Private Law

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Open Access
The acquisition of and subsequent judicial interference with parental responsibilities and rights of unmarried parents in terms of the 𝘊𝘩𝘪𝘭𝘥𝘳𝘦𝘯’𝘴 𝘈𝘤𝘵 38 OF 2005: lessons from case law, selected analogous divorce law and english law
(University of the Free State, 2023) Somi, Aphiwe; Smith, B. S.
Heaton and Kruger¹ provide the following convenient starting point for this study when they state that: “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. The emphasis on the rights of children is [also] evident in [South African] law.” 𝘊𝘢𝘭𝘪𝘵𝘻 𝘷 𝘊𝘢𝘭𝘪𝘵𝘻² affirms that in South Africa, the common-law position was that a married father was the dominant parent from a legal point of view because, although he shared custody with the mother, his rights were superior, especially as only he exercised guardianship over his child(ren) as a core component of what was then known as “parental authority”.³ Mothers, however, steadily gained increased legal recognition as parents, especially after promulgating the 𝘔𝘢𝘵𝘳𝘪𝘮𝘰𝘯𝘪𝘢𝘭 𝘈𝘧𝘧𝘢𝘪𝘳𝘴 𝘈𝘤𝘵 37 of 1953 and the 𝘎𝘶𝘢𝘳𝘥𝘪𝘢𝘯𝘴𝘩𝘪𝘱 Act 192 of 1993.⁴ Crucially, at least as from 1948, the concept of “the best interests of the child” became the golden rule in matters relating to children⁵ following the judgment of the Appellate Division (the highest court in South Africa at the time), in 𝘍𝘭𝘦𝘵𝘤𝘩𝘦𝘳 𝘷 𝘍𝘭𝘦𝘵𝘤𝘩𝘦𝘳.⁶ Building on this, our common law has always recognised the High Court as the upper guardian of all minors within its jurisdiction,⁷ and thus permits the court to interfere with “parental responsibilities and rights” (that has replaced the concept of “parental authority”), if the best interests of a child require doing so.⁸ This power is reinforced by certain statutes, as will be discussed below. The dawning of democracy in South Africa greatly facilitated the shift to a “child-centred approach”,⁹ as indicated by the extract from Heaton and Kruger quoted above. Section 28 of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 𝘰𝘧 𝘵𝘩𝘦 𝘙𝘦𝘱𝘶𝘣𝘭𝘪𝘤 𝘰𝘧 𝘚𝘰𝘶𝘵𝘩 𝘈𝘧𝘳𝘪𝘤𝘢 1996 (after this “the Constitution”) specifically deals with the fundamental constitutional rights of children. As Sachs J stated in S v M (𝘊𝘦𝘯𝘵𝘳𝘦 𝘧𝘰𝘳 𝘊𝘩𝘪𝘭𝘥 𝘓𝘢𝘸 𝘢𝘴 𝘈𝘮𝘪𝘤𝘶𝘴 𝘊𝘶𝘳𝘪𝘢𝘦),¹º “[s]ection 28(1) provides for a list of enforceable substantive rights that go well beyond anything catered for by the common law and statute in the pre-democratic era.” However, this list is not exhaustive.¹¹ Furthermore, as Boezaart states, a “plethora of laws” have been passed over the last two decades that govern various aspects of the lives of children. This was an attempt to improve domestic law in such a way that it is aligned with the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 and the international legal framework and to recognise the rights of children that may be enforced against parents, but also against the State.¹² One of the most important of these is the 𝘊𝘩𝘪𝘭𝘥𝘳𝘦𝘯’𝘴 𝘈𝘤𝘵¹³ which was enacted (inter alia) to give effect to the constitutional rights of children¹⁴ and will feature throughout this study, particularly where the provisions or fundamental principles of this Act have been relied on by our courts to recognise, limit, terminate or broaden parental responsibilities and rights. The 𝘊𝘩𝘪𝘭𝘥𝘳𝘦𝘯’𝘴 𝘈𝘤𝘵 effectively codifies the South African law of parent and child.¹⁵ As such, this study focuses on the acquisition of parental responsibilities and rights by unmarried parents and the role of the judiciary in interfering with the same in terms of sections 28, 29 and 34(5) of the 𝘊𝘩𝘪𝘭𝘥𝘳𝘦𝘯’𝘴 𝘈𝘤𝘵 and against the backdrop of the constitutional rights accorded to both children and their parents. While judicial interference will primarily be analysed in the specific context of unmarried parents, the fact that there is still relatively little case law dealing with such parents requires the study to draw on case law involving divorcing (or divorced) parents in which these provisions have featured. Having thus established the key legal principles regarding the application of these provisions, the study will identify certain lessons that can be learned when future courts are required to deal with the possible awarding, delineation, restriction or termination of unmarried parents' parental responsibilities and rights. In this regard, leading South African case law involving the possibility of awarding shared or joint care during or after divorce proceedings, as well as the potential restriction of separated parents’ rights of contact based on their sexual orientation, will be considered. Furthermore, because this issue has featured in English law (while there is only one such case in South Africa), the study will seek to determine whether South African courts can benefit from case law in that jurisdiction involving the outright termination of the parental responsibilities and rights of unmarried parents.
Open Access
The authorization of trustees in the South African law of trusts
(University of the Free State, 2006-11) Smith, Bradley Shaun; Van der Westhuizen, W. M.; Van Schalkwyk, J. H.
English: An analysis of the historical development of the trust in South Africa indicates that the trust has formed a part of South African jurisprudence for almost two centuries and, as such, has become a vibrant, dynamic and highly versatile institution in both commercial and legal practice. Initial recognition of the trust was occasioned chiefly by piecemeal (and fragmented) pre-Union legislation and case law. After 1910 the existence of the trust was confirmed by the Appellate Division – at that time the highest court in South Africa – and uniform legislation become applicable throughout the four provinces of the newly-established Union. The 1913 Administration of Estates Act was the first post-Union Act to apply to the law of trusts. This Act however only applied to the testamentary trust, but other legislation (such as the Trust Moneys Protection Act of 1934) eventually followed which applied to both testamentary and inter vivos trusts. The promulgation of the Trust Property Control Act 57 of 1988 is, however, widely regarded as being the most important contribution by the Legislature to the South African law of trusts. Section 6(1) of the 1988 Act introduced the requirement of written authorization of all trustees before they could act in that capacity. However, despite the seemingly clear and unambiguous wording adopted by the Legislature, the Courts have not interpreted and applied the section in a uniform fashion, leading to great uncertainty especially as far as the effect of non-compliance with section 6(1) is concerned. This dissertation attempts, by way of the legal historical method of research, to analyse the reported cases dealing with section 6(1), to compare the development of the requirement of written authorization with analogous requirements posed by previous legislation, and, as a consequence, to determine the true purpose of and rationale behind the insertion of the section. In order to combat the current uncertain legal position, three possible solutions are suggested, namely common law mechanisms, legislative intervention, and the correct interpretation of section 6(1).
Open Access
Die beskerming van kredietwaardigheid in die Suid-Afrikaanse reg
(University of the Free State, 1986-01) Klopper, Hendrik Balsazer; Claasen, J. Y.
Afrikaans: Die probleem wat in hierdie studie hanteer word, is of kredietwaardigheid werklik met die persoonlikheidsregtelike lama van 'n persoon gelykgeskakel kan word en of dit daarmee ooreenstem soos wat tans die siening van die geldende reg is. Leiding moet noodwendig by die kredietgewingspraktyk in die feitelike werklikheid gesoek word omdat dit die taak van die regswetenskap is om verskynsels in die feitelike werklikheid tot regulerende regsreëls te herlei. Die werklikheidsbeskouing van kredietwaardigheid toon merkbare afwyking van die regswerklikheid. Kredietwaardigheid in die feitelike werklikheid word omskryf as die vertroue wat die kredietontvanger (skuldenaar) by die kredietgewer (skuldeiser) verwek in die wil en vermoë om sy finansiële verpligtinge te kan nakom. Die beskouing van die reg van kredietwaardigheid moet dan aan die hand hiervan geskied. Sekere regstelsels verleen direkte erkenning aan kredietwaardigheid en is in pas met die werklikheidsbeskouing van kredietwaardigheid. (Die Duitse, Oostenrykse en tot 'n mate, die Nederlandse reg). Ander regstelsels plooi weer die beginsels van die lasterdelik om beskerming te bewerkstellig terwyl sommiges statutêre beskerming bied (Engeland, Amerika en Kanada). Hierdie wetgewing het ook 'n voorkomende uitwerking. Die Romeinse en Romeins-Hollandse reg erken nie kredietwaardigheid as 'n spesifieke belang nie en ook is daar besliste twyfel of hierdie regstelsels kredietwaardigheid as 'n faset van dié fama geken het. Tog word daar tekste in hierdie regstelsels aangetref wat verwys na die vertrouenselement wat in kredietwaardigheid te vinde is. Die Suid-Afrikaanse reg benader kredietwaardigheid as synde 'n faset van die persoonlikheidsregtelike lama of as sinoniem daarvan en wend die lasteraksie aan om beskerming daarvan te bewerkstellig. Omdat kredietwaardigheid in die werklikheid nie die lama van'rtpersoon is nie, word van die erkende beginsels van die lasteraksie afgewyk om beskerming te bewerkstellig. So word weinig aandag aan die onregmatigheids- en skuldelement gegee en in sommige gevalle word onregmatigheid en skuld (opset) selfs verontagsaam ten einde kredietwaardigheid te beskerm. Kredietwaardigheid verskil in wesensopsigte van fama en hierdie andersheid word beklemtoon deur die feit dat 'n regspersoon wat oor geen persoonlikheidsregtelike fama kan beskik nie, tog kredietwaardig kan wees. Kredietwaardigheid kan nie met die persoonlikheidsregtelike lama gelykgeskakel word nie. So 'n gelykskakeling beteken dat die verlies aan lama ook verlies aan kredietwaardigheid meebring wat nie noodwendig die geval is nie. Hierdie gelykskakeling misken ook een van die grondelemente van kredietwaardigheid, naamlik die vermoë om te kan betaal. Die aantasting van kredietwaardigheid gee in die meeste gevalle aanleiding tot vermoënskade wat 'n aanduiding is van die belang wat betrokke is, naamlik 'n vermoënsbelang. lndien 'n regswetenskaplike nis vir kredietwaardigheid gesoek word, resoneer dit as subjektiewe reg onder die immateriële goedereregte synde 'n geesteskepping van die mens op ekonomiese gebied. Daarby voldoen kredietwaardigheid aan al die vereistes vir 'n subjektiewe reg. Omdat kredietwaardigheid 'n vermoënsreg, te wete 'n immateriële goedereg is, is die beginsels van die actio legis Aquiliae daarop van toepassing wat beteken dat nalatigheid voldoende is om aanspreeklikheid te vestig. Skade weens kredietwaardigheidsaantasting is ook met 'n redelike mate van juistheid berekenbaar. Dit beteken egter nie dat die aantasting van kredietwaardigheid nie tot 'n aksie vir genoegdoening aanleiding kan gee wanneer die benadeelde kan aantoon dat die kredietbenadelende bewering ook sy fama of dignitas aangetas het nie. In so 'n geval moet die sekondêre betekenis van die bewering egter blyk omdat die klassieke inbreukmakingshandeling tegelyk regmatig en onregmatig kan wees. Uit die gelyktydige regmatigheid en onregmatigheid van die inbreukrnakingshandeling ontstaan 'n dilemma omdat die benadeelde nie weet waarom krediet hom geweier word nie. Hierdie verskynsel veroorsaak dat die gemeneregtelike aksies, alhoewel voldoende, nie prakties beskerming kan bied nie. Om hierdie gebrek te verwyder beteken dat wetgewing ter verpligting van die openbaarmaking van inligting met die behoud van die gemeneregtelike aksies en wat terselfdertyd die geldigheid en verspreiding van sulke inligting beheer, noodsaaklik is. Nie alleen sal dit inbreukmakings voorkom en beskerming verhoog nie, maar sal dit ook die geleentheid bied om inbreukmakings op privaatheid weens die versameling en verspreiding van kredietinligting te beheer.
Open Access
Calvyn die juris: kroniek
(Faculty of Law, University of the Free State, 2001) Wessels, H. A.; De Bruin, J. H.
Abstract not available
Open Access
Change to the age of majority: general impact and some consequences for the interpretation of wills
(University of the Free State, 2009) Faber, James Thomas; Janse van Vuren, Louis Theunis
On 1 July 2008, the age at which a person attains majority was lowered from 21 years to 18 years. Section 17 of the 𝘊𝘩𝘪𝘭𝘥𝘳𝘦𝘯’𝘴 𝘈𝘤𝘵 stipulates that: “A child, whether male or female, becomes a major upon reaching the age of 18 years.” This change is consistent with the Constitution,¹ which defines a child as a person under the age of 18 years.² The department of social development motivated this change as follows: 𝘉𝘦𝘵𝘸𝘦𝘦𝘯 18 𝘢𝘯𝘥 21 𝘺𝘰𝘶’𝘳𝘦 𝘯𝘦𝘪𝘵𝘩𝘦𝘳 𝘢 𝘤𝘩𝘪𝘭𝘥 𝘯𝘰𝘳 𝘢𝘯 𝘢𝘥𝘶𝘭𝘵. 𝘛𝘩𝘦 𝘊𝘩𝘪𝘭𝘥𝘳𝘦𝘯’𝘴 𝘈𝘤𝘵 𝘰𝘧 2005 𝘤𝘭𝘢𝘳𝘪𝘧𝘪𝘦𝘴 𝘵𝘩𝘢𝘵 𝘨𝘳𝘦𝘺 𝘢𝘳𝘦𝘢 𝘢𝘯𝘥 𝘣𝘳𝘪𝘯𝘨𝘴 [𝘪𝘵] 𝘪𝘯 𝘭𝘪𝘯𝘦 𝘸𝘪𝘵𝘩 𝘴𝘦𝘤𝘵𝘪𝘰𝘯 28(3) 𝘰𝘧 𝘵𝘩𝘦 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯. 𝘕𝘰𝘸 𝘢𝘯𝘺 𝘱𝘦𝘳𝘴𝘰𝘯 𝘶𝘯𝘥𝘦𝘳 18, 𝘶𝘯𝘭𝘦𝘴𝘴 𝘮𝘢𝘳𝘳𝘪𝘦𝘥 𝘰𝘳 𝘦𝘮𝘢𝘯𝘤𝘪𝘱𝘢𝘵𝘦𝘥 𝘣𝘺 𝘰𝘳𝘥𝘦𝘳 𝘰𝘧 𝘤𝘰𝘶𝘳𝘵, 𝘪𝘴 𝘢 𝘤𝘩𝘪𝘭𝘥 𝘢𝘯𝘥 𝘢𝘯𝘺 𝘱𝘦𝘳𝘴𝘰𝘯 𝘰𝘷𝘦𝘳 18 𝘪𝘴 𝘢𝘯 𝘢𝘥𝘶𝘭𝘵.³ The obvious consequence of this change is that 18-year-olds will now be able to enter into contracts, get married, vote and/or even emigrate without their parents’ permission. However, this change is not without shortcomings. Young adolescents between 18 and 21 years of age are thereby deprived of the protection afforded to them by law,‏⁴ while there are still limitations based on age excluding them from certain juristic acts.⁵ This change also created discrepancies in the South African legal system regarding age as a factor influencing a person’s status. In terms of a “special trust”, an 18-year-old is afforded protection because of his age, but in terms of a “bewind trust”, that same 18-year-old has the capacity to terminate the “protection” created for him, on the basis of his newly acquired majority status.⁶ Such contradictions affect legislation and cause legal uncertainty. Some of the consequences relevant to the law of succession and the administration of estates will be discussed in this article.
Open Access
A critical analysis of the viability of wrongful life claims under South African law: a stretch too far or a simple step forward
(University of the Free State, 2023) Mulder, Lizandré; Kamwendo, T.
Is it better to not be born at all than to be born with a severe disability? Is there any life that is not worthwhile?¹ suspect that many readers would initially be hesitant to disagree. The well-known slogan “every life is worth living” sums up this tendency or the revulsion to the extremely unsettling notion that some lives are worse than nothing or are not worth living.² Alternatively, in circumstances where the quality of life is so poor that it is understandable to feel contrite about ever being born or to hate the day of a child’s birth, it appears to be the harsh reality that it was unlucky for such a child to be born to live such a life and that the child’s life is not worth living³ The issue of wrongful life claims has become increasingly prevalent in South Africa’s legal landscape, raising complex ethical and legal questions surrounding the right to life and the compensation for harm caused by medical negligence.⁴ Medical professionals may be held accountable under South African law if they fail to fulfill their legal obligation to a healthcare consumer and harm results.⁵ When a child is born with an abnormality or handicap, and the parents assert that they would have ended the pregnancy, in respect of the 𝘊𝘩𝘰𝘪𝘤𝘦 𝘰𝘯 𝘛𝘦𝘳𝘮𝘪𝘯𝘢𝘵𝘪𝘰𝘯 𝘰𝘧 𝘗𝘳𝘦𝘨𝘯𝘢𝘯𝘤𝘺 𝘈𝘤𝘵,⁶ if they had been adequately informed of the defect or condition, the claim of wrongful life arises.⁷ For many years, wrongful life claims have been a contentious subject in South Africa.⁸ The legal context and case law pertaining to these claims constantly change, and the courts have been asked to address complex moral and ethical dilemmas.⁹ In South Africa, the right to reproductive autonomy is constitutionally protected. This means that, in terms of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 𝘰𝘧 𝘵𝘩𝘦 𝘙𝘦𝘱𝘶𝘣𝘭𝘪𝘤 𝘰𝘧 𝘚𝘰𝘶𝘵𝘩 𝘈𝘧𝘳𝘪𝘤𝘢 1996, hereinafter referred to as “the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯",¹º individuals have the right to make informed decisions about their own bodies and to have access to information that allows them to make those decisions.¹¹ Section 12(2) of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯¹² states that: “Everyone has the right to bodily and psychological integrity, which includes the right— (a) to make decisions concerning reproduction; (b) to security in and control over their body; and (c) not to be subjected to medical or scientific experiments without their informed consent.¹³ However, the law is less clear when it comes to the rights of parents to make decisions on their unborn child’s behalf. In wrongful life claims, the courts must balance the right of parents to make reproductive choices¹⁴ with the rights of a child who has been born with a disability or congenital disability while, most importantly, taking the best interest of the child into consideration.¹⁵ While society and the government control many aspects of people’s daily lives, they do not actively attempt to control human reproduction.¹⁶ The courts within South Africa have been reluctant to recognise wrongful life claims, with the majority of cases being dismissed by reason of the child’s right to life¹⁷ trumps the parents’ right to reproductive choices.¹⁸ However, as will be seen throughout this dissertation, there have been a few cases in other jurisdictions where the courts have allowed wrongful life claims to proceed, particularly in cases where the parents were deprived of essential information that would have allowed them to make an informed decision about the pregnancy. The issue of wrongful life claims remains a contentious issue in South African law along with international jurisdictions¹⁹ and is likely to continue to be the subject of debate and litigation in the years to come.²º
Open Access
A critical investigation of state custodianship and its implications for the South African property regime
(University of the Free State, 2022) September-van Huffel, Anthea-Lee; Horn, J. G.
The South African public is increasingly being exposed to political debates on state custodianship of all rural or agricultural land, particularly within the context of land reform initiatives. However, what first appeared like a surreptitious shift towards state custodianship of land on the part of some political parties is now boldly stated in the objects of the Constitution Eighteenth Amendment Bill, 2021,¹ thereby confirming a potential sociopolitical trend towards state custodianship of land within the land reform context.² If applied to land, state custodianship would entail strict regulatory control over the natural resource, with unique features and legal implications,² which may pose challenges to the existing property regime and security of land tenure. Therefore, this thesis examines the construct of state custodianship and its application to South Africa's natural resources,⁴ its legal implications, and its application to the existing property regime, particularly to transformative land reform.
Open Access
A critical study of the recurring problem of repudiation in the context of professional rugby in South Africa with particular emphasis on transformative constitutionalism
(Faculty of Law, University of the Free State, 2010-06) Mould, K.
English: Since rugby became a professional sport in the aftermath of the Rugby World Cup of 1995, the repudiation of sports contracts has become a general and recurring problem in the South African legal context. The legal problem of repudiation of sports contracts today is more prevalent than ever before, regardless of certain decisions wherein courts were willing to order coaches and players to specific performance of their contracts. This article attempts to find reasons for the courts' seeming unwillingness to grant orders of specific performance of sports (especially rugby) contracts, and suggests certain possible solutions to the recurring problem of repudiation in this context.
Open Access
The default matrimonial property system that applies to civil marriages concluded between black persons in South Africa: a consideration of the Sithole judgment, its consequences and its overall constitutional soundness
(University of the Free State, 2023) Ncityana, Sinalo; Smith, Bradley S.
This study concerns the consequences arising from the default matrimonial property regime that applies to “Black persons” who entered into a civil marriage in South Africa before the 2ⁿᵈ of December 1988, and recent radical changes in this regard as brought about by the Constitutional Court’s judgment in 𝘚𝘪𝘵𝘩𝘰𝘭𝘦 𝘢𝘯𝘥 𝘈𝘯𝘰𝘵𝘩𝘦𝘳 𝘷 𝘚𝘪𝘵𝘩𝘰𝘭𝘦 𝘢𝘯𝘥 𝘈𝘯𝘰𝘵𝘩𝘦𝘳¹ (𝘩𝘦𝘳𝘦𝘢𝘧𝘵𝘦𝘳 “𝘚𝘪𝘵𝘩𝘰𝘭𝘦”), that involved confirmation proceedings² in respect of the judgment of the court a quo (reported as AS v GS).³ As a point of departure, it is trite that the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 𝘰𝘧 𝘵𝘩𝘦 𝘙𝘦𝘱𝘶𝘣𝘭𝘪𝘤 𝘰𝘧 𝘚𝘰𝘶𝘵𝘩 𝘈𝘧𝘳𝘪𝘤𝘢, 1996 (𝘩𝘦𝘳𝘦𝘢𝘧𝘵𝘦𝘳 “𝘵𝘩𝘦 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯”) provides that everyone is equal before the law and has the right to equal treatment and protection of the law, and not to be unfairly discriminated against.⁴ In relation to the impact of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 on private law, Nkosi quotes Professor Visser’s opinion – expressed as far back as in 1995 – as follows: “Private law should brace itself for a type of ‘total onslaught’ on many of its rules and principles. This invasion will mainly be undertaken by judges who are well armed with (a) a vague constitution and (b) endless methods of interpreting it in order to achieve the desired results”.⁵ However, despite the advent of our constitutional democracy almost 30 years ago, Black persons in (civil) marriages at times still suffer from the racial classifications perpetuated by means of pre-democracy legislation. This study will take a closer look at the 𝘚𝘪𝘵𝘩𝘰𝘭𝘦 judgment, as well as its forerunner in the court a 𝘲𝘶𝘰, and the (unintended) consequences of the Constitutional Court’s judgment (in particular) to the extent that it altered this state of affairs. As such, the main research question is to assess the impact of this case regarding the fundamental change that it brought about to the default matrimonial property regime that governs civil marriages entered into between Black persons before 2ⁿᵈ of December 1988, and to determine whether its overall outcome is constitutionally sound. The study also aims to identify certain valuable lessons that can be learned from the 𝘚𝘪𝘵𝘩𝘰𝘭𝘦 judgment because of its far-reaching nature.
Open Access
The development of South African matrimonial law with specific reference to the need for and application of a domestic partnership rubric
(University of the Free State, 2009-11) Smith, Bradley Shaun; Brand, F. D. J.; Robinson, J. A.
English: In strictly adhering to the concept of marriage inherited from the Western legal tradition, pre-1994 South African family law paid scant regard to marriages other than monogamous heterosexual civil marriages, while the common law provided no express legal recognition for unmarried life or domestic partnerships. The advent of the democratic constitutional era in 1994 however spawned a flurry of legal development that broadened the notion of marriage by recognising customary marriages as well as certain consequences of marriages concluded according to the tenets of a recognised faith such as Islam. Commencing with the watershed National Coalition for Gay and Lesbian Equality cases,1 the legal position in which same-sex life partners found themselves was also dramatically improved by a number of ad hoc judicial pronouncements which extended certain consequences of marriage to such partners on the premise that they were at the time precluded from marrying one another. The flipside of this premise—namely that heterosexual life partners have always been permitted to marry one another and thus cannot request an extension of matrimonial (property) law where they have exercised a choice not to marry (the so-called “choice argument”)—was, however, to constitute the major justification for the judiciary’s refusal to extend similar recognition to heterosexual life partners. The application of this line of reasoning has implied that, within little more than a decade into the democratic constitutional dispensation, same-sex life partners ostensibly enjoy better legal protection and recognition of their relationships than their heterosexual counterparts. This state of affairs implies that the current legal position regarding unmarried life partners is inconsistent and fraught with anomalous legal consequences. Over and above the judicial developments, post-1994 legislation has also provided increasing recognition for unmarried life partners. However, as was the case with the judicial developments, the legislative developments were also merely piecemeal in nature. The upshot of this state of affairs is that interpersonal relationships in South Africa are governed by “a patchwork of laws that did not [and still do not] express a coherent set of family law rules.”2 While the validation of same-sex marriages by way of the promulgation of the Civil Union Act 17 of 2006 was a salutary development from a human rights perspective, this development has created difficulties of its own. To begin with, the validation of samesex marriage implies, strictu sensu, that the “choice argument” applies equally to samesex couples who elect not to marry one another. This entails that such couples could potentially be deprived of the consortium omnis vitae that the Courts have in principle found to exist between them and that they may no longer be able to rely on the piecemeal judicial extensions granted by the Courts prior to 30 November 2006 (the day on which same-sex marriage became permissible). The legal position in this regard however remains unclear. In addition, the validation of same-sex marriage has been accomplished by way of legislation that not only requires same-sex couples to marry one another in terms of separate legislation but that also further overcomplicates the legal landscape by providing for “civil unions” that can take the form of either marriages or civil partnerships. As such, no legislation has as yet been enacted that deals with the position of life or domestic partners per se. In January 2008 a draft Domestic Partnerships Bill, 2008 saw the light of day. Using this Bill as a prototype, this study attempts—by applying a domestic partnership rubric that requires the modification of the Bill and its calibration with attendant legislation—to iron out the inconsistencies and anomalies alluded to above by providing effective domestic partnership legislation. In order to achieve this, an in-depth analysis of case law, legislation and common law is conducted with a view to establishing certain fundamental principles that ought not only to feature in the domestic partnerships legislation itself, but which are also required in order to facilitate the Bill’s alignment with applicable legislation. In the light of the modified Bill, the study concludes with an evaluation of the case for retaining the Civil Union Act 17 of 2006. In the final analysis, the conclusion is reached that the enactment of the Domestic Partnerships Bill as developed in accordance with the rubric, coupled with the repeal of the Civil Union Act 17 of 2006, will provide a more consistent, coherent and less complex legal framework within which interpersonal relationships in South Africa can be regulated.
Open Access
The development of South African matrimonial law with specific reference to the need for and application of a domestic partnership rubric
(University of the Free State, 2009-11) Smith, Bradley Shaun; Brand, F. D. J.; Robinson, J. A.
English: In strictly adhering to the concept of marriage inherited from the Western legal tradition, pre-1994 South African family law paid scant regard to marriages other than monogamous heterosexual civil marriages, while the common law provided no express legal recognition for unmarried life or domestic partnerships. The advent of the democratic constitutional era in 1994 however spawned a flurry of legal development that broadened the notion of marriage by recognising customary marriages as well as certain consequences of marriages concluded according to the tenets of a recognised faith such as Islam. Commencing with the watershed National Coalition for Gay and Lesbian Equality cases,' the legal position in which same-sex life partners found themselves was also dramatically improved by a number of ad hoc judicial pronouncements which extended certain consequences of marriage to such partners on the premise that they were at the time precluded from marrying one another. The flipside of this premise-namely that heterosexual life partners have always been permitted to marry one another and thus cannot request an extension of matrimonial (property) law where they have exercised a choice not to marry (the so-called "choice argument")-was, however, to constitute the major justification for the judiciary's refusal to extend similar recognition to heterosexual life partners. The application of this line of reasoning has implied that, within little more than a decade into the democratic constitutional dispensation, same-sex life partners ostensibly enjoy better legal protection and recognition of their relationships than their heterosexual counterparts. This state of affairs implies that the current legal position regarding unmarried life partners is inconsistent and fraught with anomalous legal consequences. Over and above the judicial developments, post-1994 legislation has also provided increasing recognition for unmarried life partners. However, as was the case with the judicial developments, the legislative developments were also merely piecemeal in nature. The upshot of this state of affairs is that interpersonal relationships in South Africa are governed by "a patchwork of laws that did not [and still do not] express a coherent set of family law rules." While the validation of same-sex marriages by way of the promulgation of the Civil Union Act 17 of 2006 was a salutary development from a human rights perspective, this development has created difficulties of its own. To begin with, the validation of samesex marriage implies, strictu sensu, that the "choice argument" applies equally to samesex couples who elect not to marry one another. This entails that such couples could potentially be deprived of the consortium omnis vitae that the Courts have in principle found to exist between them and that they may no longer be able to rely on the piecemeal judicial extensions granted by the Courts prior to 30 November 2006 (the day on which same-sex marriage became permissible). The legal position in this regard however remains unclear. In addition, the validation of same-sex marriage has been accomplished by way of legislation that not only requires same-sex couples to marry one another in terms of separate legislation but that also further overcomplicates the legal landscape by providing for "civil unions" that can take the form of either marriages or civil partnerships. As such, no legislation has as yet been enacted that deals with the position of life or domestic partners per se. In January 2008 a draft Domestic Partnerships Bill, 2008 saw the light of day. Using this Bill as a prototype, this study attempts-by applying a domestic partnership rubric that requires the modification of the Bill and its calibration with attendant legislation-to iron out the inconsistencies and anomalies alluded to above by providing effective domestic partnership legislation. In order to achieve this, an in-depth analysis of case law, legislation and common law is conducted with a view to establishing certain fundamental principles that ought not only to feature in the domestic partnerships legislation itself, but which are also required in order to facilitate the Bill's alignment with applicable legislation. In the light of the modified Bill, the study concludes with an evaluation of the case for retaining the Civil Union Act 17 of 2006. In the final analysis, the conclusion is reached that the enactment of the Domestic Partnerships Bill as developed in accordance with the rubric, coupled with the repeal of the Civil Union Act 17 of 2006, will provide a more consistent, coherent and less complex legal framework within which interpersonal relationships in South Africa can be regulated.
Open Access
Die behoefte aan ’n wyer artikel 2(3) van die Wet op Testamente 7 van 1953 (soos gewysig): ’n Kritiese beskouing
(University of the Free State, 2004) Faber, J. T.; Rabie, P. J.
Die Hoogste Hof van Appél se uitspraak in 𝘉𝘦𝘬𝘬𝘦𝘳 𝘷 𝘕𝘢𝘶𝘥𝘦 𝘦𝘯 𝘈𝘯𝘥𝘦𝘳𝘦 2003(5) SA 173 (HHA) het die posisie aangaande die toepassing van artikel 2(3)van die 𝘞𝘦𝘵 𝘰𝘱 𝘛𝘦𝘴𝘵𝘢𝘮𝘦𝘯𝘵𝘦 7 van 1953 (soos gewysig)¹ duidelik uiteengesit enalle onsekerheid uit die weg geruim. Voor hierdie uitspraak het die interpretasie van artikel 2(3) totregsonsekerheid gelei.Die howe het twee benaderings ‘ontwikkel’, naamlikdie ‘eng’ en ‘liberale’ (‘soepel’) benaderings.² In die 𝘉𝘦𝘬𝘬𝘦𝘳-𝘴𝘢𝘢𝘬 het appélregterOlivier beslis dat slegs die kondonasie van testamente wat persoonlik deurdie oorledene³ opgestel, geskryf, getik, tot stand gebring of verly is, toegelaatsal word. Alhoewel daar saamgestem word met regter Oliver se interpretasievan artikel 2(3) sal daar in hierdie skrywe gepoog word om die deur vir ’n‘wyer’ of ‘liberale’ artikel 2(3) oop te maak.
Open Access
Disposing of property upon death: contemplating the act of gestation performed with animus testandi versus a contractual disposition in terms of a valid 𝘱𝘢𝘤𝘵𝘶𝘮 𝘴𝘶𝘤𝘤𝘦𝘴𝘰𝘳𝘪𝘶𝘮
(University of the Free State, 2022) Faber, J. T.
While the fate of assets upon death is generally decided under the law of succession, it does not have to be. In addition to a valid will (testate succession), succession could also be governed by contract, in terms of a valid 𝘱𝘢𝘤𝘵𝘶𝘮 𝘴𝘶𝘤𝘤𝘦𝘴𝘴𝘰𝘳𝘪𝘶𝘮 (currently either a 𝘥𝘰𝘯𝘢𝘵𝘪𝘰 𝘮𝘰𝘳𝘵𝘪𝘴 𝘤𝘢𝘶𝘴𝘢 or an antenuptial contract containing succession clauses). (Intestate succession, although a third option, is put aside for present purposes.) Both testate and contractual succession require an expression of intention in the form of a legally recognised act. The dispositive act in these two instances shares certain features. In both, the act involves a disposition of property intended to apply upon death and is obligationary. The vesting of rights in both can also only occur upon death, while assets are transferred by the appointed executor who administers the estate. Yet the essence of the dispositive act renders these two forms of succession fundamentally different. Contractual succession, with an agreement as the dispositive act, operates under the law of contract. Since the disposition is contractual, it needs to comply with the requirements for a valid contract, with 𝘢𝘯𝘪𝘮𝘶𝘴 𝘤𝘰𝘯𝘵𝘳𝘢𝘩𝘦𝘯𝘥𝘪 as the defining form of intention. Testate succession is governed by the law of succession, with 𝘢𝘯𝘪𝘮𝘶𝘴 𝘵𝘦𝘴𝘵𝘢𝘯𝘥𝘪 being the required intention. 𝘈𝘯𝘪𝘮𝘶𝘴 𝘵𝘦𝘴𝘵𝘢𝘯𝘥𝘪 turns the dispositive act into an act of testation, which, in turn, renders the document in which it is embodied a will. Although this distinction seems straightforward enough, South African law is yet to reflect it. This shortcoming results in legal uncertainty, which creates new challenges in light of the court’s power of condonation. This article focuses on the different dispositive acts to shed light on the intention associated with each and, specifically, to clearly distinguish between 𝘢𝘯𝘪𝘮𝘶𝘴 𝘤𝘰𝘯𝘵𝘳𝘢𝘩𝘦𝘯𝘥𝘪 and 𝘢𝘯𝘪𝘮𝘶𝘴 𝘥𝘰𝘯𝘢𝘯𝘥𝘪 in a contractual disposition, and 𝘢𝘯𝘪𝘮𝘶𝘴 𝘵𝘦𝘴𝘵𝘢𝘯𝘥𝘪. Ultimately, a clear distinction between the intentions will enable a better understanding of the applicable act of disposition. Admittedly, the intention will probably remain central in the event of uncertainty, and the surrounding circumstances will still be decisive in determining it. However, it is suggested that an added focus on the act – assessing it in terms of its essence and associated form of intention – will make for a considerably easier investigation than a sole focus on intention.
Open Access
The doctrine of the undisclosed principal in South African law
(University of the Free State, 2018) Senokoane, Reamohetswe Portia; Mould, K. L.
The doctrine of the undisclosed principal has been described as odd, anomalous, unsound and inconsistent with established legal principals, not only in South Africa, but also in England.¹ Regardless of the constant conflict associated with the implementation of this English law doctrine, South African courts have confirmed its existence, particularly in light of its commercial convenience.² The purpose of this dissertation is to consider the relevance of the doctrine of the undisclosed principal, in the South African context, with specific reference to the doctrine’s constitutional perpetuality. By ‘undisclosed principal’ is meant a principal whose existence is not known to the third party and not a principal who, known to be existent by the third party, are nevertheless not identified by name.³ By ‘agent’ is meant a person who in his own name contracts ostensibly for his own account, but behind whom there stands an undisclosed principal.⁴ The doctrine of the undisclosed principal may be illustrated by the following scenario: An agent acting on behalf of a potential party to a contract (for the sake of this explanation referred to as “A”), enters into an agreement with another (“B”). At the time of entering into the contract, A’s identity is unknown to B. Rather than entering into the agreement on A’s behalf, A’s agent concludes the agreement with B in his (agent’s) own name. By operation of the doctrine of the undisclosed principal, A is allowed to take action against B in the case of non-fulfilment of the latter’s obligations agreed upon in the contract concluded between A’s agent and B. Similarly, B can also institute action against A once he or she comes to know of the existence of the latter, which will only occur in the instance when A decides to hold B liable based on the non-performance initially concluded between A’s agent and B. Delport submits that the undisclosed principal is in a position similar to a cessionary wherein the “agent” is seen as the cedent when he or she comes to the fore and seeks to enforce the contractual rights against the third party. A fictional cession is presumed, since the principal’s right to intervene is not based on any actual cession. When the principal steps forward to enforce the contract and the third party decides to sue the principal, the intermediary (“agent” or cedent) is released from all the rights and duties flowing from the contract and a cession of rights and an assignment of obligations are deemed to have taken place. Another theory states the agent in fact acts in the capacity of a trustee in such an instance. He uses the example of the sale of land as the subject of the conclusion of the contract between the agent and the third party. The example holds: When A conveys the land to B, no one will say that the title passes to C. But B, who gets the title, does not hold it for himself, but as trustee for C. To say that A may charge C upon B's contract of purchase, is to maintain what no one would maintain, that a cestui que trust may be sued, and at law, upon contracts between the trustee and third persons.
Open Access
Hospital disclaimers: Afrox Health Care v Strydom: chronicle
(Faculty of Law, University of the Free State, 2003) Jansen, R-M.; Smith, B. S.
Abstract not available
Open Access
Die invloed van die stipulatio alteri op die inter vivos trust in die Suid-Afrikaanse reg: voorgestelde oplossings vir beter regulering
(University of the Free State, 2017-06) Van Zyl, Rika; Smith, Bradley Shaun
English: The deed of trust in terms of which an inter vivos trust is established is currently dealt with as a species of the contract for the benefit of a third party (stipulatio alteri) in South African law. Therefore, the stipulatio alteri serves as (an artificial) framework to explain the functioning of the inter vivos trust with reference to Roman-Dutch law. However, in the course of its historical development in South Africa, certain unsound consequences have been attached to the stipulatio alteri and, more particularly, the acceptance requirement, which have a significant impact on the understanding of the rights acquired by the third party to the agreement. A sound (accurate) interpretation of the stipulatio alteri is required to provide legal certainty regarding the consequences of acceptance, and the rights obtained by the third when (s)he accepts. Nevertheless, the unsound interpretation of the stipulatio alteri is currently utilised to assist in explaining the inter vivos trust in terms of certain contractual aspects of the trust deed, the beneficiary’s acceptance and concomitant rights, as well as the amendment or revocation of the deed of trust. This causes multiple problems for the functioning of the inter vivos trust, which have been exacerbated by the courts’ poor understanding of the functioning of the stipulatio alteri and its application to the inter vivos trust. An extremely uncertain application of the inter vivos trust has arisen as a result, particularly in respect of the beneficiary’s rights. In addition, sight should not be lost of the trust law features of the inter vivos trust. This requires a careful balance between, on the one hand, the fiduciary duty in terms of the law of trusts and, on the other, the contractual aspects. Apart from suggesting a potential sound interpretation of the stipulatio alteri, this research also proposes further solutions to the uncertainties and problems currently experienced in regulating the inter vivos trust.
Open Access
Die invloed van die stipulatio alteri op die inter vivos trust in die Suid-Afrikaanse reg: voorgestelde oplossings vir beter regulering
(University of the Free State, 2017-06) Van Zyl, Rika; Smith, B. S.
English: The deed of trust in terms of which an inter vivos trust is established is currently dealt with as a species of the contract for the benefit of a third party (stipulatio alteri) in South African law. Therefore, the stipulatio alteri serves as (an artificial) framework to explain the functioning of the inter vivos trust with reference to Roman-Dutch law. However, in the course of its historical development in South Africa, certain unsound consequences have been attached to the stipulatio alteri and, more particularly, the acceptance requirement, which have a significant impact on the understanding of the rights acquired by the third party to the agreement. A sound (accurate) interpretation of the stipulatio alteri is required to provide legal certainty regarding the consequences of acceptance, and the rights obtained by the third when (s)he accepts. Nevertheless, the unsound interpretation of the stipulatio alteri is currently utilised to assist in explaining the inter vivos trust in terms of certain contractual aspects of the trust deed, the beneficiary’s acceptance and concomitant rights, as well as the amendment or revocation of the deed of trust. This causes multiple problems for the functioning of the inter vivos trust, which have been exacerbated by the courts’ poor understanding of the functioning of the stipulatio alteri and its application to the inter vivos trust. An extremely uncertain application of the inter vivos trust has arisen as a result, particularly in respect of the beneficiary’s rights. In addition, sight should not be lost of the trust law features of the inter vivos trust. This requires a careful balance between, on the one hand, the fiduciary duty in terms of the law of trusts and, on the other, the contractual aspects. Apart from suggesting a potential sound interpretation of the stipulatio alteri, this research also proposes further solutions to the uncertainties and problems currently experienced in regulating the inter vivos trust.
Open Access
Is 'n prokureur geregtig op die koste van geregtelike stappe teen 'n voormalige kliënt?: kronieke
(Faculty of Law, University of the Free State, 2001) Bobbert, M. C. J.
Abstract not available
Open Access
The legal consequences of internet contracts
(University of the Free State, 2003-11) Johnson, J. M. C.; Grobler, N.; Jansen, R. M.
Prior to the enactment of the Electronic Communications and Transactions Act in July 2002, the position in South African law regarding contracts concluded via electronic means was very uncertain. In the absence of applicable legislative guidance, South Africa relied almost exclusively on the flexibility of its Roman Dutch Common Law principles to accommodate the new challenges created by technological advances. While the Common Law succeeded commendably in being able to address the majority of issues raised by the new technology, it became increasingly clear that some of the questions fell beyond the scope of principles designed long before the idea of a computer was ever contemplated. In July 2002, the Electronic Communications and Transactions Act came into operation. The thesis begins by examining the Common Law requirements for the conclusion of a legally valid and binding contract and investigates the provisions of the Act in order to shed light on the requirements of “writing” and “signature” in relation to online agreements. Questions regarding the contractual capacity of parties in relation to electronically concluded contracts are investigated with specific reference to the position in the event of a minor or other person with limited capacity entering into an electronic agreement. The requirement of consensus enjoys detailed attention. The different types of online agreements, including click-wrap and browse-wrap agreements are examined to ascertain the circumstances under which effective acceptance of an offer will have occurred. The position regarding the acceptance of unread terms is also considered as well as the validity of agreeing to terms referred to by means of a hyperlink, but not displayed. The various theories relating to when and where a contract is concluded are also examined with a view to determining the correct theory applicable to electronic contracts. Once the requirements for a valid and binding electronic contract have been determined, the consequences thereof are discussed. The rights and duties afforded by and placed upon parties in 161 accordance with the Act are investigated, with particular reference to the rights of consumers in commercial transactions. The enforcement of rights flowing from agreements concluded via electronic means is examined and some of the potential pitfalls facing litigants, ranging from the viability of litigation to high legal costs, are discussed. In particular, the problem of conflicting legal systems in relation to international agreements is addressed and the methods by which the appropriate system can be identified, are investigated. The question of attribution is examined in addition to the various presumptions applicable in terms of international law as well as the Act, so as to determine upon whom the responsibility for electronically performed acts should be visited. The limitations of the Electronic Communications and Transactions Act are discussed and particular attention is paid to certain types of transactions and agreements that are prohibited from being concluded in terms of the Act and its Schedules. In conclusion, a brief overview of the influence of the Internet on other branches of the South African law is included as a reminder of the vast and wide-ranging influence that recent technological advances have had on our society.
Open Access
Multiple marriages, burial rights and the role of lobolo at the dissolution of the marriage
(Faculty of Law, University of the Free State, 2003) Jansen, R-M.
English: This paper highlights three aspects which have an impact on both customary and common law that came to the fore in the Thembisile case. An evaluation of the way in which the court dealt with the different aspects is made. Regarding multiple marriages, where a civil marriage is also involved, it is suggested that the courts should be hesitant to simply declare either the civil or the customary marriage a nullity and should consider the different options available first. Where a funeral is marred by feuds about burial rights, it is suggested that a flexible approach should be followed. Strict adherence to common law principles could lead to unreasonable and inequitable results, especially in traditional communities. Lastly, there seems to be conflict between the official customary law and the living law regarding the return of the lobolo at the dissolution of a customary marriage. Empirical research should be undertaken to determine whether lobolo is in fact still returned