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Item 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.Item 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.²ºItem 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.Item 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.Item 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.Item Open Access An overview of the policies and legislation implemented in higher education in South Africa from 1994 to 2009(University of the Free State, 2015-10-14) Van Niekerk, Leani; Horn, MardaNo abstract availableItem 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).Item Open Access Die rol van registrasie by die oordrag van eiendomsreg in grond(University of the Free State, 1976) Jooste, J. F.; Van Schalkwyk, J. H.Abstract not available