–33
s 31 ............................................................... 30
s 33 ............................................................... 32
s 34 ............................................................... 32
Marriage and Matrimonial Property Law
Amendment Act 3 of 1988 ....... 62, 70, 89–90,
92, 138, 145, 230
s 1(a) .......................................................... 235
s 1(b) .......................................................... 235
s 2(a) .......................................................... 139
s 3 ........................................................... 71, 89
s 4 ........................................................... 71, 89
396 South African Family Law
Page
Matrimonial Affairs Act 37 of 1953 ........ 70, 113
s 5(1) .................................... 16, 179, 191, 316
s 5(3) .................................................. 316, 355
s 10(1)(a)................................................... 168
Matrimonial Property Act 88 of 1984 ...... 29, 58,
61, 64, 68, 70–71, 76,
87–90, 92, 94, 96, 98, 101,
105, 115, 138, 149–150, 230
s 1 ................................................................. 68
s 2 ........................................................... 92, 94
s 3(1) ................................ 92–93, 97, 224–225
s 3(2) .................................................... 93, 101
s 4 ................................................................. 94
s 4(1)(a)................................................. 93–94
s 4(1)(b)(i) ............................................ 95–96
s 4(1)(b)(ii) ........................................... 65, 96
s 4(1)(b)(iii) ................................................ 95
s 4(2) .................................................... 97, 116
s 5 ................................................................. 94
s 5(1) .................................................... 65, 330
s 5(2) ...................................................... 96–97
s 6 ................................................................. 94
s 6(1) ............................................................ 94
s 6(3) ............................................................ 94
s 6(4)(a)....................................................... 94
s 6(4)(b) ....................................................... 94
s 7 ................................................................. 98
s 8 ........................................... 93, 99–100, 105
s 8(1) ...................................................... 93, 99
s 8(2) .......................................................... 100
s 8(3) .......................................................... 100
s 8(4) .......................................................... 100
s 9 ............................................................... 137
s 10 ............................................................. 101
s 11 ..................................................... 6, 70–71
s 11(4) .......................................................... 70
s 12 ............................................................... 70
s 13 ......................................................... 59–60
s 14 ............................................... 71, 222, 236
s 15 ............................................... 46, 222, 236
s 15(1)–(5)................................................... 41
s 15(1) .......................................................... 71
s 15(2) ...................................... 71, 74, 76, 222
s 15(2)(a)..................................................... 71
s 15(2)(b) ............................................... 72, 74
s 15(2)(c) ............................................... 73–74
s 15(2)(d)..................................................... 73
s 15(2)(e) ..................................................... 73
s 15(2)(f) ......................................... 47, 72, 74
s 15(2)(g) ..................................................... 74
s 15(2)(h)............................................... 72, 74
s 15(3) .................................................. 71, 222
s 15(3)(a)............................................... 72–73
s 15(3)(b) ..................................................... 74
s 15(3)(c) ..................................................... 74
s 15(4) .................................................... 72–74
s 15(6) .................................................... 74, 77
Page
Matrimonial Property Act 88 of 1984 –
continued
s 15(7) .......................................................... 75
s 15(8) .......................................................... 74
s 15(9)(a) ........................................ 47, 75–77
s 15(9)(b) ......................................... 47, 77, 79
s 16 ..................................................... 222, 236
s 16(1) .................................................... 78, 81
s 16(2) .............................................. 48, 78, 81
s 17 ............................................... 81, 222, 236
s 17(1) .............................................. 71, 73, 81
s 17(1)(a) .............................................. 69, 81
s 17(1)(b) ..................................................... 81
s 17(1)(c) ..................................................... 74
s 17(2) .......................................................... 81
s 17(3) .......................................................... 81
s 17(4) .......................................................... 81
s 17(5) .............................. 46, 47, 82, 307–309
s 18 ..................................................... 222, 236
s 18(a) .......................................................... 65
s 18(b) .................................................... 66, 68
s 19 ......................................... 67–69, 222, 236
s 20 .................... 62, 77–79, 105–106, 222, 236
s 20(1) .......................................................... 78
s 20(2) .......................................................... 79
s 21 ............................................................. 226
s 21(1) ......... 21–22, 62, 85, 105, 107–111, 226
s 21(2) .................................................. 89, 226
s 21(2)(a) .................................................... 62
s 21(2)(b) ..................................................... 92
s 21(2)(c) ..................................................... 92
s 22 ......................................58–59, 88–89, 109
s 23 ..................................... 46–47, 86, 91, 116
s 23(1) .................................................... 70, 87
s 23(2) .......................................................... 87
s 23(3) .......................................................... 87
s 23(4) .......................................................... 87
s 23(5) .......................................... 86, 307–308
s 24 .................... 22–23, 86, 222, 227–228, 236
s 24(1) .................................................. 20, 227
s 24(2) ............................................ 21–22, 227
s 25(1) .......................................................... 71
s 25(2) ............................................ 62, 70, 227
s 25(3) .......................................................... 62
s 34 ............................................................... 29
s 36 ............................................................. 138
ch 1 .............................................................. 94
Matrimonial Property Amendment Act
91 of 1986 .............................................. 70, 89
Mediation in Certain Divorce Matters Act
24 of 1987 ............50, 171, 174, 191, 195–196,
232, 274, 291, 342
s 2(2) .......................................................... 175
s 3 ............................................................... 175
s 4(1) .................................................. 174–175
s 4(1)(a) .................................................... 174
 Table of legislation and international instruments
Page
Mediation in Certain Divorce Matters Act
24 of 1987 – continued
s 4(1)(b) ..................................................... 174
s 4(2) .......................................................... 174
s 4(3) .......................................................... 175
Medical Schemes Act 131 of 1998 ................ 263
s 24(2)(e) ................................................... 263
Mental Health Act 18 of 1973 ....................... 122
Mental Health Care Act 17 of 2002 .............. 122
National Credit Act 34 of 2005 ....................... 72
National Health Act 61 of 2003
s 2(c)(iii) .................................................... 305
s 2(c)(iv) .................................................... 305
s 4(3)(a)..................................................... 305
Older Persons Act 13 of 2006
s 1 ....................................................... 272, 280
s 24 ............................................................. 280
s 25(1) ........................................................ 280
s 25(2) ................................................ 105, 280
s 25(3) ........................................................ 280
s 25(5) ........................................................ 280
s 26(1) ........................................................ 280
s 26(3) ........................................................ 280
s 27(1) ........................................................ 272
s 2(6)(a)..................................................... 272
s 29(10)(b) ................................................. 272
s 29(11) ...................................................... 272
s 30(1) ........................................................ 272
s 30(2) ........................................................ 280
s 30(3) ........................................................ 280
Pension Funds Act 24 of 1956 .............. 132, 261
s 1(1) .......................................................... 131
s 37D(1) ..................................................... 134
s 37D(1)(d((i) ........................................... 133
s 37D(4)(a) ................................................ 133
s 37D(4)(a)(i)(aa) .................................... 133
s 37D(4)(b)(i) ............................................ 133
s 37D(4)(c)(i) ............................................ 133
s 37D(4)(c)(ii) ........................................... 132
397
Page
Pension Funds Act 24 of 1956 – continued
s 37D(4)(d) ................................................ 133
s 37D(6) ..................................................... 132
Post and Telecommunication-related Matters
Act 44 of 1958
s 10B ........................................................... 134
s 10B(1) ..................................................... 133
s 10F(1) ...................................................... 133
s 10F(2)(a) ................................................ 133
s 10F(2)(e) ................................................. 133
s 10F(2)(j) ................................................. 133
Prescribed Rate of Interest Act
55 of 1975 .................................................. 131
Prevention of Family Violence Act
133 of 1993 ................................................ 271
s 5 ............................................................... 271
Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act
19 of 1998 .................................................. 275
Prevention of Organised Crime Act
121 of 1998 .......................................... 66, 291
s 1(1) ............................................................ 66
s 48(1) .......................................................... 66
s 50(1) .......................................................... 66
s 52(2) .......................................................... 66
s 52(2A) ....................................................... 66
s 56(2) .......................................................... 66
s 57(1) .......................................................... 66
Sch 1 ............................................................ 66
Prohibition of Mixed Marriages Act
55 of 1949 .................................................... 29
Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000
s 1(1) .......................................................... 181
s 6(a) .......................................................... 181
s 8(b) .......................................................... 299
Reciprocal Enforcement of Maintenance
Orders Act 80 of 1963 ................................. 52
Reciprocal Enforcement of Maintenance
Orders (Countries in Africa) Act
6 of 1989 ...................................................... 52
Recognition of Customary Marriages Act
120 of 1998 ............3, 206, 211, 217, 219–220,
224–226, 228, 230,
233–234, 241, 312, 334
s 1 ............................................................... 217
s 2 ......................................................... 19, 217
s 2(1) .......................................................... 217
s 3(1) .......................................................... 218
s 3(2) .............................25, 146, 207, 235–236
s 3(3) .......................................................... 220
s 3(4)(a) .................................................... 220
s 3(4)(b) ..................................................... 220
398 South African Family Law
Page
Recognition of Customary Marriages Act
120 of 1998 – continued
s 3(4)(c) ..................................................... 220
s 3(5) .......................................................... 220
s 3(6) .......................................................... 219
s 4(2) .......................................................... 220
s 4(3)(a)..................................................... 220
s 4(3)(b) ..................................................... 220
s 4(4) .......................................................... 220
s 4(5)(a)..................................................... 221
s 4(5)(b) ..................................................... 221
s 4(7) .......................................................... 221
s 4(8) .......................................................... 221
s 4(9) .......................................................... 220
s 6 ................................................. 19, 219, 229
s 7(1) .................................................. 221–222
s 7(2) .......................................... 221–222, 224
s 7(3) .................................................. 222, 227
s 7(4) .................................................. 226, 231
s 7(5) .................................................. 226, 231
s 7(6) .................................. 223–224, 228, 231
s 7(7) .......................................................... 231
s 7(7)(a)(i) ................................................ 223
s 7(7)(a)(ii) ............................................... 223
s 7(7)(a)(iii) .............................................. 223
s 7(7)(b) ..................................................... 224
s 7(8) .................................................. 224, 231
s 8(1) .................................................. 229, 232
s 8(3) .................................................. 174, 232
s 8(4)(a)..................................... 227, 229–232
s 8(4)(b) ..................................... 225, 230–231
s 8(4)(c) ..................................................... 232
s 8(4)(d)..................................................... 232
s 8(4)(e) ..................................................... 232
s 8(5) .......................................................... 233
s 9 ....................................................... 219, 229
s 10(1) ........................................ 146, 235–237
s 10(2) ................................................ 236–237
INTERNATIONAL INSTRUMENTS
African Charter on Human and
Peoples’ Rights
art 18............................................................ 282
African Charter on the Rights and Welfare
of the Child .......................... 171,181, 295, 297
art 2.............................................................. 297
art 4.............................................................. 171
art 4(1) ........................................................ 297
art 4(2) ........................................................ 297
art 5.............................................................. 305
art 5(1) ........................................................ 297
art 6.............................................................. 297
art 7.............................................................. 297
art 8.............................................................. 297
art 9(1) ........................................................ 297
Page
Recognition of Customary Marriages Act
120 of 1998 – continued
s 10(3) ........................................................ 227
s 10(4) .............................25, 41, 234–235, 246
Sch ..................................................... 229, 235
Reform of Customary Law of Succession
and Regulation of Related Matters Act
11 of 2009
s 7 ............................................................... 145
s 7(1) .......................................................... 145
Rental Housing Act 50 of 1999 ..................... 261
s 4(1) .......................................................... 261
Repeal of the Black Administration Act and
Amendment of Certain Laws Act
28 of 2005
s 1(4) .......................................................... 145
Short Process Courts and Mediation in Certain
Civil Cases Act 103 of 1991 ....................... 197
Social Assistance Act 13 of 2004 ................... 305
South African Citizenship Act 88 of 1995 ...... 41
Special Pensions Act 69 of 1996
s 2 ............................................................... 242
s 31(1) ........................................................ 242
Superior Courts Act 10 of 2013 ...................... 54
Uniform Rules of the High Court
r 43....... 162, 174, 198, 199, 200, 233, 245, 250
r 43(1) ................................................. 198, 245
r 57............................................................... 358
Wills Act 7 of 1953
s 2B ............................................................. 194
s 4A..................................................... 356, 358
African Charter on the Rights and Welfare
of the Child – continued
art 10 ........................................................... 297
art 11(1) ...................................................... 297
art 14 ........................................................... 305
art 15(1) ...................................................... 297
art 16(1) .............................................. 283, 297
art 18(2) ...................................................... 181
art 21(2) ........................................................ 18
art 31 ........................................................... 297
Convention on Consent to Marriage,
Minimum Age for Marriage and
Registration of Marriage
art 2 ............................................................... 18
 Table of legislation and international instruments
Page
Convention on the Elimination of All Forms
of Discrimination Against Women ........... 171
art 2.............................................................. 282
art 15(3)(d) ................................................. 181
art 16(1)(d) ................................................. 171
art 16(2) ........................................................ 18
Convention on the Rights of
the Child .................................... 296, 297, 298
art 1.............................................................. 296
art 3(1) ................................................ 171, 296
art 6.............................................................. 296
art 7.............................................................. 296
art 12............................................................ 296
arts 13–16 .................................................... 296
art 18(1) ...................................................... 181
art 19............................................................ 296
art 19(1) ...................................................... 283
art 24............................................................ 305
art 26(1) ...................................................... 305
art 27............................................................ 305
art 28............................................................ 296
art 32............................................................ 296
Hague Convention on Protection of
Children and Co-operation in Respect of
Inter-country Adoption ..................... 323, 324
art 2(1) ........................................................ 323
art 4.............................................................. 324
art 5.............................................................. 324
art 10............................................................ 324
art 11............................................................ 324
art 14............................................................ 323
art 16............................................................ 323
art 16(1)(a) ................................................. 323
art 22............................................................ 323
399
Page
Hague Convention on Protection of
Children and Co-operation in Respect of
Inter-country Adoption – continued
art 23 ........................................................... 325
art 24 ........................................................... 325
art 26 ........................................................... 325
art 27 ........................................................... 325
Hague Convention on the Civil Aspects of
International Child Abduction ......... 190, 192,
323, 340
art 1 ............................................................. 341
art 2 ............................................................. 341
art 3 ............................................................. 341
art 3(a) ........................................................ 341
art 4 ............................................................. 342
art 5(a) ........................................................ 341
art 5(b) ........................................................ 341
art 7 ............................................................. 343
art 7(a) ........................................................ 343
art 7(c) ......................................................... 343
art 8 ............................................................. 342
art 10 ........................................................... 343
art 11 ........................................................... 343
art 12 ........................................................... 343
art 13 ........................................... 344–345, 347
art 13(a) .............................................. 344, 347
art 13(b) .............................................. 345, 347
art 14 ................................................... 323, 341
art 15 ........................................................... 341
art 16 ................................................... 323, 347
art 16(1)(a) ................................................. 323
art 17 ........................................................... 344
art 18 ........................................................... 347
art 20 ........................................................... 345
art 26 ........................................................... 348
art 29 ........................................................... 342
 INDEX
Page
Abandoned child see Child in need of care and
protection
Abduction see International child abduction
Abortion
minor’s consent ..............................................333
Abuse of older person ................................272, 280
Access see also Contact
common law concept ............................. 177–178
terminology............................................. 177–178
Access to court ............................................ 299–300
Accrual system
accrual claim ............................................... 92–93
accrual sharing and asset sharing
distinguished .......................................... 93–94
advantages and disadvantages ............... 102–103
assets excluded in antenuptial contract ..........96
calculation of accrual
assets excluded from accrual................. 95–96
commencement value............................ 94–95
example .................................................. 98–99
formula .........................................................94
furnishing of particulars ..............................98
relevant date ........................................... 97–98
competition or lottery winnings ................... 95n
customary marriage ................................222, 225
death of spouse ...............................................116
deferment .......................................................101
donations inter vivos between spouses ....... 96–97
exclusion ............................................... 90–91, 92
forfeiture order ..............................................136
immediate division/new accrual ..... 99–100, 105
inheritance, legacy or donation ......................96
introduction of .................................................61
marriages subject to .........................................92
matrimonial home ........................................ 96n
non-patrimonial damages ..........................65, 95
postponed community of profit ......................92
protection of spouse’s right to share....... 99–101
rationale for ................................................ 91–92
renunciation of claim .....................................101
right to accrual sharing and claim
distinguished ................................................93
satisfaction of claim ........................................101
standard-form antenuptial contract ................90
Actio communi dividundo ......................................257
Actio iniuriarum .................................................... 7–8
401
Page
Actio Pauliana utilis ....................................... 80, 100
Adoption
acquisition of parental responsibilities
and rights ................................................... 317
adoptable child .............................................. 317
adoptive parent/s .................................. 317–318
advertising child for adoption ...................... 321
application and assessment ........................... 318
biological father ............................................. 318
child’s consent ............................................... 319
civil union partner ......................................... 318
conditions to be met .............................. 320–321
consent requirements ............................ 318–320
consideration of application ................. 320–321
cultural and community diversity ................. 318
effect of order ........................................ 321–322
fees .................................................................. 321
financial means .............................................. 318
foster parent ................................................... 318
freeing order .................................................. 320
inter-country adoption .......................... 323–325
life partner ..................................................... 318
payment inducing .......................................... 321
pension fund liability, effect on .................. 321n
post-adoption agreement .............................. 322
prohibited degrees of relationship ........ 26, 207,
322
recognition of foreign adoption ................... 325
Register on Adoptable Children and
Prospective Adoptive Parents ................... 317
rescission of order.................................. 322–323
same-sex life partner .............................. 265–266
stepchild ................................................. 321–322
termination of duty of support ..................... 350
termination of parental responsibilities
and rights ................................... 321–322, 350
unmarried biological father’s
consent ............................................... 318–319
unmarried person .......................................... 317
unreasonably withholding consent............... 320
withdrawal of consent .................................... 320
Xhosa customary law ................................... 350n
Adultery
abolition of action against third party ............ 42
irretrievable breakdown of marriage ............ 121
Affinity .................................................................. 27
402 South African Family Law
Page
African Charter on Human and People’s Rights
domestic violence ...........................................282
African Charter on the Rights and Welfare of the
Child .............................. 18n, 171, 181, 207, 283,
295, 297, 298, 305
child’s best interests ...............................171, 295
domestic violence ...........................................283
ratification by South Africa ............................297
scope of rights.................................................297
Age of majority ................................... 17, 178n, 187
Age of puberty ................................................. 17–18
Agency .................................................................260
Aliens Control Act 96 of 1991 ........................ 43–44
Alteration of matrimonial property system
customary marriage ........................................226
donation between spouses ..................... 109–110
effect of change from community of property
to separation of property ...........................109
extra-judicial alteration .......................... 109–111
joint application to court
absence of prejudice ..................................108
conditions for change of property
system .....................................................106
domicile and residence .............................108
financial position of spouses .....................108
notice requirements ..................................108
procedure ........................................... 107–108
sound reasons for change..........................107
mechanisms available .....................................105
postnuptial contract .......................................110
principle of immutability ...............................105
retroactive alteration .............................. 108–109
universal partnership ............................. 110–111
Alternative care order ................................. 338–339
Annulment
divorce distinguished ........................ 35n, 36, 38
grounds see Void marriage; Voidable marriage
Antenuptial contract
definition ............................................................83
agreements covered by term ...................... 83–84
cancellation or amendment .............. 88–90, 105
contents ....................................................... 86–88
contra bonos mores ...............................................86
death of spouse, effect of ...............................116
engagement contract as ............. 83–84, 139–140
exclusion of accrual system .................. 90–91, 92
exclusion of assets from accrual ......................96
exclusion of assets from community of
property ..................................................64, 83
exclusion of community of property ......61, 83, 86
execution abroad..............................................84
foreign contract ................................................84
formalities .........................................................84
indexation clause........................................... 96n
informal contract, effect of ..............................84
interpretation ...................................................88
marriage settlement ................................... 87–88
matrimonial property system ...........................86
meaning for redistribution purposes .... 139–141
Page
Antenuptial contract – continued
minor’s contract............................. 21–22, 85–86
notarial execution............................................ 84
postnuptial execution and registration .... 84–85
purpose....................................................... 83–84
putative marriage ............................................. 40
rectification .............................................. 89, 105
registration ....................................................... 84
reversion clause.................................. 58n, 87–88
right of recourse in respect of household
necessaries ............................................. 86–87
standard-form................................................... 90
succession ......................................................... 87
termination ...................................................... 90
unequal bargaining position ...............86n, 141n
Appeal against maintenance order ..................... 52
Arbitration .......................................................... 198
Arrest
domestic violence .......................... 276–277, 278
Arrhae sponsalitiae ............................................ 10, 65
Artificial fertilisation .......................................... 311
Asset forfeiture
child’s right to care and .............................. 291n
Assignment order
parental responsibilities and rights ...... 315–316
Assumed tutor .................................................... 355
Attachment of assets
future child maintenance payments ......... 54–56
separate assets where spouses married in
community ............................................. 66–67
Attachment of emoluments
maintenance debtor .................................. 52–53
Best interests of child .................. 22, 23, 54–56, 58,
171–174, 183, 191, 294–296,
326–327, 329–330, 349
Bigamy ............................................................ 25–26
Boedelhouderschap ................................................. 116
Breach of promise .......................................... 6, 8–9
Capacity to act
civil marriage.............................................. 14–24
civil union............................................... 205–206
customary marriage ............................... 234–236
engagement........................................................ 5
litigation ................................................. 299–300
minor ................................................................ 16
Care
definition .................................................. 180, 302
assignment by court order .................... 315–316
child’s wishes to be considered ..................... 303
compliance order .......................................... 190
constitutional right ................................ 289–291
contempt of court .......................................... 191
custody and .................................... 177–178, 180
deferred/postponed care.............................. 183
discipline ........................................................ 302
domestic violence .......................................... 183
interdict against non-care-giving
parent ................................................. 189–190
interim care .................................................... 198

Page
Care – continued
joint care ................................................. 181–183
legal representation of child in care
proceedings ................................................292
maternal preference............................... 180–181
orders on divorce ................................... 180–184
parental disagreement ...................................303
rescission, suspension or variation of
order ................................................... 191–192
residence restrictions .....................................183
secretly removing child ..................................191
sole care ..................................................181, 330
split/divided care ................................... 183–184
statutory concept ............................ 177–178, 180
tender-years rule .......................................... 181n
terminology............................................. 177–178
Care-giver
definition ............................................. 178n, 306n
duty of support ....................................... 306–307
Child see also Minor
abduction see International child abduction
abuse, duty to report ......................................279
adoption see Adoption
best interests ..... 22, 23, 54–56, 58, 171–174, 183
191, 294–296, 326–327, 329–330, 349
born of putative marriage ................................39
care see Care
contact see Contact
discipline .........................................................302
divorce, effect of see Child’s interests on
divorce
domestic violence see Domestic violence
emigration see Emigration
foster care see Foster care
guardianship see Guardianship
in need of care and protection see Child in
need of care and protection
litigation by ............................................. 299–300
maintenance see Child maintenance
medical treatment, operation or HIV
test ....................................................... 332–334
parental responsibilities and rights see Parental
responsibilities and rights
pater est quem nuptiae demonstrant ..............35, 211
prevention and early intervention
programmes ............................... 280–281, 339
removal to or from South Africa see
International child abduction; Emigration
rights see Children’s rights
social grants/welfare programmes ................305
voidable marriage ....................................... 37–38
Child abuse
domestic violence see Domestic violence
duty to report ..................................................279
investigation and removal into temporary
safe care .............................................. 334–336
prevention and early intervention......... 280–281
Child at risk
prevention and early intervention......... 280–281
Child-headed household ..... 3, 178n, 307, 337, 339
Index 403
Page
Child in need of care and protection
child participation and legal
representation ........................................... 338
grounds for finding ............................... 336–338
investigation and removal into temporary
safe care ............................................. 334–336
orders available ...................................... 338–340
settlement ............................................... 337–338
Child labour ....................................................... 337
Child maintenance
definition .......................................................... 187
adult dependent child ................... 178, 349, 351
attachment of assets securing future
payments ................................................ 54–56
deceased estate....................................... 49n, 350
expenses included ......................................... 303
factors to be considered ................................ 304
grandparents’ duty ................................ 305–306
legal representation for child ....................... 293
locus standi of adult child ....................... 187–188
mistake as to paternity ................................... 309
orders on divorce ................................... 187–189
parents’ duty .................................................. 305
parents’ means ....................................... 189, 305
person having care of child ................... 306–307
reciprocal duty ....................................... 309–310
recovery of expenses .............................. 308–309
rescission, suspension or variation of
order .................................................. 191–192
right of recourse against child ...................... 308
scope of duty of support ........................ 303–304
settlement agreement .................................... 304
siblings’ duty .................................. 306, 309–310
state’s duty .............................................. 304–305
stepchild ......................................... 304, 307–308
termination of duty of support
adoption of child ....................................... 350
child becoming self-supporting ................ 351
child entering marriage or civil union..... 351
death of child ............................................ 350
liable party’s insolvency .................... 351–352
termination of maintenance order ............... 352
Child protection order .............................. 339–340
Child’s interests on divorce
aspects court may regulate .................... 177–178
best interest of child .............................. 171–174
care ......................................................... 180–184
child’s views .................................................... 176
contact .................................................... 184–186
court’s function and powers ......... 175–177, 330
customary marriage ....................................... 232
enforcement of court orders................. 189–191
expert’s report ............................................... 176
Family Advocate’s enquiry............. 174–175, 176
guardianship .......................................... 178–180
legal representation for child ............... 176–177
maintenance .......................................... 187–189
mediation ............................................... 195–196
orders available ...................................... 177–178
overview .......................................................... 171
404 South African Family Law
Page
Child’s interests on divorce – continued
rescission, suspension or variation of
order ................................................... 191–192
stepchild ..........................................................175
Children’s Court
consent of presiding officer to minor’s
marriage ............................................................18
Children’s rights
access to court......................................... 299–300
access to information on health care/
status ...........................................................299
African Charter on the Rights and Welfare of
the Child ................... 18n, 171, 181, 207, 283,
295, 297, 298, 305
best interests of child .............. 22, 23, 54–56, 58,
171–174, 183, 191, 294–296,
326–327, 329–330, 349
Children’s Act 38 of 2005 ...................... 297–300
confidentiality re health status ......................299
Convention on the Rights of the Child ........171,
181, 282, 295, 296, 298, 305
detrimental social, cultural and religious
practices .............................................. 298–299
disability or chronic illness ............................298
enforcement ...................................................300
family, parental or alternative care, nutrition,
shelter, health care and social
services ................................................ 289–291
female circumcision and genital mutilation .299
legal representation ............................... 291–293
male circumcision ..........................................299
marriage age and consent ...................... 298–299
name................................................................289
paramountcy of best interests ................ 294–296
protection from maltreatment, neglect, abuse
or degradation ...........................................291
relationship with parental rights ........ 287, 288n
right to be heard/express views ....296, 297, 298
virginity testing ...............................................299
Circumcision .......................................................299
Civil marriage
definition ............................................................13
abolition of husband’s marital
power .......................................... 60, 61, 70–71
adoptive parent and child ................................26
adoptive siblings ...............................................26
agreement ................................................... 24–25
annulment see Void Marriage; Voidable
marriage
banns .............................................................. 31n
bigamy ......................................................... 25–26
capacity to act
declared prodigal .........................................14
mentally ill person .......................................15
minor ...................................................... 16–24
overview ........................................................14
person under curatorship for being
incapable of managing own affairs.........15
consequences
invariable see Invariable consequences of
marriage
Page
Civil marriage – continued
consequences – continued
overview ....................................................... 41
variable see Variable consequences of
marriage
consortium .................................................... 42–44
contract distinguished ..................................... 13
customary marriage distinguished .................. 13
death of spouse ...................................... 115–118
dissolution see Dissolution of civil marriage
divorce see Divorce action; Divorce (civil
marriage)
donations between spouses ....................... 58–59
duress.......................................................... 25, 35
engagement see Engagement
existing marriage or civil union .......... 25–26, 33
family name ...................................................... 59
father’s responsibilities and rights ................ 312
formalities
affirmative reply .......................................... 32
authorised marriage officer ........................ 30
during ceremony ................................... 31–32
error, oversight or omission ........... 31–32, 33
identity documents or affidavit ............ 16, 31
preceding ceremony ................................... 31
wording of marriage formula ..................... 32
garden of private dwelling ........ 31–32, 33, 210n
guardian and ward ........................................... 29
lawfulness ................................................... 25–29
maintenance see Spousal maintenance
marriage certificate.......................................... 32
marriage in community see Marriage in
community of property
marriage out of community see Marriage out of
community of property
matrimonial home ..................................... 57–58
minimum age ..................................... 16n, 17–18
minor .................................................... 16–24, 34
misrepresentation ............................................ 25
mistake.................................................. 24–25, 35
mixed marriage ................................................ 29
monogamous ............................................. 25–26
objection to ...................................................... 31
overview .............................................................. 3
party to customary marriage ................. 235–237
pregnancy with another man’s
child ................................................. 25, 35–36
presence of both parties .................................. 31
prohibited degrees of relationship ..... 26–29, 34
proxy, by ........................................................... 31
public office or private dwelling with
open doors ................................................... 31
putative marriage ........................... 25–26, 38–40
race, former restrictions .................................. 29
registration ....................................................... 32
religious blessing.............................................. 32
religious marriage distinguished .................... 13
same-sex couple ......................................... 26, 33
status of spouses ............................................... 41
stuprum .................................................. 25, 35–36

Page
Civil marriage – continued
subsequent customary marriage ............ 234–235
time and place ..................................................31
transsexual person ............................................26
undue influence .........................................25, 35
void marriage .............................................. 33–34
voidable marriage ....................................... 34–38
wife assuming husband’s surname ..................59
witnesses ............................................................31
wording of marriage formula ..........................32
Civil union
definition ..........................................................205
adoptive parent and child ..............................207
agreement .......................................................206
capacity to act ......................................... 205–206
consequences
invariable consequences .................... 211–212
matrimonial property system ....................212
overview .............................................. 210–211
constitutionality of Civil Union Act 17
of 2006 ........................................................213
dissolution ............................................... 212–213
father’s responsibilities and rights ................312
formalities
affirmative reply .........................................210
authorised marriage officer............... 207–209
during ceremony................................ 209–210
error, oversight or omission ......................210
identity documents or affidavit .................209
preceding ceremony ..................................209
registration .................................................210
wording of civil union formula .................210
lawfulness ................................................ 206–207
marriage or civil partnership .................205, 209
matrimonial property system .........................212
minor’s ineligibility ........................................206
monogamous .................................. 206–207, 211
objection by marriage officer ................ 208–209
objection to intended union .........................209
overview .......................................................3, 205
party to customary marriage .................. 235–237
pater est quem nuptiae demonstrant ....................211
prohibited degrees of relationship................207
proxy, by ..........................................................209
registration ......................................................210
religious solemnisation ..................................208
same or opposite sex ......................................207
surname ............................................ 59, 211–212
time and place ........................................ 209–210
witnesses ..........................................................209
Clean-break principle ......................... 146–147, 162
Close corporation
winding up on divorce ................................ 130n
Cohabitation see Life partnership
Community of property see Marriage in
community of property
Compensation for occupational injury .............261
Consanguinity ................................................. 26–27
Index 405
Page
Consent to minor’s marriage
civil marriage see Minor’s civil marriage
customary marriage see Minor’s customary
marriage
Consortium
definition ............................................................ 42
adultery............................................................. 42
cohabitation, legislation interfering
with ......................................................... 42–43
divorce as only remedy between spouses ....... 42
right to family life, right to dignity and .... 43–44
step-parent.................................................... 307n
third party infringing................................. 42–43
totality of rights comprising ............................ 42
Constitutional issues
age of puberty .................................................. 18
benefits under Friendly Societies Act
25 of 1956 .................................................... 65
best interests of child .............. 22, 23, 54–56, 58,
171, 294–296, 349
breach of promise .......................................... 8, 9
children’s rights see Children’s rights
Civil Union Act 17 of 2006 ............................ 213
civil union subsequent to customary
marriage ..................................................... 236
conversion of religious marriage into
civil marriage ..................................... 250–251
divorce/religious marriage ........................... 126
domestic violence .................................. 281–283
dum casta clause............................................ 166n
family life .................................................... 43–44
family name/surname ............................... 59–60
first wife’s consent to further customary
marriage ..................................................... 219
Hague Convention on International
Child Abduction ................................ 348–349
headship of family ........................................... 60
Hindu marriages ............................................ 251
immigration permits ...................................... 264
interpretation of statutes ........................... 23, 32
legal representation for child in divorce
proceedings ....................................... 176–177
life partnership ...................................... 267–268
limitation clause ............................................. 23n
limitation on publication of particulars
of divorce ................................................... 201
maintenance of surviving life
partner ............................................... 262–263
maternal/parental care ................................. 181
minor’s civil union ......................................... 206
Muslim marriages .......................... 241–242, 247
objection to solemnising same-sex civil
unions ................................................ 208–209
patrimonial consequences of monogamous
customary marriage ........................... 221–222
pension interests on divorce ................. 132, 231
prodigals ..................................... 48, 81, 100–101
redistribution order ............................... 141–143
religious marriages ........................................ 126
same-sex marriages ........................................ 205
406 South African Family Law
Page
Constitutional issues – continued
same-sex parents ..................................... 265–266
seduction ...........................................................11
sex discrimination ......................................... 18n
stuprum ........................................................... 35n
surviving spouse of polygynous
marriage ............................................. 243–244
Contact
definition ..................................................184, 303
access and ....................................... 177–178, 184
assignment by court order ..................... 315–316
change in residential address ........................190
child’s views ....................................................185
compliance order ...........................................190
contempt of court ..........................................191
criminal sanctions ..........................................190
domestic violence ...........................................185
interim contact ...............................................198
lesbian/gay parent ................................. 185–186
orders on divorce ................................... 184–186
phased-in contact ................................... 184–185
postponed contact ..........................................185
prohibited physical contact ...........................185
reasonable contact .........................................184
reasonable force to enforce contact ..............190
rescission, suspension or variation of
order ................................................... 191–192
statutory concept ............................ 177–178, 184
supervised contact ..........................................185
suspension.......................................................185
terminology............................................. 177–178
Contempt of court
care, contact or guardianship order .............191
maintenance order ...........................................57
Contraception
minor, consent requirements ........................333
Contract
antenuptial contract see Antenuptial contract
civil marriage distinguished .............................13
life partnership contract ........................ 259–260
Muslim marriage ............................................244
Contractual damages for breach of promise..... 8–9
Contractual debt
liability of joint estate ........................... 68, 69–70
Contumelia ................................................................6
Convention on the Elimination of All Forms of
Discrimination Against Women
child’s best interests .......................................171
domestic violence ...........................................282
Convention on the Rights of the Child ....171, 181,
282, 295, 296, 298, 305
child’s best interests ...............................171, 295
domestic violence ................................... 282–283
ratification by South Africa ............................296
scope of rights.................................................296
Corporal punishment .........................................302
Costs
domestic violence proceedings .....................279
international child abduction
proceedings ................................................348
Page
Costs – continued
matrimonial action
contribution towards costs ........ 198, 199–200
exclusion from joint estate ......................... 66
final order .................................................. 200
no-fault principle......................................... 46
Curatorship
definition .......................................................... 357
assumed curator ............................................. 358
capacity to enter into civil marriage
mentally ill person ....................................... 15
person incapable of managing own
affairs ....................................................... 15
prodigal ........................................................ 14
curator ad litem ........................................ 357, 358
curator bonis ..................................................... 357
curator dative ................................................. 358
curator nominate ........................................... 358
curator personae ................................................ 357
locus standi to institute divorce
proceedings ............................................... 195
requirements for appointment ............. 358–359
rights and duties ............................................ 359
termination .................................................... 359
Custody see also Care
common law concept............................. 177–178
terminology ............................................ 177–178
Customary law
definition .......................................................... 217
living versus official law ............................... 222n
Customary marriage
definition .......................................................... 217
capacity to act ......................................... 234–236
civil marriage distinguished ............................ 13
codes on Zulu law .................................. 217–218
conversion into civil marriage............... 236–237
death of spouse ...................................... 233–234
divorce see Divorce (customary marriage)
first wife’s consent to further marriage ........ 219
house ranking ........................................ 222–223
legal requirements
post 15 November 2000 .................... 218–220
pre 15 November 2000...................... 217–218
lobolo ................................................ 218, 219, 232
minor’s marriage
consent requirements ............... 218, 219–220
patrimonial consequences where no
consent .......................................... 227–228
overview .............................................................. 3
patrimonial consequences
alteration of matrimonial property
system .................................................... 226
monogamous marriage ..................... 221–222
polygynous marriage post
15 November ....................... 2000, 223–226
polygynous marriage pre
15 November 2000 ........................ 222–223
prohibited degrees of relationship ............... 219
recognition of ................................................ 217
redistribution order ............... 138, 142–143, 145

Page
Customary marriage – continued
registration .............................................. 220–221
subsequent civil marriage/union .......... 235–237
subsequent to civil marriage/union ...... 234–235
termination ............................................. 229–234
wife’s status .....................................................229
Damages
customary law, for seduction or
pregnancy ................................................ 313n
non-patrimonial damages ..........................65, 95
personal injury inflicted by other spouse........66
seduction ..................................................... 10–11
termination of engagement ........................... 7–9
Death of spouse
customary marriage ................................ 233–234
maintenance of surviving spouse........... 116–118
marriage in community of property ...... 115–116
marriage out of community of property .......116
Delictual debt
liability of joint estate ............... 67–68, 68–69, 70
Dependant’s action for loss of support
life partner ...................................... 262–263, 264
Muslim marriage .................................... 244–245
Discipline .............................................................302
Dissolution of civil marriage
annulment see Void marriage; Voidable
marriage
death ....................................................... 115–118
divorce see Divorce action; Divorce (civil
marriage)
extra-judicial separation .................................113
judicial separation ..................................113, 201
methods ..........................................................113
Dissolution of civil union ........................... 212–213
Divorce
civil marriage see Divorce action; Divorce (civil
marriage)
customary marriage see Divorce (customary
marriage)
Hindu marriage ...................................... 250–251
Muslim marriage ....................................245, 246
Divorce action
definition ..........................................................191
adversarial procedure ....................................195
arbitration .......................................................198
Divorce action – continued
curator bonis not having locus standi ................195
final order for costs ........................................200
instituting ........................................................195
jurisdiction .............................................. 194–195
limitation on publication of particulars ........201
mediation ................................................ 195–197
relief pendente lite ..................................... 198–200
Divorce (civil marriage)
annulment distinguished .................. 35n, 36, 38
attempted reconciliation ...............................124
child, effect on see Child’s interests on divorce
clean-break principle ..................... 146–147, 162
defences ..........................................................124
discretion to refuse ................................. 124–126
Index 407
Page
Divorce (civil marriage) – continued
former fault principle .................................... 119
grounds .......................................................... 119
incurable mental illness or continuous
unconsciousness ................................ 122–124
irretrievable breakdown of
marriage ............................................. 119–122
limitation on publication of particulars ....... 201
maintenance of spouse see Spousal
maintenance
no-fault basis .................................................. 119
patrimonial consequences see Patrimonial
consequences of divorce
personal consequences.......................... 193–194
proceedings see Divorce action
religious marriage .................................. 124–125
status of parties .............................................. 193
will, effect on .......................................... 193–194
Divorce (customary marriage)
child’s interests .............................................. 232
grounds .......................................................... 229
interim relief .................................................. 233
irretrievable breakdown of marriage ............ 229
joinder of parties ........................................... 232
jurisdiction ..................................................... 232
maintenance .................................................. 232
mediation ....................................................... 233
patrimonial consequences
court’s powers .................................... 229–230
forfeiture of benefits ......................... 231–232
lobolo ........................................................... 232
pension interests ....................................... 231
redistribution of assets ............. 138, 142–143,
145, 230–231
procedure ....................................................... 233
Domestic partnership see Life partnership
Domestic violence
definition .......................................................... 274
abuse of older person ............................ 272, 280
background .................................................... 271
care order ....................................................... 183
child victim ..................... 272, 279, 280–281, 330
conduct constituting...................................... 274
constitutional issues ............................... 281–283
contact order.................................................. 185
domestic relationship .................................... 273
investigation by Family Advocate .................. 274
life partners .................................................... 261
non-disclosure of complainant’s address ..... 275
ordinary civil and criminal
remedies ............................................ 271–272
overview .............................................................. 4
police protection of complainant at
scene .......................................................... 278
protection order see Protection order
reporting abuse ...................................... 279–280
shelter and medical help ............................... 278
Donation
alteration of matrimonial property
system ................................................. 109–110
408 South African Family Law
Page
Donation – continued
between spouses ....... 58–59, 89, 96–97, 109–110
exclusion from accrual ............................... 96–97
exclusion from joint estate ..............................64
marriage settlement ................................... 87–88
Donations tax ......................................................261
Dum casta clause ....................................51, 164, 166
Duress
marriage, effect on .....................................25, 35
Duty of support
child maintenance see Child maintenance
child’s duty to support parents, grandparents
and siblings......................................... 309–310
death, effect of ..................................................45
deliberate impoverishment ........................ 44–45
divorce, effect of .......................................45, 157
liability for household necessaries
distinguished ................................................46
liability to third parties .....................................45
life partners ............................................. 266–267
litigation costs ...................................................46
Muslim marriage ............................................245
scope of duty ............................................... 44–45
separation, effect of .................................... 45–46
spousal see Spousal maintenance
termination of duty .................................... 45–46
Early intervention programmes ......... 280–281, 339
Economic abuse ..................................... 274n, 280n
Ejectment from matrimonial home ............... 57–58
Emigration
child’s best interests ............................... 326–327
factors to be considered .............................. 326n
legal representation of child..........................293
Engagement
definition ..............................................................5
capacity to act .....................................................5
consensus ..............................................................5
exclusion of gifts from joint estate ..................65
faithfulness requirement....................................6
married person ............................................... 5–6
material misrepresentation ................................5
minor, parent’s consent .....................................5
nature of agreement ....................................... 5n
not required for valid marriage .........................5
offer and acceptance ..........................................5
requirements for valid engagement .............. 5–6
setting of wedding date ......................................6
termination
breach of promise ..........................................6
contractual damages for breach of
promise .................................................. 8–9
delictual damages for personality
infringement .......................................... 7–8
grounds for ................................................. 6–7
justa causa ................................................... 6–7
lack of desire to proceed with
marriage ................................................. 6–7
return of engagement gifts...................... 9–10
secret marriage to another ........................ 7–8
Page
Enticement ........................................................... 42
Estate duty .......................................................... 261
Estoppel
life partnership .............................................. 260
step-parent’s liability ...................................... 308
Extra-judicial separation .................................... 113
Family
definition .............................................................. 3
immediate and extended family ....................... 3
violence see Domestic violence
Family Advocate
appearance at divorce action or
application ................................................. 175
central authority for international child
abduction purposes ........................... 342–343
child welfare enquiry on divorce ......... 174–175,
176, 232
contact, nomination of person to
supervise .................................................... 185
domestic violence investigation .................... 274
life partnership dispute ......................... 312–313
maintenance investigation .............................. 50
mediation ....................................................... 196
parental responsibilities and rights
agreement .......................................... 314–315
parenting plan ....................................... 327–328
qualifications ................................................ 175n
role and functions......................174n, 175n, 196
Family life ....................................................... 43–44
Family name ......................................................... 59
Family preservation programme ....................... 339
Father’s responsibilities and rights see Parental
responsibilities and rights
Female circumcision and genital
mutilation ....................................................... 299
Fideicommissum
exclusion of property from joint estate .......... 64
Foreign adoption
recognition ..................................................... 325
Foreign marriage
antenuptial contract ........................................ 84
redistribution order ............................... 139–141
Forfeiture order
accrual system ................................................ 136
benefits forfeitable ................................. 136–137
court not entitled to make of own
accord ...................................................... 135n
customary marriage ............................... 231–232
factors to be considered ................................ 135
fairness and ............................................ 135–136
marriage in community of property ..... 136, 137
retirement annuity ......................................... 137
substantial misconduct .................................. 135
undue benefit if not granted ................ 135–136
Foster care
adoption by foster parent .............. 317–318, 321
as parental care ...................................... 290, 291
foster parent as care-giver .................178n, 306n
lapsed foster care orders ............................. 338n

Page
Foster care – continued
placement of child in need of care and
protection ...................................................338
Fraudulent concealment of sterility............... 36–37
Freeing order
pending adoption ...........................................320
Guardianship
definition .......................................... 178–179, 301
administration of child’s estate .....................301
appointment in will ................................316, 355
assignment by court order .............................316
assumed tutor .................................................355
both parents’ consent, acts requiring ...........179
child’s wishes to be considered .....................301
compliance order ...........................................190
consent to adoption ............................... 318–320
consent to emigration ............................ 326–327
consent to minor’s marriage ..................... 16–17
contempt of court ..........................................191
guardianship simpliciter ...................................179
High Court as upper guardian .............. 329–330
joint consent ........................................... 325–327
joint guardianship .......................... 179, 325–327
marriage with ward ...........................................29
orders on divorce ................................... 179–180
overview ...............................................................4
requirements for appointment ......................356
rescission, suspension or variation of
order ................................................... 191–192
rights and duties ..................................... 356–357
single guardianship ........................................179
sole guardianship ........................... 179–180, 330
supposed or putative tutor .............................356
termination .....................................................357
testamentary guardian ...........................316, 355
tutor dative ......................................................356
types of guardians ................................... 355–356
Habitual criminal ................................................122
Habitual residence ..............................................342
Hague Convention on Inter-Country
Adoption ................................................. 323–325
Hague Convention on International Child
Abduction ............................... 190, 192, 340–341
Harassment ...................................................... 274n
Harbouring ..................................................... 42–43
Headship of family .......................................... 59–60
High Court
amendment of antenuptial contract ......... 89–90
consent to minor’s marriage ............. 18–19, 330
enforcement of maintenance order .......... 53–54
upper guardian of all minors................. 329–330
Hindu marriage
constitutional issues .......................................251
conversion into civil marriage ............... 250–251
divorce ..................................................... 250–251
Hindu marriage law .................................... 249n
intestate succession ................................ 249–250
recognition ............................................. 249–251
HIV test on child ......................................... 333–334
Index 409
Page
Household necessaries
definition ............................................................ 47
capacity to incur debts ............................... 47–48
defence that purchase on credit unnecessary
as sufficient funds made available .............. 49
duty of support distinguished ......................... 46
items constituting ...................................... 47–48
joint household ................................................ 47
liability for debt................................................ 46
marriage in community of property ............... 46
marriage out of community of property ........ 46
objective or subjective approach............... 47–48
relevance of rules ............................................. 46
revocation of capacity to purchase
court order .................................................. 48
notice to third parties ........................... 48–49
right of recourse ........................................ 86–87
valid civil marriage ........................................... 47
Idda ...................................................................... 246
Immediate division of matrimonial
property ................................ 78–79, 99–100, 105
Immigration permits .......................................... 264
Immutability principle ....................................... 105
Impotence............................................................. 36
Imprisonment
failure to pay maintenance ....................... 56, 57
irretrievable breakdown of marriage ............ 122
Indexation of asset excluded from accrual ...... 96n
Inheritance
exclusion from accrual .................................... 96
exclusion from joint estate .............................. 64
Insolvency ........................................................... 261
Insurance policy
benefits ceded by husband to wife .................. 65
disability payments, exclusion from joint
estate ............................................................ 65
life partner ..................................................... 261
same-sex life partner .............................. 264–265
when rights fall into joint estate ................... 63n
whether proceeds fall into joint estate or
deceased estate on death ........................ 115n
Interdict
alienation of joint estate ............................ 79–80
removal of child from lawful care ......... 189–190
third party contact with child........................ 349
Interim protection order ........................... 274–277
Interim relief
contribution towards costs .................... 199–200
court’s power to grant ................................... 198
customary divorce .......................................... 233
maintenance pendente lite ............... 199–200, 245
validity of marriage in dispute .............. 198–199
International child abduction
children covered by provisions ..................... 342
comity and co-operation between
Convention states ...................................... 348
conditions/undertakings re return .............. 348
constitutional issues ............................... 348–349
costs and expenses ......................................... 348
410 South African Family Law
Page
International child abduction – continued
direct approach to court ............................. 342n
duties of central authority...................... 342–343
exceptions/defences to mandatory return
child objects to being returned......... 346–347
consent or acquiescence.................... 344–345
grave risk to child ............................... 345–346
human rights issues....................................347
expeditiousness of proceedings.....................343
Family Advocate as central authority .... 342–343
habitual residence ..........................................342
Hague Convention on International Child
Abduction ........................... 190, 192, 340–341
jurisdiction ......................................... 342n, 343n
legislation ................................................ 340–341
mandatory return ................................... 343–344
mirror order ...................................................348
order for return ...................................... 347–348
order refusing return .....................................347
rights of custody and rights of access ............341
search for and return of child .......................343
wrongful removal or retention .............. 341–342
Intersexual.......................................................... 26n
Intestate succession
Hindu marriage ...................................... 249–250
Muslim marriage .................................... 243–244
rights between spouses .....................................41
same-sex life partners .....................................266
Invariable consequences of civil union ..... 211–212
Invariable consequences of marriage
consortium .................................................... 42–44
donations between spouses ........................ 58–59
family name ......................................................59
headship of family ...................................... 59–60
matrimonial home ..................................... 57–58
overview .............................................................41
spousal maintenance .................................. 44–57
status of spouses................................................41
Irretrievable breakdown of marriage
adultery ...........................................................121
customary marriage ........................................229
guidelines ................................................ 121–122
imprisonment of habitual criminal ...............122
no longer living together ...............................121
subjective and objective approach ................120
test for ..................................................... 119–120
Isondlo ....................................................... 232, 313n
Jewish marriage
divorce ..................................................... 125–126
Jocalia
exclusion from joint estate ..............................65
Joint care ..................................................... 181–183
Joint guardianship .............................. 179, 325–327
Joint will amending antenuptial contract ...........89
Judicial separation ......................................113, 201
Jurisdiction
assignment of contact and care ............. 315–316
customary divorce...........................................232
divorce action ......................................... 194–195
Page
Jurisdiction – continued
international child abduction ...........342n, 343n
protection order ............................................ 278
Legal Aid Board
appointment of lawyer for child ........... 292–293
Legal representation
child in divorce proceedings................. 176–177
child in need of care and protection............ 338
child’s constitutional right .................... 291–293
domestic violence proceedings ..................... 279
Lesbian
contact with child .................................. 185–186
Life partnership
agency ............................................................. 260
compensation for occupational injury ......... 261
constitutional issues ............................... 267–268
contract regulating ................................ 259–260
determining whether in existence ....... 266–267,
312–313
domestic violence .......................................... 261
donations tax.................................................. 261
duty of support as determinative .......... 266–267
estate duty ...................................................... 261
estoppel .......................................................... 260
father’s responsibilities and rights ........ 312–313
immigration permits ...................................... 264
insolvency ....................................................... 261
insurance ........................................ 261, 264–265
intestate succession ........................................ 266
joint purchase, venture, lease or other
contract .............................................. 256–257
legislative and judicial recognition
heterosexual partnership .................. 261–263
same-sex partnership ........................ 263–266
maintenance .................................................. 261
maintenance of survivor ........................ 262–263
medical/employment benefits.............. 261, 263
need for regulation................................ 255–256
overview .............................................. 4, 255–256
parental rights and responsibilities ...... 265–266
polygamy ...................................................... 255n
protection by ordinary legal rules......... 256–260
rental housing ................................................ 261
terminology .................................................... 256
universal partnership ............................. 257–259
unjustified enrichment .................................. 260
wills ................................................................. 260
Litis contestatio
date for calculating accrual share ............. 97–98
date for calculating estate for redistribution
order ............................................................... 151
Lobolo ................................................... 218, 219, 232
Lump-sum maintenance award .................. 51, 118,
162–163, 200
Magistrates’ court
as Maintenance Court ................................... 50n
magistrates as marriage officers ...................... 30

Page
Maintenance
child see Child maintenance
life partners .....................................................261
spouse see Spousal maintenance
Maintenance Court
definition ......................................................... 50n
maintenance order see Maintenance order
mediation ........................................................196
Maintenance officer
definition ......................................................... 50n
investigation by ........................................... 49–50
Maintenance order (Divorce Act 70 of 1979)
adult children, colleagues and friends ..........159
clean-break principle ..................... 146–147, 162
death of maintenance debtor ........ 167, 168–169
discretion of court .................................. 157–158
divorce as prerequisite ...................................157
dum casta clause ......................................164, 166
factors to be considered ......................... 158–160
“just” maintenance order ...............................158
lump-sum maintenance ......................... 162–163
misconduct .....................................................160
need for maintenance ....................................158
redistribution order and ........................ 146–147
rehabilitative maintenance/no
maintenance............................ 159n, 160–162
remarriage of maintenance debtor ...............165
remarriage of maintenance
recipient ............................................. 167–168
rescission, suspension or variation
burden of proof .........................................165
effect on other aspects of award ...............164
emigration expenses ..................................166
fraudulent non-disclosure .........................165
inflation ......................................................166
living with another .....................................166
remarriage ..................................................165
“sufficient reason” .............................. 165–166
waiver of right .................................... 166–167
spouse living with another .....................158, 166
standard of living ............................................159
termination
order of court ..................................... 168–169
terms of settlement agreement ......... 167–168
token/nominal maintenance ................ 163–164
Maintenance order (Maintenance Act 99 of 1998)
appeals ..............................................................52
application of Act .............................................49
complaint and enquiry ............................... 49–50
default order ............................................... 51–52
dum casta clause ................................................51
electronic communications service provider,
information from .........................................50
enforcement
attachment of emoluments ................... 52–53
civil sanctions ......................................... 52–56
contempt of court ........................................57
criminal sanctions .................................. 56–57
future child maintenance payments ..... 54–56
imprisonment...............................................56
Index 411
Page
Maintenance order (Maintenance Act 99 of 1998)
– continued
enforcement – continued
particulars of defaulter to credit
bureaux ....................................... 52, 56–57
reciprocal enforcement ............................ 52n
retirement annuity fund ............................. 56
warrant of execution ............................. 52–53
writ of execution in High Court ........... 53–54
evidence and information provisions ............. 50
interim order ................................................... 50
life partners .................................................... 261
lump-sum payment .......................................... 51
medical expenses ............................................. 51
orders available .......................................... 51–52
periodical payments......................................... 51
photograph of maintenance debtor ............... 51
postponements................................................. 50
termination of order regarding child
maintenance .............................................. 352
tracing of persons affected .............................. 50
variation of existing order ............................... 51
Maintenance pendente lite
Muslim marriage ............................................ 245
spouse living with another .................... 199–200
Marital power
abolition ......................................... 60, 61, 70–71
Marriage
civil marriage see Civil marriage
customary marriage see Customary marriage
Hindu marriage ..................................... 249–251
Muslim marriage .................................... 241–247
putative marriage ........................... 25–26, 38–40
religious marriage see Religious marriage
void marriage ............................................. 33–34
voidable marriage ...................................... 34–38
Marriage certificate .............................................. 32
Marriage in community of property
administration of joint estate
abolition of husband’s marital
power ................................................. 70–71
acts in ordinary course of profession, trade
or business ......................................... 74–75
acts not requiring consent .................... 74–75
acts requiring both spouses’
consent .............................................. 71–74
alienation of immovable property .............. 72
bank’s position .......................................... 76n
contract to alienate or burden immovable
property ................................................... 72
credit agreement ......................................... 72
curatorship, effect of ................................. 71n
divorce, effect of ........................................ 71n
donation to third party ............................... 74
equal administration principle ................... 71
purchase of immovable property ............... 73
protection of spouses between
themselves ......................................... 77–81
protection of third parties .................... 75–77
412 South African Family Law
Page
Marriage in community of property – continued
administration of joint estate – continued
protection of spouses between
themselves .......................................... 77–81
protection of third parties ..................... 75–77
receipt of money owed to other
spouse ................................................. 73–74
suretyship......................................................72
withdrawal from bank account....................73
advantages and disadvantages .......................102
assets forming part of joint estate ....................63
capacity to litigate
consent requirement .............................73, 81
insolvency proceedings .......................... 81–82
legal proceedings ...................................73, 81
suing for joint debts .....................................82
customary marriage ........................ 222, 224–225
death of spouse ....................................... 115–116
donation from third party................................64
donations between spouses ..............................59
exclusion of community of property
antenuptial contract ....................................61
civil marriage between African persons
pre 2 December 1988 .............................62
lex domicilii of husband................... 61–62, 212
postnuptial contract.....................................61
forfeiture order ......................................136, 137
immovable property ...................................... 63n
inheritance ........................................................64
insolvency ........................................ 66–67, 81–82
insurance policy ............................................. 63n
liabilities
antenuptial debts ................................... 67–68
contractual debts.............................. 68, 69–70
criminal fines................................................69
debts incurred during subsistence of
marriage ............................................. 68–69
debts outstanding at dissolution of
joint estate .......................................... 69–70
delictual debts ...................... 67–68, 68–69, 70
maintenance obligations .......................67, 69
nature of liability ..........................................67
nature of universal community of
property .................................................. 62–63
protection of spouses between themselves
actio Pauliana utilis .......................................80
adjustment upon dissolution of joint
estate .................................................. 77–78
common law remedies ........................... 79–81
declaration of spouse as prodigal ......... 80–81
dispensing with consent ..............................78
immediate division of joint
estate .......................................... 78–79, 105
interdict .................................................. 79–80
right of recourse upon dissolution of
joint estate ................................................80
statutory remedies .................................. 77–79
suspension of spouse’s powers re joint
estate ........................................................78
protection of third parties ......................... 75–77
Page
Marriage in community of property – continued
rebuttable presumption .................................. 61
separate assets
assets exclude by will or deed of
donation...................................................... 64
assets excluded in antenuptial contract ..... 64
assets subject to fideicommissum or
usufruct ................................................... 64
attachment ............................................. 66–67
benefits under Friendly Societies Act
25 of 1956 ............................................... 65
costs in matrimonial action ........................ 66
damages for personal injury inflicted by
other spouse ............................................ 66
jocalia ............................................................ 65
non-patrimonial damages ........................... 65
proceeds of unlawful activities.................... 66
undivided and indivisible half-shares ....... 62–63
Marriage of convenience ............................... 24–25
Marriage officer
civil marriage.................................................... 30
civil union............................................... 207–209
Marriage out of community of property
accrual system .......................................... 91–101
advantages and disadvantages ....................... 102
antenuptial contract .................................. 83–90
complete separation of property .............. 90–91
customary marriage ............................... 225–226
death of spouse .............................................. 116
donations between spouses ....................... 58–59
retention of community of profit and loss ..... 91
Marriage out of community of property –
continued
without accrual system ............................... 90–91
Marriage register .................................................. 32
Marriage settlement ....................................... 87–88
Matrimonial home
divorce, effect of ............................................ 193
ejectment from ................................................ 58
exclusion from accrual .................................. 96n
right to live in ............................................. 57–58
Matrimonial property system
accrual system see Accrual system
advantages and disadvantages of main
systems................................................ 102–103
alteration ................................................ 105–111
antenuptial contract see Antenuptial contract
civil marriage subsequent to customary
marriage ............................................. 236–237
civil union....................................................... 212
customary marriage ............................... 221–226
marriage in community see Marriage in
community of property
marriage out of community see Marriage out of
community of property
Matrimonial Property Act 88 of 1984 ............. 61
minor’s marriage without consent............ 20–22
putative marriage ....................................... 39–40
variable consequence of marriage ............ 41, 61
Mediation............................................ 195–198, 233

Page
Medical aid scheme
life partners .....................................................261
same-sex life partner ......................................263
Medical expenses
maintenance order ...........................................51
Medical treatment
child, consent requirements .................. 332–334
Mentally ill person
capacity to marry ..............................................15
curatorship see Curatorship
divorce ..................................................... 122–124
Minor see also Child
capacity to act ...................................................16
civil marriage see Minor’s civil marriage
civil union, ineligibility for.............................206
curatorship see Curatorship
customary marriage see Minor’s customary
marriage
engagement ........................................................5
guardianship see Guardianship
High Court as upper guardian .............. 329–330
medical treatment, operation or HIV
test ....................................................... 332–334
protection order ..................................... 273–274
Minor’s civil marriage
antenuptial contract ....................... 21–22, 85–86
confers majority status......................................41
consent
High Court ..................................... 18–19, 330
legal guardian ..............................................17
Minister of Home Affairs ....................... 17–18
oral or written ..............................................16
parents .................................................... 16–17
presiding officer of Children’s Court .........18
requirement .................................................16
when not required .......................................19
lack of consent
effect on validity of marriage ......................20
patrimonial consequences if marriage
not set aside ....................................... 21–22
patrimonial consequences if marriage
set aside .............................................. 20–21
retrospective effect of statutory
provisions ........................................... 22–24
minimum age..................................... 16n, 17–18
proof of age/consent .......................................16
ratification by Minister .....................................17
voidable marriage .......................................20, 34
Minor’s customary marriage
consent requirements .................... 218, 219–220
patrimonial consequences where no consent
marriage not set aside ........................ 227–228
marriage set aside ......................................227
Misattributed paternity .......................................309
Misrepresentation
marriage, effect on ...........................................25
stuprum .................................................. 25, 35–36
Mistake
marriage, effect on ............................... 24–25, 35
Mixed marriage
declaration of validity .......................................29
Index 413
Page
Monogamy
civil marriage.............................................. 25–26
civil union....................................... 206–207, 211
Mother’s responsibilities and rights see Parental
responsibilities and rights
“Mothering” ................................................ 180–181
Muslim marriage
constitutional issues ....................................... 247
dependant’s action for loss of
support ............................................... 244–245
divorce .................................................... 245, 246
duty of support............................................... 245
enforcement of contractual obligations ....... 244
intestate succession ................................ 243–244
Islamic marriage law .................................... 242n
lack of legislation recognising............... 241–242
lease of matrimonial home ................... 245–246
maintenance during period of idda .............. 246
maintenance of surviving spouse .......... 243–244
maintenance pendente lite ............................... 245
polygyny .................................................. 241, 247
statutory provisions applicable ...................... 242
Negotiorum gestio ............................................ 45, 309
Nominal maintenance award .................... 163–164
Non-patrimonial damages
exclusion from accrual .................................... 95
exclusion from joint estate .............................. 65
Older person
definition .......................................................... 280
abuse of .................................................. 272, 280
curatorship see Curatorship
Orphan
adoption see Adoption
appointment of guardian ................................ 17
child in need or care and protection see Child
in need of care and protection
Pactum successorium ............................................... 87
Palimony ............................................................. 259
Parental responsibilities and rights
definition ........................................................ 177n
adoption ................................................. 317–325
agreement .............................................. 314–315
appointment in will ....................................... 316
artificial fertilisation ...................................... 311
assignment by court order .................... 315–316
biological mother .......................................... 311
care ......................................................... 302–303
Children’s Act 38 of 2005 ............................. 301
common law ................................................... 301
consent to medical treatment, operation or
HIV test .............................................. 332–334
contact ............................................................ 303
enforcement ................................................... 349
extension, suspension and
circumscription ................................. 331–332
guardianship .................................................. 301
international child abduction ............... 340–349
414 South African Family Law
Page
Parental responsibilities and rights – continued
judicial interference
High Court as upper guardian .......... 329–330
overview ......................................................329
statutory powers ................................. 330–349
life partnership ...............................................312
maintenance ........................................... 303–310
marriage or civil union ..................................312
married father ................................................312
more than one person having
consideration of co-holder’s wishes ..........327
guardianship ...................................... 325–327
parenting plan.................................... 327–328
surrender or transfer of responsibilities
and rights ...............................................327
surrogacy ................................................. 311–312
termination
attainment of majority ...............................349
child’s death .......................................349, 350
court order ................................. 331–332, 350
unmarried biological father
acknowledging paternity, contributing to
upbringing and maintenance ....... 313–314
life partnership................................... 312–313
parental responsibilities and rights
agreement ...................................... 314–315
ways of acquiring
acknowledging paternity, contributing to
upbringing and maintenance ....... 313–314
adoption ............................................. 317–325
appointment in will....................................316
assignment by court order................. 315–316
birth .................................................... 311–312
life partnership................................... 312–313
marriage or civil union ..............................312
overview .............................................. 310–311
parental responsibilities and rights
agreement ...................................... 314–315
Parenting plan ............................................ 327–328
Partial care order ................................................339
Pater est quem nuptiae demonstrant ..................35, 211
Paternity
acknowledging, and contributing to
upbringing and maintenance ........... 313–314
father’s responsibilities and rights see Parental
responsibilities and rights
life partnership ...............................................312
marriage or civil union ..................................312
mistake as to, recovery of child support ........309
pater est quem nuptiae demonstrant ..............35, 211
Patrimonial consequences of divorce
appointment of liquidator .............................130
customary marriage ................................ 229–232
forfeiture of benefits ...................... 130, 135–137
marital property system .......................... 129–130
overview ................................................... 129–130
pension interests..................................... 130–134
redistribution of assets ........................... 138–155
settlement agreement ............................ 127–129
Page
Pension interests on divorce
calculation .............................................. 131–132
customary marriage ....................................... 231
deemed part of assets ............................ 130–131
excluded marriages ....................................... 134
Government Employees Pension Fund ........ 132
payment or transfer of non-member spouse’s
portion ............................................... 133–134
pension interest and pension benefit
distinguished ..................................... 132–133
Post Office Retirement Fund ........................ 132
second divorce ............................................... 132
subsequent interest and growth .................... 132
Polyandry ............................................................ 13n
Polygamy ............................................................. 13n
Polygyny ........................................ 13, 217, 241, 247
Postnuptial contract excluding community
of property ....................................................... 61
Pregnancy with another man’s child ...... 25, 35–36
Pretium succedit in locum rei, res succedit in
locum pretii ......................................................... 64
Prevention programmes
children at risk ....................................... 280–281
Proceeds of unlawful activities
forfeiture to state ............................................. 66
Prodigal
capacity to marry .............................................. 14
constitutionality ......................... 48, 81, 100–101
declaration of spouse as ............ 80–81, 100–101
revocation of capacity to purchase household
necessaries ................................................... 48
Prohibited degrees of relationship
adoption ......................................................... 322
affinity ............................................................... 27
blood relations in direct line .......................... 27
civil union....................................................... 207
collateral blood relations .......................... 27–28
consanguinity ............................................. 26–27
customary marriage ....................................... 219
relations by affinity in collateral line ........ 28–29
relations by affinity in direct line .................... 28
void marriage ............................................. 26, 34
Prohibition of Mixed Marriages Act
55 of 1949 ......................................................... 29
Protection order
application for........................................ 272–273
attendance at proceedings ............................ 289
breach of ........................................ 273, 276–277
civil remedy .................................................... 273
conduct constituting domestic violence ....... 274
costs ................................................................ 279
domestic relationship .................................... 273
emergency monetary relief ........................... 276
final protection order .................................... 277
interim protection order ....................... 274–277
jurisdiction ..................................................... 278
legal representation ....................................... 279
minor complainant ................................ 273–274
non-disclosure of complainant’s address ..... 275
peace officer’s escort ..................................... 276

Page
Protection order – continued
persons entitled to apply ........................ 273–274
private hearing ...............................................278
prohibition of child contact ..........................276
publication restrictions .......................... 278–279
seizure of arm or dangerous weapon ............276
variation or setting aside ................................277
warrant of arrest ..................................... 276–277
Putative marriage
definition ............................................................38
children’s status ................................................39
consequences .............................................. 39–40
existing marriage or civil union .......... 25–26, 40
patrimonial consequences ......................... 39–40
requirements ....................................................38
Putative tutor .......................................................356
Race discrimination
redistribution order ............................... 142–143
Rape of spouse ................................................. 271n
Redistribution order
African civil marriage .....................................139
assets subject to ....................................... 148–151
career sacrifice ........................................ 144–145
claim and counterclaim .................................154
constitutionality ...................................... 141–143
court not entitled to make of own
accord .........................................................139
criterion for establishing extent of
redistribution ..................................... 151–153
customary marriage ............... 138, 142–143, 145,
230–231
date for determining value of estate .............151
discarded spouse of customary marriage ......145
discretion of court .................................. 154–155
domestic and childcare services ......... 144, 145n
eligible marriages ...........................................138
factors to be considered ......................... 145–147
foreign marriage ..................................... 139–141
form of .................................................... 153–154
maintenance order and ......................... 146–147
marriage subject to complete separation by
operation of law ................................. 139–141
misconduct .....................................................146
nature of contribution to other spouse’s
estate ................................................... 141–145
one-third rule ......................................... 151–153
onus of proof .................................. 143, 150–151
purpose of .......................................................138
requirements for ............................................143
retirement annuity .........................................148
trust assets ............................................... 148–150
Register of births
alteration of sex description and status ..........26
child’s name....................................................289
registration requirement ...............................289
same-sex parents .............................................265
Registration
antenuptial contract .........................................84
civil marriage ....................................................32
Index 415
Page
Registration – continued
civil union....................................................... 210
customary marriage ............................... 220–221
Rehabilitative maintenance ....................... 160–162
Relief pendente lite ....................................... 198–200
Religious education
parent exercising right of contact ................ 303
term of settlement agreement .............. 127–128
Religious marriage
civil marriage distinguished ............................ 13
divorce .................................................... 124–126
Hindu marriage ..................................... 249–251
Muslim marriage .................................... 241–247
overview .......................................................... 3–4
Remarriage
maintenance debtor ...................................... 165
maintenance recipient .......................... 167–168
Rental housing ................................................... 261
Retirement annuity fund
maintenance payments from .......................... 56
Retroactive alteration of matrimonial property
system ..................................................... 108–109
Reversion clause ..................................... 58n, 87–88
Same-sex couple
civil union see Civil union
ineligibility for civil marriage .......................... 26
life partnership ...................................... 263–266
Satisfaction for seduction .............................. 10–11
School nutrition programme ............................ 305
Seduction ........................................................ 10–11
Sentimental damages
termination of engagement .......................... 7–8
Settlement agreement................................ 127–129
Sex discrimination
action for seduction ......................................... 11
benefits excluded from joint estate ................ 65
Minister’s consent to minor’s marriage ... 17–18
Sex reassignment.................................................. 26
Sexual abuse
definition ................................................ 274n, 280
duty to report ................................................. 279
Shared care order .............................................. 339
Siblings
adoptive siblings, civil marriage ...................... 26
duty of support............................... 306, 309–310
split/divided care................................... 183–184
Social grants/welfare programmes ................... 305
Socio-economic rights ................................ 289–290
Sole care...................................................... 181, 330
Sole guardianship............................... 179–180, 330
Sponsalitia largitas............................................ 10, 65
Spousal maintenance
after divorce
customary marriage ................................... 232
duty of support .......................................... 157
maintenance order under
Divorce Act 70 of 1979 ................. 157–169
Muslim marriage ....................................... 246
settlement agreement ....................... 127–129
416 South African Family Law
Page
Spousal maintenance – continued
during marriage
duty of support ....................................... 44–46
household necessaries ........................... 46–49
maintenance order under Maintenance
Act 99 of 1998......................................... 49–57
pendente lite ...................................... 199–200, 245
surviving spouse see Surviving spouse,
maintenance of
Stalking ............................................................. 274n
Stepchild
adoption .................................................. 321–322
contact on divorce ..........................................175
maintenance/duty of support ....... 304, 307–308
Sterility ............................................................. 36–37
Stuprum ...................................................... 25, 35–36
Supervision order ...............................................339
Supposed tutor ....................................................356
Suretyship
marriage in community of
property ......................................67, 72, 75, 77
Surname
child’s surname ..............................................289
civil marriage ....................................................59
civil union ......................................... 59, 211–212
divorce, effect of .............................................193
Surrogacy ..................................................... 311–312
Surviving spouse, maintenance of
claim for maintenance ........................... 116–117
customary marriage ........................................234
determining reasonable maintenance ..........117
disposal of claim ..................................... 117–118
executor’s powers ................................... 117–118
life partner .............................................. 262–263
Muslim marriage .................................... 243–244
no right of recourse .......................................118
order of preference ........................................118
own means and earnings ...............................117
Talaq ....................................................................245
Termination of pregnancy
minor’s consent ..............................................333
Testamentary guardian or custodian .........316, 355
Token maintenance award ......................... 163–164
Transsexual person ...............................................26
Trust assets
accrual system ......................................... 149–150
redistribution order ............................... 148–150
Tutor dative .........................................................356
Unconscious person
divorce ..................................................... 122–124
Undue influence
marriage, effect on .....................................25, 35
Unequal bargaining power ..................... 86n, 141n
Universal community of property see Marriage in
community of property
Page
Universal partnership
alteration of matrimonial property
system ................................................. 110–111
effect on antenuptial agreement ............. 88–89,
110–111
life partnership ...................................... 257–259
putative marriage ....................................... 39–40
Unjustified enrichment ................. 45, 46, 260, 309
Unmarried father
adoption of child ........................................... 318
consent to child’s adoption................... 318–319
responsibilities and rights see Parental
responsibilities and rights
Usufruct
exclusion of property from joint estate .......... 64
Variable consequences of marriage
marriage in community of property
see Marriage in community of property
marriage out of community of property
see Marriage out of community of
property
overview ...................................................... 41, 61
Virginity testing .................................................. 299
Void marriage
definition ............................................................ 33
consequences ................................................... 34
declaratory order ............................................. 34
delictual action for satisfaction ....................... 34
non-compliance with formalities .................... 33
non-compliance with material
requirements ......................................... 33–34
ratification ........................................................ 34
Voidable marriage
definition ............................................................ 34
children’s status ......................................... 37–38
consequences ............................................. 37–38
duress................................................................ 35
impotence ........................................................ 36
minority ...................................................... 20, 34
mistake.............................................................. 34
sterility ........................................................ 36–37
stuprum ........................................................ 35–36
undue influence............................................... 35
Warrant of execution
maintenance debtor .................................. 52–53
Wedding ceremony see Civil marriage
Will
appointment of curator ................................. 358
appointment of guardian ...................... 316, 355
divorce, effect of .................................... 193–194
joint will amending antenuptial contract ....... 89
life partners .................................................... 260
Writ of execution
maintenance debtor .................................. 53–54