FAMILY LAW
CASE INDEX
(as at March 2015)
ACKNOWLEDGMENT:
The vast majority of case references are drawn from
those published by LexisNexis and Jutastat and
attention is drawn to their comprehensive services on
www.lexisnexis.co.za and www.jutalaw.co.za
respectively and which are both readily available on
DJINI.
COMPILED BY GREG NEL
ADDITIONAL MAGISTRATE: TABANKULU
CONTACT: grnel@justice.gov.za (0846379166)
KEY TO USE :
a)
b)
c)
d)
topics are listed alphabetically,
case references are given as accurately as available,
cases are often mentioned under more than one topic,
cases are summarized very briefly and it thus essential that
users draw and read the entire case and this is in no way
intended to be a complete guide to available case-law,
e) this guide will be updated monthly, and all additions and
suggestions are welcomed.
1. ABANDONMENT
2. ABDUCTION
Central Authority for the RSA & another v B
[2012] JOL 28747 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2011 / 21074
07 / 12 / 2011
South Africa
High Court
South Gauteng, Johannesburg
PA Meyer J
Keywords:
Persons – Children – International child abduction – Application for return of child – Court’s discretion
Mini Summary:
In terms of the Convention on the Civil Aspects of International Child Abduction 1980 (the Hague
Convention) as presently incorporated into South African law by section 275 of the Children’s Act 38 of
2005, the second applicant sought the return of her 13-year old son to Australia. The boy was currently
residing with the respondent (his father) in Johannesburg.
Held that the respondent’s retention of the child in South Africa was wrongful within the meaning of
article 3 of the Hague Convention and the court had to order his return to Australia pursuant to the
provisions of article 12, unless the respondent or the child established the defence raised, which was
provided by article 13. The defence was that the boy objected to being returned to his mother in Australia.
The exercise of a discretion arises under article 13, which provides that notwithstanding the provisions of
article 12, which require in mandatory terms that the child wrongfully abducted or retained be returned,
the Court may also refuse to order the return of the child if it is found that the stated requirements have
been met.
The Court found the child in this case to be confident, articulate, with firm and cogent views on where he
wished to live. He appeared to have settled well in his school, and the respondent had an active
involvement and participation in his life. To move the child back to Australia now would be a disruption in
his life, physically and emotionally.
The application was accordingly dismissed.
3. ACCESS TO CHILD
AC v ADT
[2015] JOL 33077 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
11120 / 2002
10 / 06 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
Swartz AJ
Keywords:
Family law – Parent and child – Access to child
Mini Summary:
The battle between the parties over the applicant’s access to his child had a 12-year-long history.
Held that the applicant had relentlessly sought assistance from the Court to gain access to his minor
daughter and the respondent had frustrated the applicant’s every effort to gain such access to the child.
The respondent referred to the violent nature of the applicant in justification of her refusal to have the
applicant gain access to the child. However, the applicant was comprehensively assessed by a clinical
psychologist, whose professional opinion was that no reason existed to deprive him of access to his
daughter. On the other hand, the respondent had consistently refused the applicant’s requests to attend
consultations with psychologists.
As the best interests of the child is paramount, it is mandatory that due regard and due consideration be
given to any views and wishes expressed by the child. The child in this matter was now 16 years old. The
Court found that fear and anxiety expressed by the child has been created by the respondent. The Court
sits as upper guardian in the protection of the best interests of the minor child. It was in the best interests
of the child to at least attempt establishing meaningful contact with the applicant, without the rights of the
applicant being deliberately frustrated by the respondent. An order facilitating that objective was issued.
CRI (born B) v MRI
[2013] JOL 29946 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
EL 1691/11; ECD 2228/11
24 / 08 / 2012
South Africa
High Court
Eastern Cape Grahamstown
Smith J
Keywords:
Family law – Divorce – Access to children
Mini Summary:
The parties in this matter were embroiled in divorce proceedings.
In a rule 43 application brought by the applicant, the applicant was appointed as primary carer of the
children, and awarded her pendente lite custody of the children, subject to the condition that the
respondent be allowed contact with them. The parties were not able to agree on how the respondent’s
right to contact would be exercised, and he now sought an order defining that right.
Held that in terms of section 10 of the Children’s Act 38 of 2005, the Court had to give due consideration
to the views expressed by the minor children if they were of an age, maturity, and stage of development
to be able to meaningfully participate in the proceedings. Their views however, had to be considered in
the context of the fact that they had been in the applicant’s sole custody for more than two years, and
that during that period they had not had any contact with their father.
The Court found that the respondent should be allowed to see his children and granted supervised contact,
as defined in the order.
KLVC v SDI and another
[2015] JOL 32761 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
20334 / 2014
12 / 12 / 2014
South Africa
Supreme Court of Appeal
BH Mbha, MML Maya, LE Leach, LV Theron JJA, Schoeman AJA
Keywords:
Family law – Parent and child – Unmarried fathers – Rights of – Acquisition of full parental responsibilities
and rights of an unmarried father – Requirements set out in section 21(1)(b)(i) to (iii) of the Children’s
Act 38 of 2005 – Where father had met all the requirements prescribed in section 21(1)(b)(i) to (iii) of the
Children’s Act 38 of 2005 and therefore had acquired full parental rights and responsibilities in respect of
the child, it was necessary for the mother to have obtained the father’s consent prior to applying for a
passport for the child’s removal from South Africa RRS v DAL (22994/2010) [2010] ZAWCHC 618 (10
December 2010) – Referred to Fraser v Children’s Court, Pretoria North 1997 (2) BCLR 153 (1997 (2) SA
261) (CC) – Referred to
Mini Summary:
A minor child was at the centre of the present dispute. The appellant and first respondent were parents of
the child, and although they were never married to each other, nor did they cohabit or live together in a
permanent life partnership, the first respondent had at all material times consented to being identified as
the child’s father. In November 2012, while the first respondent was on a brief visit overseas, the
appellant removed the child from Durban and relocated to England without either informing or seeking
permission from the first respondent to do so.
In terms of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 (the Hague
Convention), the first respondent applied to the High Court of Justice, Family Division of the United
Kingdom (the English court) for an order directing the appellant to return the child to his habitual place of
residence in Durban, South Africa. The basis of the application was that the appellant had removed the
child from South Africa to England in breach of the first respondent’s co-parental rights and responsibilities
by not seeking the first respondent’s approval before doing so. The fundamental question for resolution
before the English court was whether the appellant’s removal of the child from South Africa without the
first respondent’s approval was wrongful. That entailed a consideration of whether the removal of the child
was wrongful because it was in breach of the rights of custody of the father under the law of South Africa
immediately before the removal of the child, and whether the relevant rights of custody were actually
being exercised at the time of the child’s removal.
Unable to decide the question, the English court made an order referring to a South African court for
determination, the question of whether in November 2012, it was lawful under South African law having
regard to the circumstances of this case, for the appellant to change the place of residence of the child
from a place in South Africa to a place in England and Wales without the prior permission or consent of
the first respondent or a South African court.
The court a quo ruled in the first respondent’s favour, finding that in November 2012, the father had met
all the requirements prescribed in section 21(1)(b)(i) to (iii) of the Children’s Act 38 of 2005 and therefore
had acquired full parental rights and responsibilities in respect of the child. Accordingly, it was necessary
for the appellant to have obtained the first respondent’s consent prior to applying for a passport for the
child’s removal from South Africa.
The appellant appealed against that finding.
Held that section 21(1)(b) provides for the acquisition of full parental responsibilities and rights of an
unmarried father if he consents to being identified as the child’s father; 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 towards expenses in connection with the maintenance of the child for a
reasonable period.
Determining whether or not an unmarried father has met the requirements in section 21(1)(b) is an
entirely factual enquiry. It is a type of matter which can only be disposed of on a consideration of all the
relevant factual circumstances of the case. It was unnecessary to rule on whether the requirements set
out in section 21(1)(b) ought to be determined conjunctively or whether they were simply categories of
facts which a court must consider before concluding whether an unmarried father has acquired full
parental responsibilities and rights in respect of a minor child or not.
Much of the debate before the Court related to whether the first respondent had contributed adequately or
at all, or had attempted in good faith to contribute over a reasonable period, towards the upbringing or
expenses in connection with the maintenance of the child. The Court considered the meaning that was
intended by the legislature in including phrases or words such as “contribute(s)” and “for a reasonable
period” in the section. What needs to be determined is the nature and extent of the contribution required
for the child’s upbringing and for expenses in respect of the child in order for an unmarried father to
acquire full parental responsibilities and rights. The Court was of the view that the legislature was
deliberately not prescriptive in defining that nature of the required contribution. Based on the evidence
adduced, the Court agreed with the court a quo that the first respondent had indeed met what was
required by section 21(1)(b)(ii). The first respondent demonstrated sufficiently that he had acquired full
parental responsibilities in respect of the child by November 2012. As co-guardian, his consent was
therefore required prior to the removal of the child from South Africa by the appellant.
4. ADOPTION
5. AGE GENERAL
Haywood v Haywood and another
[2014] JOL 31970 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
5995 / 14; 11887 / 12; 3801 / 12
25 / 06 / 2014
South Africa
High Court
Western Cape, Cape Town
Gamble J
Keywords:
Family law – Divorce settlement – Court order – Maintenance of minor child – Consequence of child
achieving majority age
Mini Summary:
The applicant and first respondent were engaged in divorce litigation. They entered into a settlement
agreement, which was presented to Court for an order in terms thereof to be taken by agreement. In
terms of the agreement the applicant undertook to maintain the parties’ minor son by the payment of
cash in the amount of R7 000 per month to the first respondent, by covering his reasonable medical
expenses and by paying his school fees. The applicant continued to pay the maintenance in respect of his
son up to the beginning of 2014. He then discovered that the first respondent decided to enrol the boy
into a college to able him to improve his Matric grades. The applicant was not happy at not having been
consulted, and obtained advice from his attorney. He was advised that since the boy was then 18, the rule
43 order no longer applied and that the applicant was no longer required to pay maintenance directly to
the first respondent.
Flowing from the applicant’s stance, the first respondent obtained a writ of execution for the attachment of
movables belonging to the applicant, for an amount representing one month’s maintenance, and the
college fees.
In an urgent application, the applicant sought a declaration that the order made pursuant to the
settlement agreement had lapsed due to the applicant’s son having attained majority.
Held that ordinarily, the position is that upon the attainment of majority of the child, the parent in whose
care the child is, no longer has the locus standi to claim payment of maintenance on behalf of the child.
The principles which have been applied in respect of agreements to pay maintenance incorporated into
orders of divorce can usefully be applied to agreements in relation to Rule 43 applications. The Court had
to determine the parties’ intention when they concluded the agreement embodied in the draft order. The
golden rule is to have regard to the language of the written instrument in question, and to give it its
grammatical and ordinary meaning. The Court was satisfied that the parties contemplated continued
payments by the applicant directly to the first respondent after their son’s majority.
6. AGE DISPUTE/DETERMINATION
7. ANTENUPTIAL CONTRACTS
SB v RB
[2015] JOL 32866 (ECLD, George)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
13622 / 2011; 36 / 2009
16 / 04 / 2014
South Africa
High Court
Eastern Circuit Local Division, George
JI Cloete J
Keywords:
Persons – Marriage – Termination of – Divorce – Marriage out of community of property, excluding accrual
– Proprietary consequences – Claim for maintenance – Alleged existence of partnership
Mini Summary:
The parties were married on 26 September 1998 out of community of property by antenuptial contract
with the express exclusion of the accrual system. They separated permanently during November 2008,
and it was common cause that the marriage had irretrievably broken down. The plaintiff sued for divorce,
and apart from seeking a decree of divorce, advanced several other claims. The first claim was that during
the marriage the parties agreed to form a joint estate, and that the plaintiff is thus entitled to 50%
thereof. Second, or alternatively, the plaintiff sought an order declaring that a partnership was formed
during the marriage for the purpose of a commercial enterprise, namely the buying and selling of
immovable properties, coupled with the usual consequential relief. The third claim, which the plaintiff
accepted could only be advanced as a further alternative to the first claim, was for payment of R135 000
which was a portion of the sale proceeds of a vehicle which the defendant was alleged to have donated to
her during the marriage. The fourth claim was for nominal maintenance from the defendant.
Held that having married during 1998, the proprietary consequences of the parties’ marriage were
governed by the Matrimonial Property Act 88 of 1984. Because the plaintiff married the defendant after
the commencement of the Act, out of community of property by antenuptial contract with the express
exclusion of the accrual system, and received wrong legal advice about how to change the parties’
matrimonial property system pursuant to an express agreement reached during the marriage, the current
legislative scheme prevented the present Court from coming to her assistance. The Court found that to fly
in the face of the equality principle enshrined in section 9 of the Bill of Rights, and to be a classic example
of how a party to a civil marriage can be unfairly discriminated against purely on the arbitrary basis of the
date of that marriage. Based on the law as it stood currently, the Court had to dismiss the first main
claim.
The alternative claim to 50% of the defendant’s estate was based on the defendant’s promise to the
plaintiff that she could have half his estate if she resumed her marriage relationship with him. The letter
produced by the plaintiff in that regard did not support her allegation, and in the absence of any proof, the
claim was dismissed.
The Court then turned to consider the claim for a declaration of the existence of a partnership. The
essential elements of a partnership are that each party contributes, or undertakes to contribute, money,
labour or skill; the business of the partnership is conducted for their joint benefit; and the purpose is to
make a profit. The Court held that the claim based on a tacit partnership agreement was neither
supported by the terms of the proven agreement nor by the objective facts.
Although the defendant denied donating the vehicle he purchased for the plaintiff to her, the Court found
that the evidence pointed to the contrary. The plaintiff was entitled to the proceeds claimed by her.
Finally, the Court found that the plaintiff had proved an entitlement to an order for nominal maintenance.
Nedbank Limited v Lotter
[2014] JOL 32416 (GP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
50216 / 13
16 / 09 / 2014
South Africa
High Court
Gauteng, Pretoria
Mabuse J
Keywords:
Corporate and Commercial Law – Consumer protection – Loan agreement – Application for payment –
Section 129, National Credit Act 35 of 2005 – Notice requirements – Persons – Marriage – Out of
community of property – Failure to register antenuptial contract – Consequences
Mini Summary:
As a registered bank, the applicant was a credit provider. In 2007, it entered into a loan agreement with
the respondent in terms of which the applicant, as the credit provider, lent the respondent R1 134 000
subject to certain conditions and upon the security of a mortgage bond. The respondent’s obligations were
to repay the loan together with finance charges in regular monthly instalments, and to hypothecate the
property as security for her obligations under the loan agreement. However, she failed to comply with her
contractual obligations, and fell into arrears with her repayments.
In the present application, the bank sought payment of the amount due, as well as an order declaring the
property specially executable for the said sum plus costs.
Held that the respondent, in resisting the application, first relied upon a restructuring agreement in terms
of which her repayments were rearranged. She therefore objected to the subsequent bringing of the
present application. However, the Court found that the respondent had failed to pay what was due in
terms of the restructured agreement, entitling the applicant to bring the application.
The respondent stated in her next defence that the proceedings were instituted in accordance with the
provisions of the National Credit Act 34 of 2005 and that the applicant had failed to comply with the
requirements of sections 127, 129, 130 and 131 of the Act. She claimed furthermore that she was
informed that the application was premature in that it was issued before the applicant had complied with
the provisions of section 129(1)(a)(b) of the Act. She alleged that she never received the notice referred
to in section 129 of the Act. The Court found that the section 129 notice was sent by registered mail to the
address chosen by the respondent, and that a tracking number was obtained. The post office had sent the
respondent a notification that she had to collect the item from the post office. In those circumstances,
section 129 was complied with.
The main defence was that although the respondent had believed that she was married out of community
of property, she had later discovered that her antenuptial contract was never registered, with the result
that her marriage was one in community of property with a joint estate. It was submitted that the
mortgage bond registered over the property and the loan agreement entered into by the respondent were
a nullity because her husband’s consent had never been obtained at the time nor did he ratify the
transactions.
In terms of section 86 of the Deeds Registries Act 47 of 1937, an ante-nuptial contract must be notarially
executed and registered in the Deeds Office within three months after the date of its execution or within
such extended period as the court may on application allow. An ante-nuptial contract which has not been
property prepared before a notary or which, having been so properly executed, but has not been
registered as required by the provisions of section 87, may be perfectly valid inter partes but not binding
on third parties. What that means is that the marriage may be out of community of property as far as the
spouses are concerned but in community of property as far as third parties are concerned. On the facts
placed before the Court, the respondent’s marriage was in community of property and of profit and loss,
and her failure to obtain her husband’s consent rendered the loan agreement a nullity.
8. BEST INTERSETS OF CHILD
EM v OM
[2011] JOL 26653 (ZH)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
HH 78 / 10
13 / 05 / 2010
Zimbabwe
High Court
Harare
Musakwa J
Keywords:
Family law – Child – Custody – Best interests of child – Factors to be considered in determining what is in
best interests of child
Mini Summary:
The primary consideration in a custody dispute is what is the best interests of the child. In determining
what is in the best interests of the child, the court must decide which of the parents is better able to
promote and ensure the child’s physical, moral, emotional and spiritual welfare. This can be assessed by
reference to the following criteria. These are not set out in order of importance, and also there is a
measure of unavoidable overlapping. Some of the criteria may differ only as to nuance. The criteria are
the following: (a) the love, affection and other emotional ties which exist between parent and child and
the parent's compatibility with the child; (b) the capabilities, character and temperament of the parent
and the impact thereof on the child's needs and desires; (c) the ability of the parent to communicate with
the child and the parent's insight into, understanding of and sensitivity to the child's feelings; (d) the
capacity and disposition of the parent to give the child the guidance which he requires; (e) the ability of
the parent to provide for the basic physical needs of the child, the so-called “creature comforts”, such as
food, clothing, housing and the other material needs – generally speaking, the provision of economic
security; (f) the ability of the parent to provide for the educational well-being and security of the child,
both religious and secular; (g) the ability of the parent to provide for the child's emotional, psychological,
cultural and environmental development; (h) the mental and physical health and moral fitness of the
parent; (i) the stability or otherwise of the child's existing environment, having regard to the desirability
of maintaining the status quo; (j) the desirability or otherwise of keeping siblings together; (k) the child's
preference, if the court is satisfied that in the particular circumstances the child's preference should be
taken into consideration; (l) the desirability or otherwise of applying the doctrine of same sex matching;
and (m) any other factor which is relevant to the particular case.
9. BREACH OF PROMISE TO MARRY
Cloete v Maritz
[2014] JOL 32110 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
6222 / 2010 & 16433 / 2012
13 / 06 / 2014
South Africa
High Court
Western Cape, Cape Town
RCA Henney J
Keywords:
Contract – Promise to marry – Breach of promise – Claim for damages – Contract – Universal partnership
– Requirements
Mini Summary:
In March 1998, the parties herein orally agreed to marry each other within a reasonable time after such
date. They consequently became engaged to each other in February 1999. The plaintiff alleged that the
defendant repudiated the said agreement by refusing to marry her, informing her in 2009, that he had
someone new in his life.
Based on breach of contract, the plaintiff claimed damages representing amounts of money that she had
donated to him in contemplation of the marriage, for the loss of financial benefits of the marriage, and for
the contumacious breach of promise to marry.
In August 2012, the plaintiff amended her particulars of claim, claiming the existence of a universal
partnership between the parties. She requested an order declaring her to have a 50% share of the value
of the assets in the universal partnership. In terms of the amended particulars of claim, she further
claimed the payment of an amount of R25 000 for damages for breach of promise.
In a counter-claim, the defendant stated that the plaintiff was unlawfully occupying property owned by the
defendant, as a result of which the defendant suffered damages in that he was unable to tender the
property for lease to third parties. He claimed damages totalling R420 000, being the amount of 21
months’ unlawful occupation. In his plea, the defendant denied that there was a legally enforceable
engagement, or that there was a universal partnership agreement entered into between the parties.
The defendant also raised a special plea to the claim that there was a universal partnership between the
parties. he contended that when the plaintiff introduced the alleged universal partnership as a new cause
of action, such claim had prescribed because a period of more than 3 years had lapsed since the claim
arose.
Held that the court found the version of the plaintiff regarding the functions and the role she played in the
businesses of the defendant not only credible but overwhelmingly consistent with probabilities.
The next question was whether there was a universal partnership that existed between the plaintiff and
the defendant. Firstly, each of the parties must have brought something into the partnership or must have
bound themselves to bring something into it, whether it be money, or labour, or skill. Secondly, the
partnership business had to be carried on for the joint benefit of both parties. Thirdly, the object of such
partnership had to be to make a profit. Finding all the elements to have been established, the court
concluded that the existence of a universal partnership in which the parties agreed to put in common all
their property present and future was established.
In respect of the special plea, the court held that even though the romantic relationship had ceased to
exist on the defendant’s version on or during March 2009, the universal partnership continued to exist at
least until June 2010. As such, when the claim relating to the universal partnership was made on 16
August 2012, the claim had not yet prescribed.
Apart from the 50% share of the universal partnership, the defendant was ordered to pay the plaintiff
R25 000 for the contumacious breach of promise.
The defendant’s counter-claim was held to be without merit and was dismissed.
10. CHILD’S DUTY TO SUPPORT PARENTS
11. COMMUNITY OF PROPERTY
SB v RB
[2015] JOL 32866 (ECLD, George)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
13622 / 2011; 36 / 2009
16 / 04 / 2014
South Africa
High Court
Eastern Circuit Local Division, George
JI Cloete J
Keywords:
Persons – Marriage – Termination of – Divorce – Marriage out of community of property, excluding accrual
– Proprietary consequences – Claim for maintenance – Alleged existence of partnership
Mini Summary:
The parties were married on 26 September 1998 out of community of property by antenuptial contract
with the express exclusion of the accrual system. They separated permanently during November 2008,
and it was common cause that the marriage had irretrievably broken down. The plaintiff sued for divorce,
and apart from seeking a decree of divorce, advanced several other claims. The first claim was that during
the marriage the parties agreed to form a joint estate, and that the plaintiff is thus entitled to 50%
thereof. Second, or alternatively, the plaintiff sought an order declaring that a partnership was formed
during the marriage for the purpose of a commercial enterprise, namely the buying and selling of
immovable properties, coupled with the usual consequential relief. The third claim, which the plaintiff
accepted could only be advanced as a further alternative to the first claim, was for payment of R135 000
which was a portion of the sale proceeds of a vehicle which the defendant was alleged to have donated to
her during the marriage. The fourth claim was for nominal maintenance from the defendant.
Held that having married during 1998, the proprietary consequences of the parties’ marriage were
governed by the Matrimonial Property Act 88 of 1984. Because the plaintiff married the defendant after
the commencement of the Act, out of community of property by antenuptial contract with the express
exclusion of the accrual system, and received wrong legal advice about how to change the parties’
matrimonial property system pursuant to an express agreement reached during the marriage, the current
legislative scheme prevented the present Court from coming to her assistance. The Court found that to fly
in the face of the equality principle enshrined in section 9 of the Bill of Rights, and to be a classic example
of how a party to a civil marriage can be unfairly discriminated against purely on the arbitrary basis of the
date of that marriage. Based on the law as it stood currently, the Court had to dismiss the first main
claim.
The alternative claim to 50% of the defendant’s estate was based on the defendant’s promise to the
plaintiff that she could have half his estate if she resumed her marriage relationship with him. The letter
produced by the plaintiff in that regard did not support her allegation, and in the absence of any proof, the
claim was dismissed.
The Court then turned to consider the claim for a declaration of the existence of a partnership. The
essential elements of a partnership are that each party contributes, or undertakes to contribute, money,
labour or skill; the business of the partnership is conducted for their joint benefit; and the purpose is to
make a profit. The Court held that the claim based on a tacit partnership agreement was neither
supported by the terms of the proven agreement nor by the objective facts.
Although the defendant denied donating the vehicle he purchased for the plaintiff to her, the Court found
that the evidence pointed to the contrary. The plaintiff was entitled to the proceeds claimed by her.
Finally, the Court found that the plaintiff had proved an entitlement to an order for nominal maintenance.
12. CONSENT
KLVC v SDI and another
[2015] JOL 32761 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
20334 / 2014
12 / 12 / 2014
South Africa
Supreme Court of Appeal
BH Mbha, MML Maya, LE Leach, LV Theron JJA, Schoeman AJA
Keywords:
Family law – Parent and child – Unmarried fathers – Rights of – Acquisition of full parental responsibilities
and rights of an unmarried father – Requirements set out in section 21(1)(b)(i) to (iii) of the Children’s
Act 38 of 2005 – Where father had met all the requirements prescribed in section 21(1)(b)(i) to (iii) of the
Children’s Act 38 of 2005 and therefore had acquired full parental rights and responsibilities in respect of
the child, it was necessary for the mother to have obtained the father’s consent prior to applying for a
passport for the child’s removal from South Africa RRS v DAL (22994/2010) [2010] ZAWCHC 618 (10
December 2010) – Referred to Fraser v Children’s Court, Pretoria North 1997 (2) BCLR 153 (1997 (2) SA
261) (CC) – Referred to
Mini Summary:
A minor child was at the centre of the present dispute. The appellant and first respondent were parents of
the child, and although they were never married to each other, nor did they cohabit or live together in a
permanent life partnership, the first respondent had at all material times consented to being identified as
the child’s father. In November 2012, while the first respondent was on a brief visit overseas, the
appellant removed the child from Durban and relocated to England without either informing or seeking
permission from the first respondent to do so.
In terms of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 (the Hague
Convention), the first respondent applied to the High Court of Justice, Family Division of the United
Kingdom (the English court) for an order directing the appellant to return the child to his habitual place of
residence in Durban, South Africa. The basis of the application was that the appellant had removed the
child from South Africa to England in breach of the first respondent’s co-parental rights and responsibilities
by not seeking the first respondent’s approval before doing so. The fundamental question for resolution
before the English court was whether the appellant’s removal of the child from South Africa without the
first respondent’s approval was wrongful. That entailed a consideration of whether the removal of the child
was wrongful because it was in breach of the rights of custody of the father under the law of South Africa
immediately before the removal of the child, and whether the relevant rights of custody were actually
being exercised at the time of the child’s removal.
Unable to decide the question, the English court made an order referring to a South African court for
determination, the question of whether in November 2012, it was lawful under South African law having
regard to the circumstances of this case, for the appellant to change the place of residence of the child
from a place in South Africa to a place in England and Wales without the prior permission or consent of
the first respondent or a South African court.
The court a quo ruled in the first respondent’s favour, finding that in November 2012, the father had met
all the requirements prescribed in section 21(1)(b)(i) to (iii) of the Children’s Act 38 of 2005 and therefore
had acquired full parental rights and responsibilities in respect of the child. Accordingly, it was necessary
for the appellant to have obtained the first respondent’s consent prior to applying for a passport for the
child’s removal from South Africa.
The appellant appealed against that finding.
Held that section 21(1)(b) provides for the acquisition of full parental responsibilities and rights of an
unmarried father if he consents to being identified as the child’s father; 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 towards expenses in connection with the maintenance of the child for a
reasonable period.
Determining whether or not an unmarried father has met the requirements in section 21(1)(b) is an
entirely factual enquiry. It is a type of matter which can only be disposed of on a consideration of all the
relevant factual circumstances of the case. It was unnecessary to rule on whether the requirements set
out in section 21(1)(b) ought to be determined conjunctively or whether they were simply categories of
facts which a court must consider before concluding whether an unmarried father has acquired full
parental responsibilities and rights in respect of a minor child or not.
Much of the debate before the Court related to whether the first respondent had contributed adequately or
at all, or had attempted in good faith to contribute over a reasonable period, towards the upbringing or
expenses in connection with the maintenance of the child. The Court considered the meaning that was
intended by the legislature in including phrases or words such as “contribute(s)” and “for a reasonable
period” in the section. What needs to be determined is the nature and extent of the contribution required
for the child’s upbringing and for expenses in respect of the child in order for an unmarried father to
acquire full parental responsibilities and rights. The Court was of the view that the legislature was
deliberately not prescriptive in defining that nature of the required contribution. Based on the evidence
adduced, the Court agreed with the court a quo that the first respondent had indeed met what was
required by section 21(1)(b)(ii). The first respondent demonstrated sufficiently that he had acquired full
parental responsibilities in respect of the child by November 2012. As co-guardian, his consent was
therefore required prior to the removal of the child from South Africa by the appellant.
13. CURATOR AD LITEM
14. CURATOR BONIS
Mbhele v Mbhele & others
[2010] JOL 25651 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 118 / 10
03 / 06 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
K Pillay, P Koen and K Swain JJ
Keywords:
Maintenance – Maintenance of major – Need for curator bonis
Mini Summary:
In 2003, the Maintenance Court granted an order by consent directing the first respondent to pay
maintenance for his minor child. The applicant was the child's guardian. In 2008, the applicant obtained a
rule nisi preventing the second respondent (a bank) from paying out any pension benefit to the first
respondent. In terms of the rule nisi the bank was called upon to show cause why it should not be ordered
to determine the net amount owing to the first respondent and to pay the said amount to the Master of
the High Court, to be held in the Guardian's Fund, for the future maintenance of the first respondent's son
who was disabled.
On the return date, the magistrate discharged the rule and granted an order in terms of which the first
respondent was interdicted from using the sum of R50 000 for his benefit. He was ordered to pay that
amount to the master, to be held in trust in the Guardian's Fund and payment thereof to be made to the
child in accordance with any order of the Maintenance Court or any competent court. As the child was a
major by the time the application was heard, the master refused to accept a cheque from the bank for
payment into the Guardian's Fund. The cheque was paid into the trust account at the Magistrates' Court,
but the Area Court Manager then advised that the Department of Justice had no accounting system that
allows for the receipt of lump sums of money, to be dispensed monthly to third parties.
The magistrate sought to refer the problem to the high court, by way of a special review, to resolve the
issue of how provision could be made for the retention of money in a fund, and the periodical payments
therefrom, to provide for the maintenance of a major.
Held that the solution to the impasse lay in the common law, rendering it unnecessary and inappropriate
to decide whether the Guardian's Fund was the appropriate, or permissible, receptacle for the receipt of
monies to provide for the needs of a major, who is in need of maintenance.
A major child who is incapable of supporting himself, is entitled to support from a parent who is able to do
so. If such a major is incapable of managing his affairs, a curator bonis can be appointed to administer
such affairs and provide the necessary maintenance from funds made available to the curator. The
applicant was advised to launch an application in the appropriate forum for the appointment of herself, or
a suitable person, as a curator bonis to the child if the evidence revealed that he was unable to administer
his own affairs.
15. CUSTODY DISPUTES
Klare & another v Klare (born Bodley)
[2010] JOL 25922 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1214 / 09
04 / 05 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
F Kroon J
Keywords:
Civil procedure – Divorce litigation – Variation of order – Costs
Mini Summary:
The first applicant and the respondent were formerly married to each other, but were divorced in 2008.
The divorce order incorporated the terms of a deed of settlement provided, inter alia, that the couple's
children would reside with the respondent, who would be their primary carer subject to the first applicant's
right of reasonable access to them.
Having since married the second applicant, the first applicant now sought variation of the order relating to
the care and control of the children, in essence decreeing that the first applicant be the primary carer of
the children and that they live with him, with the respondent having rights of access to them. The
applicants adduced evidence regarding the conduct of the respondent, and her alcohol abuse. The Family
Advocate issued a report supporting the relief sought in the present application.
The matter was postponed several times, and eventually the parties reached an agreement. The
agreement made provision for the first applicant to be the primary care giver of the children, for them to
reside with him, and for the respondent to have structured supervised contact with the children.
The parties were, however, unable to reach agreement on the issue of costs and that was the sole issue
argued before the court.
Held that the respondent opposed the application on a limited basis only. Her opposition arose where she
bona fide believed that she was acting in the best interests of her children. The court therefore deemed it
best to make no order as to costs.
EM v OM
[2011] JOL 26653 (ZH)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
HH 78 / 10
13 / 05 / 2010
Zimbabwe
High Court
Harare
Musakwa J
Keywords:
Family law – Child – Custody – Best interests of child – Factors to be considered in determining what is in
best interests of child
Mini Summary:
The primary consideration in a custody dispute is what is the best interests of the child. In determining
what is in the best interests of the child, the court must decide which of the parents is better able to
promote and ensure the child’s physical, moral, emotional and spiritual welfare. This can be assessed by
reference to the following criteria. These are not set out in order of importance, and also there is a
measure of unavoidable overlapping. Some of the criteria may differ only as to nuance. The criteria are
the following: (a) the love, affection and other emotional ties which exist between parent and child and
the parent's compatibility with the child; (b) the capabilities, character and temperament of the parent
and the impact thereof on the child's needs and desires; (c) the ability of the parent to communicate with
the child and the parent's insight into, understanding of and sensitivity to the child's feelings; (d) the
capacity and disposition of the parent to give the child the guidance which he requires; (e) the ability of
the parent to provide for the basic physical needs of the child, the so-called “creature comforts”, such as
food, clothing, housing and the other material needs – generally speaking, the provision of economic
security; (f) the ability of the parent to provide for the educational well-being and security of the child,
both religious and secular; (g) the ability of the parent to provide for the child's emotional, psychological,
cultural and environmental development; (h) the mental and physical health and moral fitness of the
parent; (i) the stability or otherwise of the child's existing environment, having regard to the desirability
of maintaining the status quo; (j) the desirability or otherwise of keeping siblings together; (k) the child's
preference, if the court is satisfied that in the particular circumstances the child's preference should be
taken into consideration; (l) the desirability or otherwise of applying the doctrine of same sex matching;
and (m) any other factor which is relevant to the particular case.
16. CUSTODY GRANDPARENTS
17. CUSTOMARY LAW
Moropane v Southon
[2014] JOL 32177 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
755 / 2012
29 / 05 / 2014
South Africa
Supreme Court of Appeal
KK Mthiyane DP, LO Bosielo, MML Maya, LV Theron JJA, Van Zyl AJA
Keywords:
Customary law – Customary marriage – Requirements for valid customary marriage – Section 3(1) of the
Recognition of Customary Marriages Act 120 of 1998 – Customary law – Requirements for valid customary
marriage – Requirement in section 3(1)(b) that the marriage must be negotiated and entered into or
celebrated in accordance with customary law – How to ascertain what constitutes customary law – Court
may take judicial notice thereof; where it cannot be readily ascertained, expert evidence may be adduced
to establish it; and finally, a court may consult text books and case law
Mini Summary:
In 2000, the respondent moved in with the appellant, and they lived together at the appellant’s house
from that point on. In early 2002, the appellant proposed marriage to the respondent, who accepted.
Although the parties were agreed on the intended marriage, they differed as to its nature. The respondent
maintained that their marriage was to be by customary law whilst the appellant contended that it was to
be by civil rites. According to the respondent, negotiations between her family and that of the respondent
culminated in R6 000 being paid to her family by the appellant’s family. What that amount was for was in
dispute. The respondent alleged that it was for her lobola, while the appellant alleged that the payment
was merely a symbolic gesture for opening negotiations for the respondent as his future wife.
The respondent and her three witnesses testified that a customary marriage was concluded and celebrated
in terms of the customary law on 17 April 2002 between the appellant and the respondent. Importantly,
they testified that the customary marriage was sealed officially by the transfer of the respondent from her
family and delivery to her in-laws. The appellant disputed that a valid customary union was negotiated
and concluded between him and the respondent. The court a quo found against the appellant, leading to
this appeal.
Held that the testimony of the appellant and his brother was unsatisfactory. They were both evasive and
unconvincing as witnesses. On the other hand, the record showed the respondent and her witnesses to
have been honest and candid, giving a clear and coherent account of events.
Ultimately the resolution of the dispute between the parties came down to whether the High Court erred in
finding, on a conspectus of the evidence, that a valid customary marriage was concluded between the
parties on 17 April 2002. The jurisdictional requirements for a valid customary marriage are set out in
section 3(1) of the Recognition of Customary Marriages Act 120 of 1998. What is required is that both
spouses must be over 18, must both consent to be married to each other under customary law; and the
marriage must be negotiated and entered into or celebrated in accordance with customary law. It was not
in dispute that both parties were above the age of 18 years. The only two issues which were seriously
contested were lack of consent by the appellant to marry by customary law and, whether the marriage
was negotiated and entered into in accordance with customary law.
The requirement in section 3(1)(b) that the marriage must be negotiated and entered into or celebrated in
accordance with customary law was clear and unambiguous. There was no attempt to define what was
meant by customary law, as the pluralistic nature of African societies means that African law and its
customs are not static but dynamic. The best approach to ascertaining the real meaning of the
requirement was to examine the current cultural practices and customary law of the particular ethnic
group. As pointed out by the Constitutional Court in the case of Bhe and others v Magistrate, Khayelitsha
and others; Shibi v Sithole and others; SA Human Rights Commission and another v President of the RSA
and another 2005 (1) BCLR 1 (CC), there are three ways to ascertain indigenous law. The court may take
judicial notice thereof; where it cannot be readily ascertained, expert evidence may be adduced to
establish it; and finally, a court may consult text books and case law. Two expert witnesses were called to
testify on Pedi customary marriages in an attempt to assist the Court to determine whether the marriage
between the parties was negotiated and entered into or celebrated in accordance with customary law of
the Bapedi people. They agreed that the handing over of the woman to her in-laws is the most crucial part
of a customary marriage.
It was clear from the evidence and photographs which were admitted as exhibits that a delegation from
the appellant’s family attended the respondent’s home, that there were negotiations between the two
families as a consequence of which an amount of R6 000 was paid by the appellant’s family to the
respondent’s family, and that there was a celebration indicative of a marriage. The versions of the
appellant and the respondent being incompatible, the Court had to weigh the probabilities to determine
which version was more probable than the other, and also had to consider the credibility and reliability of
the various witnesses. The finding by the trial judge of serious improbabilities in the appellant’s version
was confirmed as correct. The trial court also made credibility findings. Having had the advantage of
observing the various witnesses whilst they testified before her, she had an advantage which the present
Court, sitting as a court of appeal, did not have. No fault could be found with her assessment and
evaluation of the evidence in its totality.
The Court was satisfied that the essential requirements for a valid customary marriage according to the
customary law of the Bapedi people had been met. The appeal was thus dismissed.
Smit NO & others v His Majesty King Goodwill Zwelithini Kabhekuzulu & others
[2010] JOL 25699 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
10237 / 09
02 / 12 / 2009
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
ND van der Reyden J
Keywords:
Constitutional law – Religious and cultural beliefs – Protection of
Mini Summary:
The applicants were trustees of a trust operating on a non-profit basis for the general benefit of animals
and the environment. The first respondent was the Zulu monarch for the Province of KwaZulu-Natal.
In the present application, the applicants sought an interdict preventing the slaughtering of a bull or any
animal at a festival to take place at one of the first respondent's palaces.
South Africa is a signatory to the Terrestrial Animal Health Code ("the Code") of the World Organisation
for Animal Health, and is therefore bound by the provisions of the Code. The applicants argued that the
methods of slaughter employed during the ritual fell foul of the provision of the Code.
Held that the entire application was based upon the applicants' unsubstantial belief regarding what
happens during the ritual. Their belief was derived from unauthenticated material based on hearsay, and
the application was based upon unreliable information that the applicants had accessed from the internet.
The court found the applicants to have displayed a lack of understanding for cultures different from their
own, and that their attitude was incompatible with the development of a democracy based upon tolerance
and promoting diversity.
The court was presented with two conflicting versions of what happens at the Zulu festival in question.
Only the respondent adduced eye-witness evidence. Applying the approach to be adopted in those
circumstances, the court accepted the respondents' version.
The application was dismissed.
Maloba v Dube & others
[2010] JOL 25852 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
08 / 3077
23 / 06 / 2008
South Africa
High Court
South Gauteng, Johannesburg
Mokgoatlheng J
Keywords:
Customary law – Marriage – Validity
Mini Summary:
The applicant sought a declaration that her late husband ("the deceased") was never married to the first
respondent in accordance with customary law or the Recognition of Customary law Marriages Act 120 of
1998, and that the certificate of registration of the customary marriage issued by the Department of Home
Affairs was invalid.
Essentially, the applicant averred that the posthumous registration of the customary marriage between
the first respondent the deceased was not valid, as no customary marriage in accordance with customary
law was ever concluded.
According to the applicant, after lobolo negotiations between the deceased's family and the first
respondent's family, the deceased informed his mother that he no longer wished to marry the first
respondent, and his family formally informed the first respondent's family that a marriage would not be
concluded.
Held that it was clear that lobolo was agreed upon by the deceased and the first respondent's family. The
question was whether or not the marriage was entered into or celebrated in accordance with customary
law. The objective facts showed that the marriage was negotiated and entered into in accordance with
customary law. A customary marriage can only be dissolved by a competent court. When the deceased or
his family purported to withdraw his consent to the customary marriage, after the payment of lobolo or
part payment thereof, a valid customary marriage had already come into being. The purported withdrawal
of consent would have been a nullity and would not have lawfully dissolved the customary marriage.
The application was dismissed with costs
18. CUSTOMARY MARRIAGES
Moropane v Southon
[2014] JOL 32177 (SCA)
Case Number:
Judgment Date:
Country:
755 / 2012
29 / 05 / 2014
South Africa
Jurisdiction:
Division:
Bench:
Supreme Court of Appeal
KK Mthiyane DP, LO Bosielo, MML Maya, LV Theron JJA, Van Zyl AJA
Keywords:
Customary law – Customary marriage – Requirements for valid customary marriage – Section 3(1) of the
Recognition of Customary Marriages Act 120 of 1998 – Customary law – Requirements for valid customary
marriage – Requirement in section 3(1)(b) that the marriage must be negotiated and entered into or
celebrated in accordance with customary law – How to ascertain what constitutes customary law – Court
may take judicial notice thereof; where it cannot be readily ascertained, expert evidence may be adduced
to establish it; and finally, a court may consult text books and case law
Mini Summary:
In 2000, the respondent moved in with the appellant, and they lived together at the appellant’s house
from that point on. In early 2002, the appellant proposed marriage to the respondent, who accepted.
Although the parties were agreed on the intended marriage, they differed as to its nature. The respondent
maintained that their marriage was to be by customary law whilst the appellant contended that it was to
be by civil rites. According to the respondent, negotiations between her family and that of the respondent
culminated in R6 000 being paid to her family by the appellant’s family. What that amount was for was in
dispute. The respondent alleged that it was for her lobola, while the appellant alleged that the payment
was merely a symbolic gesture for opening negotiations for the respondent as his future wife.
The respondent and her three witnesses testified that a customary marriage was concluded and celebrated
in terms of the customary law on 17 April 2002 between the appellant and the respondent. Importantly,
they testified that the customary marriage was sealed officially by the transfer of the respondent from her
family and delivery to her in-laws. The appellant disputed that a valid customary union was negotiated
and concluded between him and the respondent. The court a quo found against the appellant, leading to
this appeal.
Held that the testimony of the appellant and his brother was unsatisfactory. They were both evasive and
unconvincing as witnesses. On the other hand, the record showed the respondent and her witnesses to
have been honest and candid, giving a clear and coherent account of events.
Ultimately the resolution of the dispute between the parties came down to whether the High Court erred in
finding, on a conspectus of the evidence, that a valid customary marriage was concluded between the
parties on 17 April 2002. The jurisdictional requirements for a valid customary marriage are set out in
section 3(1) of the Recognition of Customary Marriages Act 120 of 1998. What is required is that both
spouses must be over 18, must both consent to be married to each other under customary law; and the
marriage must be negotiated and entered into or celebrated in accordance with customary law. It was not
in dispute that both parties were above the age of 18 years. The only two issues which were seriously
contested were lack of consent by the appellant to marry by customary law and, whether the marriage
was negotiated and entered into in accordance with customary law.
The requirement in section 3(1)(b) that the marriage must be negotiated and entered into or celebrated in
accordance with customary law was clear and unambiguous. There was no attempt to define what was
meant by customary law, as the pluralistic nature of African societies means that African law and its
customs are not static but dynamic. The best approach to ascertaining the real meaning of the
requirement was to examine the current cultural practices and customary law of the particular ethnic
group. As pointed out by the Constitutional Court in the case of Bhe and others v Magistrate, Khayelitsha
and others; Shibi v Sithole and others; SA Human Rights Commission and another v President of the RSA
and another 2005 (1) BCLR 1 (CC), there are three ways to ascertain indigenous law. The court may take
judicial notice thereof; where it cannot be readily ascertained, expert evidence may be adduced to
establish it; and finally, a court may consult text books and case law. Two expert witnesses were called to
testify on Pedi customary marriages in an attempt to assist the Court to determine whether the marriage
between the parties was negotiated and entered into or celebrated in accordance with customary law of
the Bapedi people. They agreed that the handing over of the woman to her in-laws is the most crucial part
of a customary marriage.
It was clear from the evidence and photographs which were admitted as exhibits that a delegation from
the appellant’s family attended the respondent’s home, that there were negotiations between the two
families as a consequence of which an amount of R6 000 was paid by the appellant’s family to the
respondent’s family, and that there was a celebration indicative of a marriage. The versions of the
appellant and the respondent being incompatible, the Court had to weigh the probabilities to determine
which version was more probable than the other, and also had to consider the credibility and reliability of
the various witnesses. The finding by the trial judge of serious improbabilities in the appellant’s version
was confirmed as correct. The trial court also made credibility findings. Having had the advantage of
observing the various witnesses whilst they testified before her, she had an advantage which the present
Court, sitting as a court of appeal, did not have. No fault could be found with her assessment and
evaluation of the evidence in its totality.
The Court was satisfied that the essential requirements for a valid customary marriage according to the
customary law of the Bapedi people had been met. The appeal was thus dismissed.
19. DEATH BENEFITS
Smith v SAA Flight-Deck Crew Provident Fund & another
[2010] JOL 25963 (PFA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
PFA/KZN/24462/2008/TD
20 / 05 / 2010
South Africa
Pensions Fund Tribunal
Durban North
Charles Pillai
Keywords:
Pensions – Death benefits – Distribution of – Payment of death benefits by a pension fund is regulated by
section 37C of the Pension Funds Act 24 of 1956 – Main aim of the section is to ensure that those persons
who were dependant on the deceased during his lifetime, irrespective of whether the deceased was legally
required to maintain them or not, are not left without support after his deathPensions – Death benefit –
Distribution of – Trustees duties – Trustees must identify and trace the circle of beneficiaries; effect an
equitable distribution of the death benefit; and determine an appropriate mode of payment of the
benefitPensions – Death benefit – Distribution of – Trustees powers – Section 37C of the Pension Funds
Act 24 of 1956 gives the trustees of a fund a discretion insofar as the distribution of death benefits is
concerned
Mini Summary:
The complainant's father was a member of the first respondent pension fund until his suicide in 2007. At
the time of his death, the deceased was cohabiting with the second respondent.
The deceased left a suicide note in which he purported to give his house to the second respondent, and
authorised his bank to give her immediate access to cash in a savings account. He also advised her of
money he kept in his safe.
In distributing the death benefit payable by the fund upon the death of the deceased, the fund's trustees
awarded 50% of the benefit to the second respondent and 50% to the complainant. The complainant was
dissatisfied with the trustees' decision to allocate 50% of the death benefit to the second respondent,
alleging that the second respondent was not a dependant of the deceased.
Held that the question for determination was whether or not the tribunal should set aside the trustees'
decision to distribute the death benefit payable following the passing away of the deceased in equal shares
between the complainant and the second respondent.
The payment of death benefits by a pension fund organisation as defined in section 1 of the Pension Funds
Act 24 of 1956 is regulated by section 37C of the Act. In terms of section 37C, any such benefit shall not
normally form part of the assets in the estate of the deceased, but shall be dealt with in terms of the
section. Section 37C gives the trustees discretion insofar as the distribution of death benefits is concerned.
The main aim of the section is to ensure that those persons who were dependant on the deceased during
his lifetime, irrespective of whether the deceased was legally required to maintain them or not, are not left
without support after his death. Section 37C imposes three primary duties on the trustees when they
consider the distribution of a death benefit. They have to first identify and trace the circle of beneficiaries,
ie all the dependants and nominated beneficiaries of the deceased. Once the circle of beneficiaries is
identified, the trustees have to effect an equitable distribution of the death benefit; and finally the trustees
must determine an appropriate mode of payment of the benefit. In doing the above, the trustees must
consider all the relevant factors to the exclusion of all the irrelevant factors and must not fetter their
discretion in any way. Where it is found that the trustees failed to take into account relevant factors, or
took into account irrelevant factors, the trustees' decision shall be reviewable on the grounds that they
have exceeded their power or that the decision constituted an improper exercise of their powers.
In the present case, the trustees found the complainant to fall squarely within the definition of a
"dependant", while the second respondent was found to be a factual dependant. Examining the factors
taken into account by the trustees, the adjudicator found no improper exercise of their discretion. The
distribution of the death benefit was not unreasonable, and the complaint was accordingly dismissed.
20. DETENTION OF CHILDREN
21. DIVORCE GENERAL
SB v RB
[2015] JOL 32866 (ECLD, George)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
13622 / 2011; 36 / 2009
16 / 04 / 2014
South Africa
High Court
Eastern Circuit Local Division, George
JI Cloete J
Keywords:
Persons – Marriage – Termination of – Divorce – Marriage out of community of property, excluding accrual
– Proprietary consequences – Claim for maintenance – Alleged existence of partnership
Mini Summary:
The parties were married on 26 September 1998 out of community of property by antenuptial contract
with the express exclusion of the accrual system. They separated permanently during November 2008,
and it was common cause that the marriage had irretrievably broken down. The plaintiff sued for divorce,
and apart from seeking a decree of divorce, advanced several other claims. The first claim was that during
the marriage the parties agreed to form a joint estate, and that the plaintiff is thus entitled to 50%
thereof. Second, or alternatively, the plaintiff sought an order declaring that a partnership was formed
during the marriage for the purpose of a commercial enterprise, namely the buying and selling of
immovable properties, coupled with the usual consequential relief. The third claim, which the plaintiff
accepted could only be advanced as a further alternative to the first claim, was for payment of R135 000
which was a portion of the sale proceeds of a vehicle which the defendant was alleged to have donated to
her during the marriage. The fourth claim was for nominal maintenance from the defendant.
Held that having married during 1998, the proprietary consequences of the parties’ marriage were
governed by the Matrimonial Property Act 88 of 1984. Because the plaintiff married the defendant after
the commencement of the Act, out of community of property by antenuptial contract with the express
exclusion of the accrual system, and received wrong legal advice about how to change the parties’
matrimonial property system pursuant to an express agreement reached during the marriage, the current
legislative scheme prevented the present Court from coming to her assistance. The Court found that to fly
in the face of the equality principle enshrined in section 9 of the Bill of Rights, and to be a classic example
of how a party to a civil marriage can be unfairly discriminated against purely on the arbitrary basis of the
date of that marriage. Based on the law as it stood currently, the Court had to dismiss the first main
claim.
The alternative claim to 50% of the defendant’s estate was based on the defendant’s promise to the
plaintiff that she could have half his estate if she resumed her marriage relationship with him. The letter
produced by the plaintiff in that regard did not support her allegation, and in the absence of any proof, the
claim was dismissed.
The Court then turned to consider the claim for a declaration of the existence of a partnership. The
essential elements of a partnership are that each party contributes, or undertakes to contribute, money,
labour or skill; the business of the partnership is conducted for their joint benefit; and the purpose is to
make a profit. The Court held that the claim based on a tacit partnership agreement was neither
supported by the terms of the proven agreement nor by the objective facts.
Although the defendant denied donating the vehicle he purchased for the plaintiff to her, the Court found
that the evidence pointed to the contrary. The plaintiff was entitled to the proceeds claimed by her.
Finally, the Court found that the plaintiff had proved an entitlement to an order for nominal maintenance.
Miller and others v Miller
[2014] JOL 32176 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
9758 / 2011
13 / 02 / 2014
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Ploos van Amstel J
Keywords:
Persons – Marriage – Termination of – Divorce – Claim in reconvention – Exception to
Mini Summary:
The plaintiff and defendant were married to each other but wished to divorce. The husband (Mr Miller)
instituted divorce proceedings. In her claim in reconvention, Mrs Miller pleaded that the marriage was
subject to the accrual system which was established in Chapter 1 of the Matrimonial Property Act 88 of
1984 (“the MPA”) and sought an order directing her husband to pay her an amount equal to 50% of the
amount by which the accrual of his estate exceeded that of her estate. The main issue which was argued
before the Court was whether the assets in a family trust can be taken into account in the determination
of the accrual of the husband’s estate, as contemplated in section 4 of the Act.
The dispute related to the assets of a family trust. The defendant pleaded that the trust was the alter ego
of the plaintiff and that its assets should be deemed to form part of his assets for the purpose of
determining the accrual of his estate. She however did not aver that the trust assets were in fact his
property or part of his estate, nor did she aver that the trust was not a genuine one.
The matter before the Court concerned a number of exceptions by the plaintiff and the trustees of the
family trust against claims made by the defendant in her claim in reconvention.
Held that section 3(1) of the Act provides that at the dissolution of a marriage subject to the accrual
system the spouse whose estate shows a smaller accrual than the estate of the other spouse acquires a
claim against the other spouse for an amount equal to half of the difference between the accrual of their
respective estates. Section 4(1)(a) provides that the accrual of the estate of a spouse is the amount by
which the net value of his estate at the dissolution of his marriage exceeds the net value of his estate at
the commencement of that marriage.
In the case of an accrual claim the court is not required to make an assessment of what it deems to be
just. It is required to determine, on the evidence before it, the amount equal to half of the difference
between the accrual of the respective estates of the spouses. It is a factual enquiry. The determination is
made in accordance with sections 4 and 5. Section 4(1)(a) provides that the accrual of the estate of a
spouse is the amount by which the net value of his estate at the dissolution of his marriage exceeds the
net value of his estate at the commencement of that marriage.
The amount of an accrual claim is determined on a factual and mathematical basis and is not a matter of
discretion. What a spouse’s estate consists of is a factual enquiry.
The Court found that the averments made in support of claim F in the claim in reconvention did not
sustain the claim and the exception should be upheld in this respect. The remaining exceptions were
dismissed.
De Beer v Tshwane Municipal Provident Fund
[2011] JOL 28025 (PFA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
PFA / GA / 20332 / 2007 / TD
18 / 08 / 2011
South Africa
Tribunal of the Pension Funds Adjudicator
Johannesburg
Dr EM De la Rey
Keywords:
Pensions – Divorce – Amendment to section 37D of the Pension Funds Act 24 of 1956, so as to accelerate
the date of accrual of the benefit to the member spouse and in turn the date on which the divorce benefit
accrues to the non-member spouse which is the date of divorce – Financial Services Laws General
Amendment Act 22 of 2008 makes new section 37D retrospective in application
Mini Summary:
The complainant and her husband were divorced in 2006. The divorce order stipulated that the
complainant would be entitled to half of her spouse’s pension interest as at date of divorce. When the
complainant requested payment, the respondent refused to accede to the request on the basis that the
Pension Funds Amendment Act 11 of 2007, which came into operation on 13 September 2007, does not
refer to any divorce orders granted before that date nor does it state that it applies retrospectively to any
divorce orders prior to 13 September 2007.
Held that the issue for determination was whether or not the respondent’s refusal to pay the complainant
her 50% portion of pension interest was reasonable and justifiable in terms of the Act, read together with
the Divorce Act 70 of 1979.
Since the issuing of the complainant’s divorce order, the law had changed. In terms of section 7(8)(a)(i)
of the Divorce Act, a court granting a decree of divorce may make an order that the share of the pension
interest allocated to the non-member spouse be paid by the fund to such spouse when any pension
benefits accrue in respect of the member spouse which can either be on retirement, resignation,
retrenchment or dismissal. As that undermined the clean-break principle, the Pension Funds Amendment
Act sought to address the problem by amending section 37D of the Pension Funds Act 24 of 1956. The
new section 37D(1)(e) accelerates the date of accrual of the benefit to the member spouse and in turn the
date on which the divorce benefit accrues to the non-member spouse which is the date of divorce.
To deal with the issue of retrospectivity, section 37D(4)(d) of the Financial Services Laws General
Amendment Act 22 of 2008 states that any portion of the pension interest that is payable to a nonmember spouse that was granted prior to 13 September 2007 is deemed to have accrued to the nonmember spouse on 13 September 2007. Section 37D(4)(a), in turn states that the pension interest that is
assigned to the non-member spouse is deemed to accrue to the member spouse on the date on which the
divorce order was granted. The amended section 37D of the Pension Funds Act applies to divorce orders
granted prior to 13 September 2007 and the mere fact that the date of accrual of the benefit to the
member spouse is accelerated does not mean that the Amendment Act applies retrospectively. The
respondent’s submission that it could not apply the Pension Funds Amendment Act as if it applied
retrospectively could not be sustained, and its decision to refuse the complainant’s request for payment
was set aside.
Labuschagne v Labuschagne
[2012] JOL 28252 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
4172 / 2007
29 / 11 / 2011
South Africa
High Court
KwaZulu-Natal, Durban
Murugasen J
Keywords:
Persons – Marriage – Divorce – Section 5A of Divorce Act 70 of 1979 – Applicability
Mini Summary:
The plaintiff instituted action for divorce against the defendant, on the grounds of irretrievable breakdown
of the marriage. The parties were married out of community of property with the exclusion of the accrual
system and there were no children born of the marriage.
The Court drew attention to the proliferation of applications and counter-applications launched by the
parties, and to the failure by the parties to properly prepare the mass of papers which had been filed.
In an attempt to limit the issues for determination, an enquiry in terms of Rule 37 of the Uniform Rules
was conducted with the parties. It was decided that the issues were the cause of the breakdown of the
marriage; whether section 5A of the Divorce Act 70 of 1979 applied to the marriage between of the
parties, and if it did, whether the Court should order an annulment of the marriage or a decree of divorce;
and whether the plaintiff owed the defendant the sum of R144 832,23 being monies loaned and advanced
to the plaintiff by the defendant.
Held that the issue of who was responsible for the breakdown of the marriage was disputed. The Court
was faced with mutually destructive versions in this regard.
The defendant sought damages in a plea and counterclaim, and alleged that she was entitled to a
forfeiture of assets although she was married out of community without accrual in terms of the
Matrimonial Property Act 88 of 1984. When the accrual system is expressly excluded in an antenuptial
contract of a marriage out of community, the parties do not have any (patrimonial) claims against each
other in terms of the provisions of either the Matrimonial Property Act or the Divorce Act, regardless of the
type of marriage or union. In terms of section 9 of the Divorce Act, a court which grants a decree of
divorce has a discretion to order that the patrimonial benefits of the marriage be forfeited to the other
either wholly or in part under certain circumstances. The defendant failed to specify the benefits that she
alleged were to be forfeited to her. Further she failed to prove on a balance of probabilities that there was
substantial misconduct on the part of the plaintiff.
Explaining the provisions of section 5A of the Divorce Act, the Court stated that the section vests the
Court with a discretion as to whether it should order that the dissolution of the civil marriage be subject to
a compliance with a religious or cultural practice or belief of the parties. In this case, the evidence
established that there was no prescribed religious procedure which lay to be enforced in terms of section
5A. A decree of divorce was therefore granted.
Turning to the defendant’s counter-claim for the recovery of monies allegedly loaned and advanced by her
to the plaintiff in terms of an oral agreement of loan, the Court identified the issue for determination as
being whether the defendant had discharged the onus of proving on a balance of probabilities that the oral
loan agreement on terms as alleged by her was entered into by the parties. It was found that the
defendant had proved the existence of the oral loan agreement between the parties and that the plaintiff
owed her the money as claimed.
22. DIVORCE PENSION FUNDS
De Beer v Tshwane Municipal Provident Fund
[2011] JOL 28025 (PFA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
PFA / GA / 20332 / 2007 / TD
18 / 08 / 2011
South Africa
Tribunal of the Pension Funds Adjudicator
Johannesburg
Dr EM De la Rey
Keywords:
Pensions – Divorce – Amendment to section 37D of the Pension Funds Act 24 of 1956, so as to accelerate
the date of accrual of the benefit to the member spouse and in turn the date on which the divorce benefit
accrues to the non-member spouse which is the date of divorce – Financial Services Laws General
Amendment Act 22 of 2008 makes new section 37D retrospective in application
Mini Summary:
The complainant and her husband were divorced in 2006. The divorce order stipulated that the
complainant would be entitled to half of her spouse’s pension interest as at date of divorce. When the
complainant requested payment, the respondent refused to accede to the request on the basis that the
Pension Funds Amendment Act 11 of 2007, which came into operation on 13 September 2007, does not
refer to any divorce orders granted before that date nor does it state that it applies retrospectively to any
divorce orders prior to 13 September 2007.
Held that the issue for determination was whether or not the respondent’s refusal to pay the complainant
her 50% portion of pension interest was reasonable and justifiable in terms of the Act, read together with
the Divorce Act 70 of 1979.
Since the issuing of the complainant’s divorce order, the law had changed. In terms of section 7(8)(a)(i)
of the Divorce Act, a court granting a decree of divorce may make an order that the share of the pension
interest allocated to the non-member spouse be paid by the fund to such spouse when any pension
benefits accrue in respect of the member spouse which can either be on retirement, resignation,
retrenchment or dismissal. As that undermined the clean-break principle, the Pension Funds Amendment
Act sought to address the problem by amending section 37D of the Pension Funds Act 24 of 1956. The
new section 37D(1)(e) accelerates the date of accrual of the benefit to the member spouse and in turn the
date on which the divorce benefit accrues to the non-member spouse which is the date of divorce.
To deal with the issue of retrospectivity, section 37D(4)(d) of the Financial Services Laws General
Amendment Act 22 of 2008 states that any portion of the pension interest that is payable to a nonmember spouse that was granted prior to 13 September 2007 is deemed to have accrued to the nonmember spouse on 13 September 2007. Section 37D(4)(a), in turn states that the pension interest that is
assigned to the non-member spouse is deemed to accrue to the member spouse on the date on which the
divorce order was granted. The amended section 37D of the Pension Funds Act applies to divorce orders
granted prior to 13 September 2007 and the mere fact that the date of accrual of the benefit to the
member spouse is accelerated does not mean that the Amendment Act applies retrospectively. The
respondent’s submission that it could not apply the Pension Funds Amendment Act as if it applied
retrospectively could not be sustained, and its decision to refuse the complainant’s request for payment
was set aside.
23. DOMESTIC VIOLENCE
Minister of Safety and Security v Venter & another
[2011] JOL 26949 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
570 / 2009
29 / 03 / 2011
South Africa
Supreme Court of Appeal
L Mpati P, A Cachalia and SA Majiedt JJA
Keywords:
Delict – Claim for damages – Failure by police to inform respondents of their rights under the Domestic
Violence Act 116 of 1998 – Such failure amounting to a breach of the duties of the police in affording
maximum protection to victims of doemstic violence –Delict – Claim for damages – Failure by police to
inform respondents of their rights under the Domestic Violence Act 116 of 1998 – Contributory negligence
– Court confirming that respondents were negligent in failing to obtain a common law interdict and that
that contributed to the harm
Mini Summary:
After the second respondent’s divorce from her husband (“the deceased”) he became threatening when he
heard of her relationship with the first respondent. As a result of the deceased’s increasingly erratic and
threatening behaviour the first respondent approached the police during June 2002 to seek advice on how
he could deter the deceased from coming to his house. They told him that they could only act if the
deceased physically tried to enter the house.
Subsequently, the respondents approached the police for assistance on several occasions, but nothing
came of their complaints. Eventually, in October 2002, the deceased arrived at the respondents’ house
and after threatening her, raped her. He then lay in wait for the return of the first respondent. Upon
arriving home, the latter grew alarmed upon realising that the deceased was inside the house, and
therefore attempted to enter the house despite knowing the deceased was there. The deceased shot and
injured the first respondent. The police arrived and arrested the deceased, who later committed suicide
whilst in custody.
The respondents sued the appellant for damages based on the failure of the police to perform their legal
duty to assist the respondents to take steps to protect themselves under the Domestic Violence Act 116 of
1998 (“the Act”). The appellant did not dispute that the Act imposes a legal duty to take steps to protect
the respondents in the circumstances of this case. Nor did he dispute that the police were negligent in
failing to assist the respondents in accordance with the Act’s provisions. However, he contended that the
respondents had failed to prove that such negligence caused their damages, because they would probably
not have taken steps to protect themselves even if the police had assisted them or, at the very least, that
their own negligence contributed to what happened.
Held that the Act and the National Instructions on Domestic Violence (the Instructions) require the police
to advise persons of their rights and to assist them in asserting these rights, where necessary. Section
12(1) of the Constitution imposes a duty on the police to protect the right of everyone to be free from
private or domestic violence. The preamble to the Act declares that its objective is to afford the victims of
domestic violence the maximum protection from domestic abuse that the law can provide. Section 2
imposes a duty to assist and inform complainants of their rights under the Act.
On receipt of a domestic violence complaint, wide-ranging duties are imposed on both the station
commander and the member receiving the complaint. These include the duty to investigate a complaint
and to collate all information in connection with it.
The respondents contended that had they been aware of and understood their rights under the Act – in
particular their right to apply for a protection order – they would have taken the appropriate steps to
protect themselves. That was disputed by the appellant.
The court pointed out that the wide ranging remedies available to persons in the position of the
respondents would be rendered meaningless if the police, as first point of contact in giving effect to these
rights and remedies, remained distant and aloof to them, as the facts of this case appear to suggest.
The test for causation in delict, consists of two legs, namely factual and legal causation. Factual causation
is to be determined by application of the “but for” test. The high court found that the evidence had
established that the police’s failure to advise the respondents of their remedies under the Act was the
critical cause for why they had not pursued this course. The present court could not fault the high court’s
reasoning. The respondents had therefore established factual causation. Concerning legal causation the
appellant did not advance any grounds to suggest that there were any policy considerations that stood in
the way of a finding against the appellant. Our courts have in the recent past consistently held the police
liable for failure to perform their statutory duty to protect citizens resulting in harm being suffered through
such failure. Legal causation was clearly established in this case.
The next question was whether the respondents were contributorily negligent. The appellant’s main
contention was that they were negligent in two main respects: first, by failing to obtain a common law
interdict and second, by the first respondent’s not leaving his firearm in a locked safe and also by
attempting to gain entry to the house when contacting the police would have been the more prudent
course of action. In the second resondent’s case it was contended that she was additionally negligent in
permitting the deceased to enter the house. The court held that it was not unreasonable for the first
respondent to have left his firearm accessible for the second respondent to protect herself int he face of
threats from the deceased - or for him to have attempted to gain entry to the house when he perceived
that the second respondent and, possibly her children, whom he thought were at home, were in danger.
The second respondent explained that she let the deceased into the house because she believed that it
would antagonise him if she did not. Her conduct in that regard was not unreasonable.
In considering whether the respondents were negligent in failing to obtain the common law interdict, the
court emphasised two considerations in assessing contributory negligence. The first is that reasonable
conduct cannot be judged with the benefit of hindsight and one must guard against the drawing of
conclusions from ex post facto knowledge. Secondly, care must be taken not to conflate separate
elements of a delictual action such as causation and negligence.
The court’s conclusion was that the respondents were negligent in failing to obtain the interdict and that
that contributed to the harm. Comparing the respective degrees of negligence, it was clear that the
negligence of the appellant was far greater than that of the respondents. It was confirmed that the
appellant was liable for 75% of the respondents’ proven damages.
The appeal was, but for a minor aspect, dismissed.
Dziba v S
[2012] JOL 28860 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 92 / 2011
07 / 11 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
JW Eksteen, N Dambuza JJ
Keywords:
Criminal law – Domestic violence – Protection order – Alleged contravention – Conviction and sentence –
Appeal
Mini Summary:
Convicted of a contravention of section 17(a) of the Domestic Violence Act 116 of 1998, the appellant was
sentenced to pay a R6 000 of to serve 12 months’ imprisonment.
The complainant had obtained a protection order against the appellant in March 2010. According to the
charge sheet, the appellant had contravened the terms of the protection order.
Held that the onus of proving the appellant’s guilt rested on the state. That included establishing that the
appellant had the requisite mens rea to contravene the protection order.
In the present case, the magistrate did not consider whether the version advanced by the appellant could
be reasonably possibly true. The version of the complainant and her father, which contained certain
contradictions, were accepted as true on the basis that they had laid a charge with the police. That
conclusion was not justified.
Finding the appellant’s version to be reasonably possibly true, the Court upheld the appeal and set aside
the conviction and sentence.
GREENBERG v GOUWS AND ANOTHER 2011 (2) SACR 389 (GSJ)
The appellant successfully instituted action for damages against second
defendant, the Minister of Safety and Security, pursuant to his arrest and
detention for allegedly breaching a protection order issued in terms of the
Domestic Violence Act 116 of 1998 (the Act). The arrest was effected three days
after
appellant
had
allegedly
threatened
and
intimidated
complainant
telephonically. Complainant reported this incident to the police two days after it
occurred, and a later incident — appellant's arriving at her home to collect his
personal belongings — on the day it occurred, the day of the arrest. At issue on
appeal was whether the conduct of first defendant — a police officer, who was
acting in the course and scope of her employment with second defendant when
she arrested appellant — was lawful and/or justifiably premised upon 'imminent
harm' to the complainant as F contemplated by s 8(4)(b) of the Act. The second
respondent was granted leave to appeal against the whole of the judgment and
order of the court a quo, and the appellant was granted leave to cross-appeal
against the amount of damages awarded by the court a quo. On appeal,
Held, that, where a warrant of arrest had been authorised in terms of s 8 of the
Domestic Violence Act 116 of 1998, an arrest in terms thereof could only G be
lawfully effected if the member of the South African Police Service had
reasonable grounds for suspecting that a complainant might suffer imminent
harm — as contemplated in s8(4)(b) of the Act — as a result of the breach of a
protection order. In considering whether or not there were such reasonable
grounds, the member of the South African Police Service concerned had to take
into account, inter alia, the risk to the safety, healthor wellbeing of the
complainant, as well as the seriousness of the conduct comprising the alleged
breach of a protection order in terms of the Act.
Held, further, as to what constituted 'a reasonable suspicion' in the context of a
contravention of a protection order in terms of the Act, our courts have held that
the words 'reasonable suspicion' had to be interpreted 'objectively', and that 'the
grounds of suspicion must be those which would induce a reasonable man to
have the suspicion'. In line with this interpretation was the generally accepted
meaning of the phrase in the context of the Criminal Procedure Act 51 of 1977,
that the arresting officer had to have formed a suspicion which was 'objectively
sustainable'.
Held, further, as to what constituted 'imminent harm', dictionary definitions
indicated that 'imminent' connoted 'about to happen', it having also been
described in case law as 'an event which is both certain and about to occur'.
Held, further, that there was no objective basis for first respondent to have
reasonably suspected that the appellant might cause harm to the complainant on
the basis of the report to her, three days later, of the telephonic conversation
and/or on the basis of the later report to her of the encounter between the parties
on the day of appellant's arrest. In these circumstances, the arrest of the
appellant was not premised upon a reasonable suspicion of any imminent harm
to the complainant. The court a quo correctl found that the arrest was wrongful
and unlawful and the appellant's detention was accordingly also unlawful.
Case Information
Appeal to a full bench from a decision in the South Gauteng High I Court
(Franklin AJ). The facts appear from the judgment of Mayat J.
Sibanda v Sibanda
[2010] JOL 26036 (ZH)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
HC 578 / 10
15/ 04 / 2010
Zimbabwe
High Court
Bulawayo
Ndou J
Keywords:
Family law – husband and wife – domestic violence – protection order under Domestic Violence Act
[Chapter 5:16] – purpose of – courses open to party objecting to terms of order granted against him
Mini Summary:
The applicant and the first respondent were husband and wife. They were separated. The separation was
an acrimonious one. The first respondent instituted proceedings against the applicant under section 11 of
the Domestic Violence Act [Chapter 5:16]. She sought a provisional protection order against him. An
interim protection order was granted and subsequently confirmed. In addition, the magistrate granted an
emergency monetary relief in favour of the first respondent against the applicant. The applicant noted an
appeal against the confirmation of the protection order and the granting of the emergency monetary
relief. In spite of the noting of the appeal, the clerk of court issued a directive against the applicant’s
salary. The applicant sought to have this directive reviewed and, simultaneously filed an application to
stay the directive. The main complaint by the applicant in these two applications is that he was not
notified of the directive before it was issued. The applicant based his application for review on failure to
comply with the provisions of sections 9(2) and (3) of the Maintenance Act [Chapter 5:09].
Held that the applicant did not seek revocation in terms of section 12 of the Domestic Violence Act, but
chose to approach the court for review of the clerk of court's act. The purpose of the Act is to provide
relief to victims on an interim basis whilst the other competent courts are still determining the main
issues. In cases of divorce, the complainant party must be protected against violence. The complainant
and the children must be maintained in the interim period. Children cannot wait for determination of the
divorce or maintenance between their parents without provision for their maintenance. The Act provides
instant relief orders to cater for this interim period. To allow suspension of such orders pending the
determination of the main matter would defeat the purpose of the Act and the court should guard against
abuse of its process to defeat the protective measures enshrined in the Act.
24. EDUCATION OF CHILD
Section 27 & others v Minister of Education & another
[2012] JOL 29025 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
24565 / 2012
17 / 05 / 2012
South Africa
High Court
North Gauteng, Pretoria
Kollapen J
Keywords:
Constitutional law – Right to education – Provision of text books – Failure to provide text books – Violation
of right to basic education
Mini Summary:
The first applicant was an organisation that sought to influence, develop and use the law to protect,
promote and advance human rights. It brought the present application in its own name as well as in the
public interest. The second applicant was a school attended by some 1516 learners in Grades 8 to 12. The
third applicant was the parent of two learners at another school. The learners had not been provided with
text books for the 2012 academic year. The applicants brought the present application for relief, on an
urgent basis.
The first respondent was the Minister of Basic Education, while the second respondent was the member of
the Executive Council of the Limpopo Department of Education.
Held that the Court was satisfied that the matter was urgent.
The second issue addressed was whether the failure by the respondents to provide text books to schools
in Limpopo, constituted a violation of the right to basic education, equality and dignity and the South
African Schools Act 84 of 1996 and section 195 of the Constitution. That led to the narrow question of
whether the provisions of text books is a component of the right to basic education. The Court found that
the provision of learner support material in the form of text books, is an essential component of the right
to basic education and its provision is inextricably linked to the fulfilment of the right. Thus, the failure to
provide text books, almost midway through the academic year would prima facie constitute a violation of
the right to basic education.
Attempting to defend its failure, the respondents urged the Court to take into account the problems
encountered by them, and that they had acted bona fide at all times. The Court pointed out that bona
fides is not a relevant consideration in this application, as conduct that would constitute a violation of a
right does not have to be mala fide.
Next the Court considered whether the measures taken by the respondent were reasonable in the
circumstances. It was not convinced that the respondents had acted with the necessary urgency in
addressing the problem.
The conclusion was that the failure by the respondents to provide text books, constituted a violation of
right to basic education. The respondents were directed to provide the outstanding text books urgently,
and to develop a catch-up / remedial plan for affected Grade 10 learners in the province.
Louw v Louw
[2011] JOL 26795 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
75723 / 10
22 / 12 / 2010
South Africa
High Court
North Gauteng, Pretoria
C Botha J
Keywords:
Family law – Children – Education
Mini Summary:
The parties herein were previously married, and had a daughter. A court order ruled that the child would
spend alternative weeks with each parent.
The applicant was dissatisfied with the school which the child had been attending thus far, and sought an
order that she be enrolled in another school for the 2011 year.
Held that if the child were to be moved to the school suggested by the applicant it would entail a
disruption in her education. The court found no reason to disturb the status quo and dismissed the
application.
25. FOSTER-CARE
SS (a minor child) v Presiding Officer of the Children's Court, District Krugersdorp & others In
re: Children's Institute v NCM (a minor child)
[2011] JOL 27939 (GSJ)
Case Number:
Judgment Date:
Country:
A 3056 / 11
25 / 10 / 2011
South Africa
Jurisdiction:
Division:
Bench:
High Court
South Gauteng, Johannesburg
WL Wepener, R Mokgoatlheng JJ
Keywords:
Persons – Children – Foster care – Refusal of – Appeal – Procedural issues
Mini Summary:
The Magistrate’s Court issued an order that the appellant, a minor, was not in need of care and protection
as envisaged in section 150(1)(a) of the Children’s Act 38 of 2005. The Court therefore refused to place
the child in foster care. The appeal was directed at that order.
Three other applications had to be addressed by the court before dealing with the merits of the appeal.
The first was an application by the second and third respondents, being the Minister of Social
Development and the Member of the Executive Council for Health and Social Development, Gauteng,
respectively, to be joined in the matter either as amici curiae or as respondents. The second was by the
Children’s Institute, the proposed amicus curiae, in terms of which it sought to be admitted as amicus
curiae in the appeal. The third application was brought by the proposed appellant by way of urgency to
hear another matter together with the appeal already before the Court.
Held that a joinder of the second and third respondents was required by Uniform Rule 10A if the
constitutional validity of a law was challenged. In this matter there was no challenge to the validity of the
legislation as far as the appellant and the two respondents were concerned. It concerned the
interpretation of legislation and the joinder could not be pursuant to rule 10A. The joinder of a party is
necessary when the interests of such a party may be affected by the court’s order. The test is whether or
not a party has a “direct or substantial interest” in the subject matter of the action or has a legal interest
in the subject matter of the litigation which may be affected prejudicially by the judgment of the court.
Finding that the second and third respondents had a direct and substantial interest in the order which the
court might give, the Court found their joinder to be necessary.
The application by the proposed amicus curiae to be admitted as such was postponed sine die to allow the
proposed amicus curiae to properly apply to be admitted at the hearing of the matter.
SS v Presiding Officer of the Children's Court, District of Krugersdorp and others (Children's
Institute as amicus curiae)
[2012] JOL 29302 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 3056 / 11
29 / 08 / 2012
South Africa
High Court
South Gauteng, Johannesburg
H Saldulker J, MVR Potgieter AJ
Keywords:
Persons – Children – Foster care – Refusal to make order – Appeal
Mini Summary:
The appellant was a minor child who was raised by the Lamani family from the time he was a year old. He
was brought to them by his mother who subsequently died in 2007. Because of the backlog in the
casework of social workers, the case was unattended until it was brought to a social worker’s attention in
February 2010. It was then that the relevant investigation into the background and foster screening
process to assist the Lamanis in their foster care application for the minor child, began.
Pursuant to an inquiry in terms of section 155(1) of the Children’s Act 38 of 2005, the Child Commissioner
did not make a foster care order. The present appeal was against the judgment and order of the Child
Commissioner. It was specifically directed against the finding by the Child Commissioner that the minor
child was not in need of care and protection as envisaged in section150(1)(a) of the Children’s Act and the
consequent refusal to place the child in foster care.
All the parties accepted in this appeal that the minor child could obtain a foster child grant if he fell within
the meaning of section 150(1)(a) of the Children’s Act, which provides that “a child is in need of care and
protection if, the child has been abandoned or orphaned and is without any visible means of support”.
Held that the question that needed to be addressed was the proper interpretation of the words “without
any visible means of support”, and whether the words pertained solely to the means of the child and not
the caregiver. The appeal therefore centred on the proper interpretation of section 150(1)(a) of the
Children’s Act.
The Court found that the Child Commissioner had erred in the interpretation of the phrase “without visible
means of support” in section 150(1)(a). He should have interpreted the words “without visible means of
support” solely with regard to the child without regard to the caregiver, and should accordingly have found
the minor child to be in need of care and protection, and placed him in the foster care of the Lamanis.
The Court upheld the appeal and placed the child in the foster care of the Lamanis.
26. GRANDPARENTS
27. GUARDIANSHIP
KLVC v SDI and another
[2015] JOL 32761 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
20334 / 2014
12 / 12 / 2014
South Africa
Supreme Court of Appeal
BH Mbha, MML Maya, LE Leach, LV Theron JJA, Schoeman AJA
Keywords:
Family law – Parent and child – Unmarried fathers – Rights of – Acquisition of full parental responsibilities
and rights of an unmarried father – Requirements set out in section 21(1)(b)(i) to (iii) of the Children’s
Act 38 of 2005 – Where father had met all the requirements prescribed in section 21(1)(b)(i) to (iii) of the
Children’s Act 38 of 2005 and therefore had acquired full parental rights and responsibilities in respect of
the child, it was necessary for the mother to have obtained the father’s consent prior to applying for a
passport for the child’s removal from South Africa RRS v DAL (22994/2010) [2010] ZAWCHC 618 (10
December 2010) – Referred to Fraser v Children’s Court, Pretoria North 1997 (2) BCLR 153 (1997 (2) SA
261) (CC) – Referred to
Mini Summary:
A minor child was at the centre of the present dispute. The appellant and first respondent were parents of
the child, and although they were never married to each other, nor did they cohabit or live together in a
permanent life partnership, the first respondent had at all material times consented to being identified as
the child’s father. In November 2012, while the first respondent was on a brief visit overseas, the
appellant removed the child from Durban and relocated to England without either informing or seeking
permission from the first respondent to do so.
In terms of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 (the Hague
Convention), the first respondent applied to the High Court of Justice, Family Division of the United
Kingdom (the English court) for an order directing the appellant to return the child to his habitual place of
residence in Durban, South Africa. The basis of the application was that the appellant had removed the
child from South Africa to England in breach of the first respondent’s co-parental rights and responsibilities
by not seeking the first respondent’s approval before doing so. The fundamental question for resolution
before the English court was whether the appellant’s removal of the child from South Africa without the
first respondent’s approval was wrongful. That entailed a consideration of whether the removal of the child
was wrongful because it was in breach of the rights of custody of the father under the law of South Africa
immediately before the removal of the child, and whether the relevant rights of custody were actually
being exercised at the time of the child’s removal.
Unable to decide the question, the English court made an order referring to a South African court for
determination, the question of whether in November 2012, it was lawful under South African law having
regard to the circumstances of this case, for the appellant to change the place of residence of the child
from a place in South Africa to a place in England and Wales without the prior permission or consent of
the first respondent or a South African court.
The court a quo ruled in the first respondent’s favour, finding that in November 2012, the father had met
all the requirements prescribed in section 21(1)(b)(i) to (iii) of the Children’s Act 38 of 2005 and therefore
had acquired full parental rights and responsibilities in respect of the child. Accordingly, it was necessary
for the appellant to have obtained the first respondent’s consent prior to applying for a passport for the
child’s removal from South Africa.
The appellant appealed against that finding.
Held that section 21(1)(b) provides for the acquisition of full parental responsibilities and rights of an
unmarried father if he consents to being identified as the child’s father; 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 towards expenses in connection with the maintenance of the child for a
reasonable period.
Determining whether or not an unmarried father has met the requirements in section 21(1)(b) is an
entirely factual enquiry. It is a type of matter which can only be disposed of on a consideration of all the
relevant factual circumstances of the case. It was unnecessary to rule on whether the requirements set
out in section 21(1)(b) ought to be determined conjunctively or whether they were simply categories of
facts which a court must consider before concluding whether an unmarried father has acquired full
parental responsibilities and rights in respect of a minor child or not.
Much of the debate before the Court related to whether the first respondent had contributed adequately or
at all, or had attempted in good faith to contribute over a reasonable period, towards the upbringing or
expenses in connection with the maintenance of the child. The Court considered the meaning that was
intended by the legislature in including phrases or words such as “contribute(s)” and “for a reasonable
period” in the section. What needs to be determined is the nature and extent of the contribution required
for the child’s upbringing and for expenses in respect of the child in order for an unmarried father to
acquire full parental responsibilities and rights. The Court was of the view that the legislature was
deliberately not prescriptive in defining that nature of the required contribution. Based on the evidence
adduced, the Court agreed with the court a quo that the first respondent had indeed met what was
required by section 21(1)(b)(ii). The first respondent demonstrated sufficiently that he had acquired full
parental responsibilities in respect of the child by November 2012. As co-guardian, his consent was
therefore required prior to the removal of the child from South Africa by the appellant.
CM v NG
[2012] JOL 28836 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
8026 / 2011
26 / 04 / 2012
South Africa
High Court
Western Cape, Cape Town
Gangen AJ
Keywords:
Persons – Children – Parental rights – Care and contact – Guardianship – Same-sex parents
Mini Summary:
The parties herein had been involved in a same-sex relationship, but never registered a marriage. The
relationship led to a child being born, by artificial insemination of the respondent. The latter was therefore
the child’s biological mother. The relationship ended in November 2010.
In an application in terms of sections 23 and 24 of the Children’s Act 38 of 2005, the applicant sought an
order granting her full parental rights and responsibilities in respect of the child.
Opposing the application, the respondent alleged that the decision to have a child was hers alone, and
that the applicant had been involved only because of her relationship with the respondent.
Held that the evidence adduced in Court ran counter to the respondent’s assertions that the child was
intended to be hers alone. The Court found that the child had regarded both parties as parents, and that
the applicant should be treated as such.
Turning to the relief sought, the Court identified the two questions for determination as being whether an
interested person applying in terms of section 23 is entitled to an order for both care and contact, and
secondly, whether an interested person applying in terms of section 24 for guardianship is only entitled
thereto if the party can show that the existing guardian is not suitable, having regard to section 24(3).
Both care and contact are components of parental rights and responsibilities. The concept of care goes
beyond the traditional concept of custody. The Court found that an interested person applying in terms of
section 23 is entitled to an order for both care and contact.
Section 24(3) would only apply where exclusive guardianship rights were being applied for.
In each case, the best interests of the child will be of paramount importance. The Court concluded that
both parties should be co-holders of parental rights and responsibilities in respect of the child, and that
they should be co-guardians
28. INTERIM MAINTENANCE
Wood v Wood
[2014] JOL 32402 (GP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
32130 / 2014
08 / 10 / 2014
South Africa
High Court
Gauteng North Division, Pretoria
EM Kubushi J
Keywords:
Persons – Divorce – Rule 43 application – Entitlement to interim maintenance
Mini Summary:
The parties in this matter were involved in divorce proceedings. In the present rule 43 application, the
applicant The applicant has approached the court for relief pending the outcome of the divorce
proceedings.
The respondent raised a point in limine in terms of which he contended that the respondent’s sworn
statement did not comply with the mandatory and imperative requirements of rule 43. According to the
respondent the applicant’s papers were prolix and on that basis alone the application should be dismissed
with costs.
Another point raised by the respondent’s counsel in argument was that the applicant did not disclose her
true financial position and was on that basis not entitled to the relief she sought.
Held that there was no evidence on the papers, which indicated that the applicant was earning any
income. The Court accepted that the applicant was not earning an income and was as such, pending the
outcome of the divorce proceedings, entitled to maintenance by the respondent. However, the amount
claimed by the applicant was exorbitant. The Court therefore ordered the respondent, inter alia, to pay the
applicant R12 000 per month as a contribution to costs, and R50 000 for relocation costs.
29. INTERMEDIARY PROCEDURES
30. JUDICIAL REVIEW
CCT 55-11 C v
DEPARTMENT OF HEALTH AND SOCIAL DEVELOPMENT GAUTENG (CCT 55-11) JUDGMENT (110112).PDF
On Wednesday 11 January 2012 the Constitutional Court gave judgment in a case that required it to
decide whether certain provisions of the Children’s Act that authorise the removal of children in certain
circumstances are consistent with the Constitution. The High Court had held that they were not because
the provisions authorising removal did not say that the removal must be automatically reviewed by a
court in the presence of a parent, care-giver or guardian of the child. The Constitutional Court had to
decide if the High Court declaration should be confirmed.
In a judgment written for the majority of the Constitutional Court, Yacoob J confirmed the declaration of
invalidity. He found that the provisions were aimed at catering for the best interests of children in an
effort to comply with the Constitution. However, the Constitutional Court held that the laws did not
provide sufficient safeguards for circumstances where a social worker or a police officer removed
children wrongly or where the Children’s Court makes an order on incorrect evidence. The provisions
were accordingly found to be inconsistent with the Constitution.
Yacoob J concluded that the appropriate remedy was to read into the provisions a requirement that all
these removals should be automatically reviewed by the Children’s Court shortly after the removals had
taken place.
Writing for the minority, Skweyiya J, with Froneman J concurring, also concluded that the impugned
provisions were unconstitutional and agreed in the majority’s remedy. The minority reasoned, however,
that the impugned provisions of the Children’s Act impacted squarely on the rights of the child and
obliquely on the right of access to courts, which was not absolutely denied in form, but hampered in
substance. South Africa’s international law obligations under the African Charter on the Rights and
Welfare of the Child (ACRWC) and the United Nations Convention on the Rights of the Child (UNCRC)
were also relevant to the inquiry. Unlike in the majority, Skweyiya J and Froneman J do not see the
limitation as the lack of automatic review; but in the removal provisions themselves, as the mere
presence of strict requirements for removal does not mean that a right has not been limited, but that the
limitation is more justifiable.
In a dissenting judgment, Jafta J, with Mogoeng CJ concurring, disagreed with the finding of
constitutional invalidity on the basis that the section on children’s rights in the Constitution does not
refer to automatic review and does not contain the requirement for judicial review or supervision from
the ACRWC and UNCRC. In determining the scope of the right to parental care, the section on children’s
rights in the Constitution cannot be interpreted to include parental care that is harmful or detrimental
to the safety and well-being of a child. It follows that the impugned provisions are consistent with the
Constitution”
31. JURISDICTION
Zwelibanzi Utilities (Pty) Ltd t/a Adams Mission Service Centre v TP Electrical Contractors CC
[2011] JOL 26967 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
160 / 10
25 / 03 / 2011
South Africa
Supreme Court of Appeal
JA Heher, TD Cloete, S Snyders, SA Majiedt JJA, C Plasket AJA
Keywords:
Civil procedure – Magistrate’s Court – Special plea to jurisdiction – Appeal against dismissal of plea –
Section 28 of the Magistrates’ Courts Act 32 of 1944 provides that the persons in respect of whom the
court shall have jurisdiction shall be any defendant who appears and takes no objection to the jurisdiction
of the court – Accords with general principle of the common law, as stated in case law, is that that where
a defendant without having excepted to the jurisdiction, joins issue with a plaintiff in a court which has
material jurisdiction, but has no jurisdiction over the defendant because he resides outside the jurisdiction
of the court, the defendant is deemed to have waived his objection and thereby conferred jurisdiction
upon the court
Mini Summary:
In August 2004, the respondent issued summons against the appellant, claiming the balance of payment
for the installation of electrical services. In June 2005, the appellant pleaded to the merits, and filed a
counter-claim for damages arising from breach of contract. In April 2007, the appellant amended its plea
by the addition of a special plea that the court lacked jurisdiction as the appellant neither resided nor
carried on business within its area of jurisdiction. The respondent pointed out that the appellant had
appeared and taken no objection to the court’s jurisdiction in the proceedings relating to convention and
reconvention.
The magistrate, asked to rule in limine on the special plea, dismissed it. He ruled that the defendant had
acquiesced in the jurisdiction of the court. On appeal the full bench of the High Court dismissed the appeal
with costs and confirmed the magistrate’s ruling. The present appeal was accordingly noted.
Held that section 28 of the Magistrates’ Courts Act 32 of 1944 provides that the persons in respect of
whom the court shall have jurisdiction shall be any defendant (whether in convention or reconvention)
who appears and takes no objection to the jurisdiction of the court. The meaning of the provision was
discussed in the case of William Spilhaus & Co (M.B.) (Pty) Ltd v Marx. In his judgment, Theron J stated
that our courts in general will give effect to the rule of the common law, as it is to be gathered from Voet,
that a defendant who has pleaded to the plaintiff’s main claim without objecting to the jurisdiction must,
at least after litis contestatio has been reached, be considered to have bound himself irrevocably to accept
the jurisdiction of the court –where his failure to raise the question of jurisdiction might have been due to
some mistake on his part.
The general principle of the common law, as stated in case law, is that where a defendant without having
excepted to the jurisdiction, joins issue with a plaintiff in a court which has material jurisdiction, but has
no jurisdiction over the defendant because he resides outside the jurisdiction of the court, the defendant is
deemed to have waived his objection and thereby conferred jurisdiction upon the court. In considering
section 28 of the Magistrate Courts Act against the backdrop of the common law, the present court
pointed to the additional factor of the presumption that the legislature in enacting legislation intends to
depart as little as possible from the common law, and held that section 28(1)(f) contains no indication to
the contrary.
In an effort to get around the above statement of the law, the appellant argued that the respondent did
not oppose the appellant’s amendment by which the special plea was introduced, and the amendment was
accordingly granted by consent. The consequence, it was submitted, was that the respondent was bound
to submit to the trial of the merits of the jurisdictional plea. It was also argued that the effect of the
amendment to the plea was retrospective in operation to the stage of the original plea, preceding the filing
of the counterclaim and, therefore, negating the effects of the apparent reliance upon the jurisdiction of
the court to decide the merits of the claim and counterclaim. The court rejected the arguments. It stated
that the fact that an amendment operates retrospectively is a procedural consequence. It does not affect
accrued rights. Nor can jurisdiction already vested by the appellant’s failure to object to its absence before
litis contestatio be rendered non-existent by subsequent amendment. As the establishing of jurisdiction in
this manner gives rise to an objective fact without the intervention of the plaintiff in the action, the latter’s
inaction in opposing the amendment is of no consequence.
The appeal was accordingly dismissed.
Ravfin 1 (Pty) Ltd v The Dunes Partnership
[2011] JOL 27801 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 739 / 2010
14 / 09 / 2011
South Africa
High Court
Western Cape, Cape Town
PB Fourie J, JI Cloete AJ
Keywords:
Civil procedure – Jurisdiction – Appeal
Mini Summary:
The appellant had instituted action against the respondent in the magistrate's court in respect of various
claims relating to the payment of estate agent's commission. The issue of jurisdiction was contended, and
the parties agreed that it would be dealt with as a special plea.
The evidence and argument centred around whether the court a quo had jurisdiction on the basis that the
respondent was carrying on business within the area of the court’s jurisdiction.
Held that before dealing with the merits of the appeal it was necessary to consider the appellant's two
applications for condonation. The first application related to non-compliance with rule 50(4)(a) as to the
period within which the appellant should have applied for a date for the hearing of the appeal, coupled
with a prayer that the appeal be reinstated. The second application related to non-compliance with rule
50(9) as to the time period within which the appellant should have filed its heads of argument. Our courts
have refrained from attempting to formulate any comprehensive definition of what constitutes good or
sufficient cause for the granting of condonation of procedural shortcomings in appeals. The overriding
consideration is that the matter rests in the judicial discretion of the court, to be exercised with regard to
all the circumstances of the case. The Court formed the view that both applications for condonation should
be granted, but it made an appropriate costs order against the appellant's instructing attorneys as a mark
of its displeasure.
Turning to the merits of the appeal, the court held that jurisdictional requirements are set out in section
28 of the Magistrate's Court Act 32 of 1944.
Having regard to the facts, the Court concluded that at the time when the appellant instituted action
against the respondent, the latter was conducting business within the area of jurisdiction of the court a
quo as envisaged in section 28(1)(a) of the Act. The magistrate was thus wrong in deciding to the
contrary. The appeal was upheld.
32. LEGAL REPRESENTATION JUVENILE
33. LOSS OF SUPPORT
Basdew NO v Minister of Safety & Security
[2011] JOL 28066 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
14271 / 2007
04 / 11 / 2011
South Africa
High Court
KwaZulu-Natal, Durban
Steyn J
Keywords:
Delict – Loss of support – Shooting of claimants’ mother – Claim against police – Negligent omission –
Liability for damages
Mini Summary:
The plaintiff was an adult female advocate, acting as, and suing in her capacity as curator-ad-litem to the
minor children of a woman who was shot and killed by her ex-husband. The deceased was killed at a time
when she sought protection from the South African Police.
The action was for loss of support. At the present stage, the Court was called upon to decide on the issue
of liability only.
Held that the case involved an alleged omission by the police. The critical issue was the wrongfulness of
the omission in circumstances where there was a positive duty on the police officers to act in accordance
with their duties. The Court had to consider the reasonableness of the conduct of the police. It was also
necessary to determine whether there was a factual causation between the police’s omission and the
deceased’s death. The most common test used in determining factual causation is the sine qua non test.
In determining wrongfulness, it was also necessary to consider whether the omission of the officers in not
seizing the firearm of the deceased’s ex-husband would have led to the foreseeable harm, ie the death of
the deceased as caused by him.
There were clear warning signs to the police that the ex-husband of the deceased posed a serious threat
to her physical safety. She was fearful and informed them that her ex-husband was in possession of a
firearm. Under those circumstances it was reasonable to expect that the police officers would have done
more than just putting one question to the ex-husband, ie whether he was in possession of a firearm.
Reasonable policemen would have guarded the husband and not let him out of sight, given the earlier
information relayed to them by the deceased. The failure on that regard rendered the defendant liable for
all such damages as might be proven by the plaintiff.
Jonathan obo Jonathan & another v RAF
[2011] JOL 26955 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
731 / 08
17 / 03 / 2011
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J
Keywords:
Delict – Motor vehicle accidents – Claim for damages – Loss of support
Mini Summary:
The first plaintiff was married until her divorce in 1999. Three children were born of that union. In 2004,
her ex-husband was killed in a motor vehicle accident. The first plaintiff sued on behalf of the youngest
child of the marriage, while the second plaintiff (also born of the marriage) sued in her own capacity,
having attained majority. The claims were for loss of support.
While the defendant fully conceded the merits of the plaintiffs’ claims, the parties were in dispute
regarding the extent of the damages which the plaintiffs were able to prove that they were entitled to
receive in consequence of the death of the deceased.
Held that the claim by a dependant for loss of support has historically been regarded as a right of
property. The deprivation of which, by a wrongful act of a defendant, would found a claim for patrimonial
damages. As patrimonial loss is a sine qua non for any action under the lex Aquilia the action can only
succeed where there has been a legal duty on the deceased to maintain the plaintiff and where he in fact
did so. The right of the dependants of the deceased to receive maintenance and support was not in issue
nor was it disputed that the deceased made such contributions. It was accordingly clear that each of the
plaintiffs had in fact suffered patrimonial damages.
The court found the evidence to clearly establish that the deceased did have the ability to have paid the
maintenance which the plaintiffs claimed that he did pay. Assessing the evidence, the court awarded
R242 261 to the first plaintiff in her representative capacity and R60 441 to the second plaintiff.
34. MAINTENANCE CHILDREN
Haywood v Haywood and another
[2014] JOL 31970 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
5995 / 14; 11887 / 12; 3801 / 12
25 / 06 / 2014
South Africa
High Court
Western Cape, Cape Town
Gamble J
Keywords:
Family law – Divorce settlement – Court order – Maintenance of minor child – Consequence of child
achieving majority age
Mini Summary:
The applicant and first respondent were engaged in divorce litigation. They entered into a settlement
agreement, which was presented to Court for an order in terms thereof to be taken by agreement. In
terms of the agreement the applicant undertook to maintain the parties’ minor son by the payment of
cash in the amount of R7 000 per month to the first respondent, by covering his reasonable medical
expenses and by paying his school fees. The applicant continued to pay the maintenance in respect of his
son up to the beginning of 2014. He then discovered that the first respondent decided to enrol the boy
into a college to able him to improve his Matric grades. The applicant was not happy at not having been
consulted, and obtained advice from his attorney. He was advised that since the boy was then 18, the rule
43 order no longer applied and that the applicant was no longer required to pay maintenance directly to
the first respondent.
Flowing from the applicant’s stance, the first respondent obtained a writ of execution for the attachment of
movables belonging to the applicant, for an amount representing one month’s maintenance, and the
college fees.
In an urgent application, the applicant sought a declaration that the order made pursuant to the
settlement agreement had lapsed due to the applicant’s son having attained majority.
Held that ordinarily, the position is that upon the attainment of majority of the child, the parent in whose
care the child is, no longer has the locus standi to claim payment of maintenance on behalf of the child.
The principles which have been applied in respect of agreements to pay maintenance incorporated into
orders of divorce can usefully be applied to agreements in relation to Rule 43 applications. The Court had
to determine the parties’ intention when they concluded the agreement embodied in the draft order. The
golden rule is to have regard to the language of the written instrument in question, and to give it its
grammatical and ordinary meaning. The Court was satisfied that the parties contemplated continued
payments by the applicant directly to the first respondent after their son’s majority.
MVD v CJVD
[2014] JOL 31273 (KZP)
Case Number:
AR 245 / 13
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
07 / 02 / 2014
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Koen J, Bezuidenhout AJ
Keywords:
Maintenance – Maintenance order – Non-compliance – Application for authorisation of issue of warrant of
execution
Mini Summary:
In January 2013, the maintenance court issued an order directing the respondent to pay maintenance and
incidental expenses in respect of his three minor children. The following month, the appellant applied ex
parte to the maintenance court in terms of sections 26 and 27 of the Maintenance Act 99 of 1998 for
authorisation for the issue of a warrant of execution as the respondent was in arrears with his payments.
When the application was argued before the court a quo, an appeal had already been noted by the
respondent against the maintenance order. The Court refused the application for authorisation for the
issue of a warrant of execution.
Held that the court a quo wrongly concluding that the case before it was one in terms of section 16(2)
which precluded the authorisation of the issue of a warrant of execution in terms of section 26(3)(b) of the
act. The maintenance order in respect of which the authorisation of the issue of a warrant was sought,
was not one for periodical payments contemplated in section 16(2). Therefore, if the order was
appealable, the decision of the court fell to be set aside.
The maintenance order in respect of which the authorisation of the issue of the warrant of execution was
sought, was one contemplated in section16(1)(b) of the act. If aggrieved by such order, the respondent
could appeal such order in terms of section 25(1) of the act, as he had. In terms of section 25(3) of the
act, the effect of noting the appeal was that it would not suspend the payment of maintenance in
accordance with the maintenance order.
The Court confirmed that the refusal of an application for authority to issue a warrant of execution is final
and definitive of the rights of the parties in regard to the authority required for the issue of a warrant of
execution pursuant to the act, and is appealable. Although the appeal succeeded and the refusal of the
authorisation on the grounds relied upon by the magistrate was set aside, this Court was not prepared on
what was contained in the supporting affidavit to grant such authority. The appellant could pursue a fresh
application for such authority in the maintenance court, if so advised, after there had been proper
compliance with the provisions of the act.
35. MAINTENANCE GENERAL
MVD v CJVD
[2014] JOL 31273 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 245 / 13
07 / 02 / 2014
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Koen J, Bezuidenhout AJ
Keywords:
Maintenance – Maintenance order – Non-compliance – Application for authorisation of issue of warrant of
execution
Mini Summary:
In January 2013, the maintenance court issued an order directing the respondent to pay maintenance and
incidental expenses in respect of his three minor children. The following month, the appellant applied ex
parte to the maintenance court in terms of sections 26 and 27 of the Maintenance Act 99 of 1998 for
authorisation for the issue of a warrant of execution as the respondent was in arrears with his payments.
When the application was argued before the court a quo, an appeal had already been noted by the
respondent against the maintenance order. The Court refused the application for authorisation for the
issue of a warrant of execution.
Held that the court a quo wrongly concluding that the case before it was one in terms of section 16(2)
which precluded the authorisation of the issue of a warrant of execution in terms of section 26(3)(b) of the
act. The maintenance order in respect of which the authorisation of the issue of a warrant was sought,
was not one for periodical payments contemplated in section 16(2). Therefore, if the order was
appealable, the decision of the court fell to be set aside.
The maintenance order in respect of which the authorisation of the issue of the warrant of execution was
sought, was one contemplated in section16(1)(b) of the act. If aggrieved by such order, the respondent
could appeal such order in terms of section 25(1) of the act, as he had. In terms of section 25(3) of the
act, the effect of noting the appeal was that it would not suspend the payment of maintenance in
accordance with the maintenance order.
The Court confirmed that the refusal of an application for authority to issue a warrant of execution is final
and definitive of the rights of the parties in regard to the authority required for the issue of a warrant of
execution pursuant to the act, and is appealable. Although the appeal succeeded and the refusal of the
authorisation on the grounds relied upon by the magistrate was set aside, this Court was not prepared on
what was contained in the supporting affidavit to grant such authority. The appellant could pursue a fresh
application for such authority in the maintenance court, if so advised, after there had been proper
compliance with the provisions of the act.
Van der Westhuizen v Van der Westhuizen
[2011] JOL 26942 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
55831 / 08
28 / 03 / 2011
South Africa
High Court
North Gauteng, Pretoria
BR Southwood J
Keywords:
Persons – Marriage – Termination of – Divorce – Maintenance
Mini Summary:
In the present divorce action, the plaintiff sued the defendant for divorce and ancillary relief and the
defendant counterclaimed for divorce and maintenance.
Held that the only issues to be decided were whether the plaintiff was obliged to pay maintenance to the
defendant and, if so, the quantum of such maintenance.
In terms of section 7(2) of the Divorce Act 70 of 1979, the trial court has a wide discretion to determine
the question of maintenance requirements. The court must conclude that in the light of all the relevant
factors it is just for the order to be made. It is clear from the wide discretion which is conferred on the
trial court, that it is not bound to refuse a wife’s claim for maintenance simply because she can support
herself.
The facts showed the plaintiff to be a very wealthy man. Having regard to the respective parties’ financial
needs and obligations, their ages, the duration of their marriage, their standard of living and their conduct
relevant to the breakdown of the marriage, the court considered it just that the plaintiff be ordered to pay
maintenance to the defendant to enable her to enjoy, as far as possible, the same standard of living which
she enjoyed while married to the plaintiff.
The plaintiff was ordered to pay maintenance to the defendant in the amount of R35 000 per month, plus
an immediate payment of R275 601.
Turton v Turton & another
[2012] JOL 28894 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
6566 / 06
02 / 02 / 2012
South Africa
High Court
Western Cape, Cape Town
AG Binns-Ward J
Keywords:
Civil procedure – Maintenance order – Breach of – Writ of execution – Court’s jurisdiction
Mini Summary:
Upon the termination of the parties’ marriage, an order was made for the applicant to pay personal
maintenance of R12 000 per month to the first respondent. The maintenance order also provided for the
annual escalation of the maintenance obligation to accommodate the eroding effect of monetary inflation,
and provided that in the event of the first respondent being paid the sum of at least R3,5 million out of the
proceeds of a fixed property registered in the name of the applicant, which was to be put on the market,
the applicant’s aforementioned maintenance obligation would then fall away.
On falling into arrears with the payment of maintenance, the applicant successfully applied to the
maintenance court for a reduction in the amount payable. However, the arrear payments remained
unpaid, and the first respondent obtained a writ of execution in respect thereof. The execution of the writ
resulted in the attachment of some debentures owned by the applicant. The effect of the writ was
subsequently suspended pending the determination of the current application in which the applicant
sought the setting aside of the writ.
Held that the Maintenance Act expressly deals with the recovery of arrear maintenance by civil execution;
see chapter 5 of the Act. The measures provided in this regard include obtaining a writ of execution, a
garnishee order, or an emoluments attachment order from the maintenance court. The relevant provisions
also allow for an application by the maintenance debtor to the maintenance court for ameliorating relief
should the enforcement remedy chosen by the maintenance creditor be alleged to bear too heavily in the
circumstances. The maintenance court may grant such relief after an enquiry into various matters,
including the existing and prospective means of the maintenance debtor and the needs and obligations of
the maintenance creditor. When it was originally enacted, section 26(1) of the Maintenance Act was an
enabling provision, providing for the civil enforcement of a maintenance order made in the maintenance
court. The remedies and procedures provided for civil enforcement in terms of chapter 5 of the Act were
the only remedies available. An amendment to section 26(1) brought maintenance orders made by the
high courts within the embrace of section 26, as prior to its amendment, the provision had pertained only
to maintenance orders made by the maintenance courts. The question was what the legislature’s intention
was when it amended section 26(1) to make high court maintenance orders susceptible to chapter 5. High
court maintenance orders had always been civilly enforceable by writ of execution, and thus the necessity
for them to be brought within the embrace of chapter 5 of the Act did not exist. Chapter 5 of the
Maintenance Act is intended to comprehensively regulate the civil enforcement of maintenance orders
made by any court in South Africa.
The Court concluded that the writ of execution obtained from the registrar of the high court had to be set
aside. The first respondent was obliged to follow the procedures set out in chapter 5 of the Maintenance
Act to obtain civil execution against the applicant.
Regarding an alleged compromise agreement, the Court found that the applicant had failed to establish
such agreement.
Jonathan obo Jonathan & another v RAF
[2011] JOL 26955 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
731 / 08
17 / 03 / 2011
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J
Keywords:
Delict – Motor vehicle accidents – Claim for damages – Loss of support
Mini Summary:
The first plaintiff was married until her divorce in 1999. Three children were born of that union. In 2004,
her ex-husband was killed in a motor vehicle accident. The first plaintiff sued on behalf of the youngest
child of the marriage, while the second plaintiff (also born of the marriage) sued in her own capacity,
having attained majority. The claims were for loss of support.
While the defendant fully conceded the merits of the plaintiffs’ claims, the parties were in dispute
regarding the extent of the damages which the plaintiffs were able to prove that they were entitled to
receive in consequence of the death of the deceased.
Held that the claim by a dependant for loss of support has historically been regarded as a right of
property. The deprivation of which, by a wrongful act of a defendant, would found a claim for patrimonial
damages. As patrimonial loss is a sine qua non for any action under the lex Aquilia the action can only
succeed where there has been a legal duty on the deceased to maintain the plaintiff and where he in fact
did so. The right of the dependants of the deceased to receive maintenance and support was not in issue
nor was it disputed that the deceased made such contributions. It was accordingly clear that each of the
plaintiffs had in fact suffered patrimonial damages.
The court found the evidence to clearly establish that the deceased did have the ability to have paid the
maintenance which the plaintiffs claimed that he did pay. Assessing the evidence, the court awarded
R242 261 to the first plaintiff in her representative capacity and R60 441 to the second plaintiff.
Mbhele v Mbhele & others
[2010] JOL 25651 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 118 / 10
03 / 06 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
K Pillay, P Koen and K Swain JJ
Keywords:
Maintenance – Maintenance of major – Need for curator bonis
Mini Summary:
In 2003, the Maintenance Court granted an order by consent directing the first respondent to pay
maintenance for his minor child. The applicant was the child's guardian. In 2008, the applicant obtained a
rule nisi preventing the second respondent (a bank) from paying out any pension benefit to the first
respondent. In terms of the rule nisi the bank was called upon to show cause why it should not be ordered
to determine the net amount owing to the first respondent and to pay the said amount to the Master of
the High Court, to be held in the Guardian's Fund, for the future maintenance of the first respondent's son
who was disabled.
On the return date, the magistrate discharged the rule and granted an order in terms of which the first
respondent was interdicted from using the sum of R50 000 for his benefit. He was ordered to pay that
amount to the master, to be held in trust in the Guardian's Fund and payment thereof to be made to the
child in accordance with any order of the Maintenance Court or any competent court. As the child was a
major by the time the application was heard, the master refused to accept a cheque from the bank for
payment into the Guardian's Fund. The cheque was paid into the trust account at the Magistrates' Court,
but the Area Court Manager then advised that the Department of Justice had no accounting system that
allows for the receipt of lump sums of money, to be dispensed monthly to third parties.
The magistrate sought to refer the problem to the high court, by way of a special review, to resolve the
issue of how provision could be made for the retention of money in a fund, and the periodical payments
therefrom, to provide for the maintenance of a major.
Held that the solution to the impasse lay in the common law, rendering it unnecessary and inappropriate
to decide whether the Guardian's Fund was the appropriate, or permissible, receptacle for the receipt of
monies to provide for the needs of a major, who is in need of maintenance.
A major child who is incapable of supporting himself, is entitled to support from a parent who is able to do
so. If such a major is incapable of managing his affairs, a curator bonis can be appointed to administer
such affairs and provide the necessary maintenance from funds made available to the curator. The
applicant was advised to launch an application in the appropriate forum for the appointment of herself, or
a suitable person, as a curator bonis to the child if the evidence revealed that he was unable to administer
his own affairs.
Staats (born Coetzer) v Staats
[2010] JOL 25912 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
EL 276 / 10
19 / 08 / 2010
South Africa
High Court
East London Circuit Local
SD Ndengezi AJ
Keywords:
Marriage – Divorce – Maintenance
Mini Summary:
The parties were married to each other after the commencement of the Matrimonial Property Act 88 of
1984 in terms of a duly registered antenuptial contract wherein community of property, profit and loss
was excluded. The marriage had broken down.
In the present rule 43 application, the applicant sought an order that the respondent pay maintenance
pendente lite for the couple's minor child, to retain the applicant and the minor child as beneficiaries of
the respondent's Medical Aid Scheme and pay the contributions in respect thereof as well as anything not
covered by the respondent's Medical Aid, to pay pendente lite for the school fees of the minor child and for
all other reasonable expense related to her schooling, including but not limited to, extramural equipment
and extramural costs and clothes, to pay pendente lite the costs of the minor child's casual clothing and to
contribute towards the applicant's costs.
Held that the applicant failed to prove on a balance of probability that she need assistance towards costs
in this matter, taking into account her income and what would be reasonable expenses.
The court granted an order that the parties be joint caregivers of the minor child whose place of primary /
physical residence would vest jointly with the parties; that the respondent pay the school fees, cost of
school books and cost of school uniforms; that the respondent retain the applicant and the minor child as
beneficiaries in his Medical Aid Scheme; that the applicant pay for the minor child's hair-do's, casual
clothing and pocket money; and that each party pay their own costs.
36. MAINTENANCE PENDENTE LITE
Staats (born Coetzer) v Staats
[2010] JOL 25912 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
EL 276 / 10
19 / 08 / 2010
South Africa
High Court
East London Circuit Local
SD Ndengezi AJ
Keywords:
Marriage – Divorce – Maintenance
Mini Summary:
The parties were married to each other after the commencement of the Matrimonial Property Act 88 of
1984 in terms of a duly registered antenuptial contract wherein community of property, profit and loss
was excluded. The marriage had broken down.
In the present rule 43 application, the applicant sought an order that the respondent pay maintenance
pendente lite for the couple's minor child, to retain the applicant and the minor child as beneficiaries of
the respondent's Medical Aid Scheme and pay the contributions in respect thereof as well as anything not
covered by the respondent's Medical Aid, to pay pendente lite for the school fees of the minor child and for
all other reasonable expense related to her schooling, including but not limited to, extramural equipment
and extramural costs and clothes, to pay pendente lite the costs of the minor child's casual clothing and to
contribute towards the applicant's costs.
Held that the applicant failed to prove on a balance of probability that she need assistance towards costs
in this matter, taking into account her income and what would be reasonable expenses.
The court granted an order that the parties be joint caregivers of the minor child whose place of primary /
physical residence would vest jointly with the parties; that the respondent pay the school fees, cost of
school books and cost of school uniforms; that the respondent retain the applicant and the minor child as
beneficiaries in his Medical Aid Scheme; that the applicant pay for the minor child's hair-do's, casual
clothing and pocket money; and that each party pay their own costs.
AEP v HASP
[2012] JOL 29209 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
52040 / 2010
23 / 09 / 2011
South Africa
High Court
North Gauteng, Pretoria
G Webster J
Keywords:
Divorce – Maintenance pendent lite – Assessment of financial status of parties
Mini Summary:
In an application in terms of Rule 43 of the Uniform Rules of Court, the applicant sought maintenance
pendente lite in respect of herself and three minor children.
Held that the Rule 43 procedure is a robust procedure to ensure that a dependent spouse and dependent
children of a marriage are provided for as a matter of urgency. The Court found that the respondent’s
statement of his income, in the absence of documentary proof, was not a full disclosure. Taking into
account the financial status and necessary expenses of the parties, the Court held that the monthly
maintenance and support had to be shared proportionately by the parties. The proportion in which that
had to be done was set out by the Court, and an order was made directing the respondent to make
payment as set out by the Court.
37. MAINTENANCE SPOUSE
Staats (born Coetzer) v Staats
[2010] JOL 25912 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
EL 276 / 10
19 / 08 / 2010
South Africa
High Court
East London Circuit Local
SD Ndengezi AJ
Keywords:
Marriage – Divorce – Maintenance
Mini Summary:
The parties were married to each other after the commencement of the Matrimonial Property Act 88 of
1984 in terms of a duly registered antenuptial contract wherein community of property, profit and loss
was excluded. The marriage had broken down.
In the present rule 43 application, the applicant sought an order that the respondent pay maintenance
pendente lite for the couple's minor child, to retain the applicant and the minor child as beneficiaries of
the respondent's Medical Aid Scheme and pay the contributions in respect thereof as well as anything not
covered by the respondent's Medical Aid, to pay pendente lite for the school fees of the minor child and for
all other reasonable expense related to her schooling, including but not limited to, extramural equipment
and extramural costs and clothes, to pay pendente lite the costs of the minor child's casual clothing and to
contribute towards the applicant's costs.
Held that the applicant failed to prove on a balance of probability that she need assistance towards costs
in this matter, taking into account her income and what would be reasonable expenses.
The court granted an order that the parties be joint caregivers of the minor child whose place of primary /
physical residence would vest jointly with the parties; that the respondent pay the school fees, cost of
school books and cost of school uniforms; that the respondent retain the applicant and the minor child as
beneficiaries in his Medical Aid Scheme; that the applicant pay for the minor child's hair-do's, casual
clothing and pocket money; and that each party pay their own costs.
38. MARRIAGES
Murabi v Murabi and others
[2014] JOL 31715 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
893 / 12
01 / 04 / 2014
South Africa
Supreme Court of Appeal
KK Mthiyane DP, XM Petse, H Saldulker JJA, Van Zyl, MF Legodi AJJA
Keywords:
Persons – Marriage – Proof of – Certificate of registration issued providing prima facie proof of existence of
customary marriage, and in absence of countervailing evidence, had to be accepted as conclusive proof of
such marriage – Persons – Marriage – Validity – Whether civil marriage entered into during of customary
marriage to another person could be recognised as valid – Marriage and Matrimonial Property Law
Amendment Act 3 of 1988 prevents any person who is a partner in a customary union to contract a
marriage with another person during the subsistence of that union – Words and phrases – “Conclusive” –
Suggesting that the condition or state it qualifies brings something to a conclusion, but does not mean
that the conclusion in question must in all circumstances be unimpeachable or unassailable – A statutory
provision that a document constitutes “conclusive proof” of a state of affairs cannot immunise the
document from attack on the basis that it was procured fraudulently
Mini Summary:
Instituting proceedings in the High Court, the appellant sought an order against the respondents, that the
civil marriage contracted between the first respondent and the deceased on 2 August 1995 be declared
null and void ab initio; and that the customary marriage concluded between the appellant and the
deceased on 1 November 1979 be declared valid. She alleged that she and the deceased had entered into
a customary marriage in 1975, which marriage was registered in 1991. When the deceased died in 2011,
the appellant attended at the offices of the third respondent, to report the death as contemplated in
section 7(1)(a) of the Administration of Estates Act 66 of 1965. There she discovered that the death had
already been reported by the first respondent and that the first respondent had been appointed as the
executrix of the deceased’s estate.
While the appellant catered for the possibility that the first respondent might be the second wife of the
deceased keeping with Venda customary law and tradition, the first respondent disputed that the appellant
had ever married the deceased.
The appellant later did an about-turn, admitting in her replying affidavit and supplementary replying
affidavit that when the deceased married the first respondent she was still married to a third party. The
appellant further admitted that she had an extra-marital liaison with the deceased whilst the latter was
married to the first respondent. In June 2012, the parties concluded a settlement agreement in terms of
which the issues in dispute were circumscribed. The parties agreed that the appellant concluded a
customary marriage with the deceased in 1979, the validity of which remained in dispute. The court a quo
found that the appellant failed to establish the existence of the customary union asserted by her and
dismissed her application with costs. The Court also declared the first respondent the only surviving
spouse of the deceased. Leave to appeal to the present Court was granted.
The appellant’s argument on appeal was that the existence of her customary marriage was borne out by
the certificate of its registration issued to her in 1991, which constituted conclusive proof of such
marriage. Accordingly, so it was contended, such conclusive proof could only be rendered invalid if there
was countervailing evidence to show that it was obtained by fraud, whether by the holder or any other
person.
Held that the assertion by the appellant that the certificate of registration issued to her in 1991
constituted, in the absence of countervailing evidence, conclusive proof of such marriage, was supported
by case law. The intrinsic meaning of “conclusive” does not detract from the fact that no document is
unassailable. The word “conclusive” suggests that the condition or state it qualifies brings something to a
conclusion. It does not mean that the conclusion in question must in all circumstances be unimpeachable
or unassailable. In principle, therefore, a statutory provision that a document constitutes “conclusive
proof” of a state of affairs cannot immunise the document from attack on the basis that it was procured
fraudulently. As no countervailing evidence was presented by the first respondent, the registration
certificate issued to the appellant in 1991 constituted, at the very least, prima facie proof of the existence
of the appellant’s marriage.
The above conclusion led to the question of whether the civil marriage of the first respondent contracted
on 2 August 1995 could then survive. The Marriage and Matrimonial Property Law Amendment Act 3 of
1988, which came into effect on
2 December 1988, prevents any person who is a partner in a customary union to contract a marriage with
another person during the subsistence of that union. Therefore, the marriage of the first respondent to the
deceased contracted on 2 August 1995 could not be recognised as valid. It was not legally competent for
the deceased to contract a civil marriage with the first respondent during the subsistence of the customary
marriage between the deceased and the appellant. The effect of that conclusion is that both the appellant
and the first respondent were the deceased’s surviving spouses in terms of customary law.
The appeal was upheld with costs. The order of the High Court was replaced with one in terms of which
the customary marriage between the appellant and the deceased was declared valid, and the civil
marriage between the first respondent and the deceased was declared null and void.
Maloba v Dube & others
[2010] JOL 25852 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
08 / 3077
23 / 06 / 2008
South Africa
High Court
South Gauteng, Johannesburg
Mokgoatlheng J
Keywords:
Customary law – Marriage – Validity
Mini Summary:
The applicant sought a declaration that her late husband ("the deceased") was never married to the first
respondent in accordance with customary law or the Recognition of Customary law Marriages Act 120 of
1998, and that the certificate of registration of the customary marriage issued by the Department of Home
Affairs was invalid.
Essentially, the applicant averred that the posthumous registration of the customary marriage between
the first respondent the deceased was not valid, as no customary marriage in accordance with customary
law was ever concluded.
According to the applicant, after lobolo negotiations between the deceased's family and the first
respondent's family, the deceased informed his mother that he no longer wished to marry the first
respondent, and his family formally informed the first respondent's family that a marriage would not be
concluded.
Held that it was clear that lobolo was agreed upon by the deceased and the first respondent's family. The
question was whether or not the marriage was entered into or celebrated in accordance with customary
law. The objective facts showed that the marriage was negotiated and entered into in accordance with
customary law. A customary marriage can only be dissolved by a competent court. When the deceased or
his family purported to withdraw his consent to the customary marriage, after the payment of lobolo or
part payment thereof, a valid customary marriage had already come into being. The purported withdrawal
of consent would have been a nullity and would not have lawfully dissolved the customary marriage.
The application was dismissed with costs
Ngwenyama v Mayelane & another
[2012] JOL 28945 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
474 / 2011
01 / 06 / 2012
South Africa
Supreme Court of Appeal
KK Mthiyane DP, VM Ponnan JA, Ndita AJA
Keywords:
Customary law – Polygamous marriages – Whether failure by husband entering second marriage to
comply with section 7(6) of Recognition of Customary Marriages Act 120 of 1998 results in second
marriage being null and void ab initio – Purposive interpretation of section 7(6) leading to conclusion that
it was not intended that non-compliance should clothe a second marriage with invalidity – Interpretation
of statutes – Requirements of Constitution – Section 39(2) of the Constitution provides that, “When
interpreting any legislation, and when developing the common law or customary law, every court, tribunal
or forum must promote the spirit, purport and objects of the Bill of Rights” – Interpretation of statutes –
Primary rule in the construction of a statutory provision is to ascertain the intention of the legislature by
giving words of the provision under consideration the ordinary grammatical meaning which their context
dictates, unless to do so would lead to an absurdity the legislature could not have contemplated – Whilst
words must be given their ordinary meaning, a contextual and purposive reading of the statute is also
important
Mini Summary:
MM v MN & another 2010 (4) SA 286 (GNP) – Referred to
Hassam v Jacobs NO & others 2009 (5) SA 572 (CC) – Referred to
Gumede v President of the Republic of South Africa & others 2009 (3) SA 152 (CC) – Referred to
Brink v Kitshoff NO 1996 (4) SA 197 (CC) – Referred to
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & others 2004 (4) SA 490 (CC) – Approved
Investigating Directorate: Serious Economic Offences & others v Hyundai Motor Distributors (Pty) Ltd &
others; In re Hyundai Motor Distributors (Pty) Ltd & others v Smit NO & others 2001 (1) SA 545 (CC) –
Referred to
Standard Bank Investment Corporation Ltd v Competition Commission & others; Liberty Life Association of
Africa Ltd v Competition Commission & others 2000 (2) SA 797 (SCA) – Referred to
MG v BM & others 2012 (2) SA 253 (GSJ) – Approved
Mrapukana v Master of the High Court & another [2008] JOL 22875 (C) – Referred to
Biowatch Trust v Registrar, Genetic Resources & others 2009 (6) SA 232 (CC) – Referred to
Phumelela Gaming and Leisure Ltd v Grünlingh and others 2007 (6) SA 350 (CC) – Referred to
In January 1984, the first respondent (forthwith referred to as “the respondent”) was married according to
customary law. The marriage was never registered, and three children were born of the union. When her
husband (“the deceased”) died in February 2004, the respondent attempted to register the customary
union at the Department of Home Affairs. She then discovered that the appellant had also sought to
register a customary marriage allegedly contracted between her and the deceased on 26 January 2008.
The respondent challenged the validity of the appellant’s purported marriage to the deceased, on the basis
that the deceased had failed to comply with section 7(6) the Recognition of Customary Marriages Act 120
of 1998 which provides that a husband in a customary marriage who wishes to enter into a further
customary marriage with another woman must apply to the court to approve a written contract governing
the proprietary consequences of the marriages.
Instituting proceedings in the high court, the respondent applied for a declaration that the customary
marriage contracted between the appellant and the deceased was null and void ab initio. An order was
also sought directing the second respondent to register the customary marriage between the respondent
and the deceased. The granting of the relief sought led to the present appeal.
The high court considered the equal status and capacity afforded to spouses in a customary marriage and
concluded that section 7(6) is aimed at protecting the proprietary interests of both the existing and
prospective spouse. The Court emphasised the prejudice likely to be suffered by the existing spouse where
the second marriage has not been disclosed.
The appellant’s contention on appeal was that the provisions of section 7(6) were not peremptory.
Held that the core issue on appeal turned on whether the failure by the deceased to make an application
to court to approve a written contract regulating the matrimonial property system of both the first and
second marriages, as envisaged in section 7(6) of the Act, invalidated the subsequent customary
marriages from inception, in the absence of an express provision in the Act to that effect. It was common
cause that the marriage contracted between the appellant and the deceased was not preceded by an
application for an order approving a contract regulating the future matrimonial system of both marriages.
Section 7(6) is intended to protect matrimonial property rights of the spouses by ensuring a fair
distribution of the matrimonial property in circumstances where a husband is desirous of entering into a
further customary marriage. While the section uses the peremptory word “must” in requiring a husband to
apply to court prior to a second marriage, no sanction for the failure to comply with the section exists. The
court a quo concluded that the use of the word “must” indicates that the legislature intended noncompliance with section 7(6) to invalidate a subsequent customary marriage. The primary rule in the
construction of a statutory provision is to ascertain the intention of the legislature by giving words of the
provision under consideration the ordinary grammatical meaning which their context dictates, unless to do
so would lead to an absurdity the legislature could not have contemplated. Whilst words must be given
their ordinary meaning a contextual and purposive reading of the statute is also important. This is more so
in the circumstances of the instant matter, where it was alleged that the interpretation accorded by the
court below offended some of the rights enshrined in the Constitution. The court held that the object of
the Act could best be achieved by giving effect to section 39(2) of the Constitution which provides that,
“When interpreting any legislation, and when developing the common law or customary law, every court,
tribunal or forum must promote the spirit, purport and objects of the Bill of Rights”.
The purpose of the section must be determined in the light of the legislative scheme which guided its
promulgation. The Act aims to advance the rights of women married according customary law in order
that they acquire rights to matrimonial property they did not have before the enactment of the Act. In that
context, it is unlikely that section 7(6) could be intended solely for the protection of the wife in an existing
marriage. Properly construed section 7(6) is for the benefit women in both monogamous and polygamous
customary marriages, and therefore whatever protection is afforded to women married according to
customary law equally applies to women in polygamous marriages.
The duty to act in compliance with section 7(6) is placed on the husband. It would be unjust to invalidate
an otherwise valid marriage on the basis of the husband’s failure when no duty was placed on the wife.
The appeal was partially successful, with the high court’s order being replaced by one in terms of which
the respondent’s application for a declaration that the customary marriage contracted between the
appellant and the deceased was null and void ab initio was dismissed. The respondent’s application for the
registration of her marriage to the deceased was granted.
39. PARENTAL CONSENT
CM v NG
[2012] JOL 28836 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
8026 / 2011
26 / 04 / 2012
South Africa
High Court
Western Cape, Cape Town
Gangen AJ
Keywords:
Persons – Children – Parental rights – Care and contact – Guardianship – Same-sex parents
Mini Summary:
The parties herein had been involved in a same-sex relationship, but never registered a marriage. The
relationship led to a child being born, by artificial insemination of the respondent. The latter was therefore
the child’s biological mother. The relationship ended in November 2010.
In an application in terms of sections 23 and 24 of the Children’s Act 38 of 2005, the applicant sought an
order granting her full parental rights and responsibilities in respect of the child.
Opposing the application, the respondent alleged that the decision to have a child was hers alone, and
that the applicant had been involved only because of her relationship with the respondent.
Held that the evidence adduced in Court ran counter to the respondent’s assertions that the child was
intended to be hers alone. The Court found that the child had regarded both parties as parents, and that
the applicant should be treated as such.
Turning to the relief sought, the Court identified the two questions for determination as being whether an
interested person applying in terms of section 23 is entitled to an order for both care and contact, and
secondly, whether an interested person applying in terms of section 24 for guardianship is only entitled
thereto if the party can show that the existing guardian is not suitable, having regard to section 24(3).
Both care and contact are components of parental rights and responsibilities. The concept of care goes
beyond the traditional concept of custody. The Court found that an interested person applying in terms of
section 23 is entitled to an order for both care and contact.
Section 24(3) would only apply where exclusive guardianship rights were being applied for.
In each case, the best interests of the child will be of paramount importance. The Court concluded that
both parties should be co-holders of parental rights and responsibilities in respect of the child, and that
they should be co-guardians
40. PARENTAL RIGHTS AND DUTIES
KLVC v SDI and another
[2015] JOL 32761 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
20334 / 2014
12 / 12 / 2014
South Africa
Supreme Court of Appeal
BH Mbha, MML Maya, LE Leach, LV Theron JJA, Schoeman AJA
Keywords:
Family law – Parent and child – Unmarried fathers – Rights of – Acquisition of full parental responsibilities
and rights of an unmarried father – Requirements set out in section 21(1)(b)(i) to (iii) of the Children’s
Act 38 of 2005 – Where father had met all the requirements prescribed in section 21(1)(b)(i) to (iii) of the
Children’s Act 38 of 2005 and therefore had acquired full parental rights and responsibilities in respect of
the child, it was necessary for the mother to have obtained the father’s consent prior to applying for a
passport for the child’s removal from South Africa RRS v DAL (22994/2010) [2010] ZAWCHC 618 (10
December 2010) – Referred to Fraser v Children’s Court, Pretoria North 1997 (2) BCLR 153 (1997 (2) SA
261) (CC) – Referred to
Mini Summary:
A minor child was at the centre of the present dispute. The appellant and first respondent were parents of
the child, and although they were never married to each other, nor did they cohabit or live together in a
permanent life partnership, the first respondent had at all material times consented to being identified as
the child’s father. In November 2012, while the first respondent was on a brief visit overseas, the
appellant removed the child from Durban and relocated to England without either informing or seeking
permission from the first respondent to do so.
In terms of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 (the Hague
Convention), the first respondent applied to the High Court of Justice, Family Division of the United
Kingdom (the English court) for an order directing the appellant to return the child to his habitual place of
residence in Durban, South Africa. The basis of the application was that the appellant had removed the
child from South Africa to England in breach of the first respondent’s co-parental rights and responsibilities
by not seeking the first respondent’s approval before doing so. The fundamental question for resolution
before the English court was whether the appellant’s removal of the child from South Africa without the
first respondent’s approval was wrongful. That entailed a consideration of whether the removal of the child
was wrongful because it was in breach of the rights of custody of the father under the law of South Africa
immediately before the removal of the child, and whether the relevant rights of custody were actually
being exercised at the time of the child’s removal.
Unable to decide the question, the English court made an order referring to a South African court for
determination, the question of whether in November 2012, it was lawful under South African law having
regard to the circumstances of this case, for the appellant to change the place of residence of the child
from a place in South Africa to a place in England and Wales without the prior permission or consent of
the first respondent or a South African court.
The court a quo ruled in the first respondent’s favour, finding that in November 2012, the father had met
all the requirements prescribed in section 21(1)(b)(i) to (iii) of the Children’s Act 38 of 2005 and therefore
had acquired full parental rights and responsibilities in respect of the child. Accordingly, it was necessary
for the appellant to have obtained the first respondent’s consent prior to applying for a passport for the
child’s removal from South Africa.
The appellant appealed against that finding.
Held that section 21(1)(b) provides for the acquisition of full parental responsibilities and rights of an
unmarried father if he consents to being identified as the child’s father; 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 towards expenses in connection with the maintenance of the child for a
reasonable period.
Determining whether or not an unmarried father has met the requirements in section 21(1)(b) is an
entirely factual enquiry. It is a type of matter which can only be disposed of on a consideration of all the
relevant factual circumstances of the case. It was unnecessary to rule on whether the requirements set
out in section 21(1)(b) ought to be determined conjunctively or whether they were simply categories of
facts which a court must consider before concluding whether an unmarried father has acquired full
parental responsibilities and rights in respect of a minor child or not.
Much of the debate before the Court related to whether the first respondent had contributed adequately or
at all, or had attempted in good faith to contribute over a reasonable period, towards the upbringing or
expenses in connection with the maintenance of the child. The Court considered the meaning that was
intended by the legislature in including phrases or words such as “contribute(s)” and “for a reasonable
period” in the section. What needs to be determined is the nature and extent of the contribution required
for the child’s upbringing and for expenses in respect of the child in order for an unmarried father to
acquire full parental responsibilities and rights. The Court was of the view that the legislature was
deliberately not prescriptive in defining that nature of the required contribution. Based on the evidence
adduced, the Court agreed with the court a quo that the first respondent had indeed met what was
required by section 21(1)(b)(ii). The first respondent demonstrated sufficiently that he had acquired full
parental responsibilities in respect of the child by November 2012. As co-guardian, his consent was
therefore required prior to the removal of the child from South Africa by the appellant.
M v V(born N)
[2011] JOL 27045 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2901 / 10
23 / 11 / 2010
South Africa
High Court
Western Cape, Cape Town
JI Cloete AJ
Keywords:
Persons – Children – Rights of unmarried father – Parental rights
Mini Summary:
The applicant sought an order directing that he and the respondent be recognised as co-holders of
parental responsibilities and rights in respect of their minor child. The relief sought by the applicant
included rights of co-guardianship as provided for in sections 18(2)(c), 18(3), 18(4) and 18(5) of the
Children's Act 38 of 2005 ("the Act"), as also rights of care and contact as referred to in section 18(2)(a)
and (b) of the Act.
The parties agreed that the following issues would be argued (and thus determined) in limine, on the basis
of the legal objection of an exception: whether the respondent was entitled to rely on the exclusionary
provision in regard to the definition of a parent in section 1 of the Act; in the event that the court declared
that the applicant was a parent with full parental rights and responsibilities, whether the respondent could
be compelled to enter into a parenting plan with the applicant in respect of the child; in the event that the
court ruled that the respondent was entitled to rely on the exclusionary provision as referred to above,
which party bore the onus to prove or disprove the respondent's allegation that she was raped by the
applicant.
It was common cause between the parties that, but for the question of the alleged rape, the applicant
would have acquired parental responsibilities and rights in terms of section 21 of the Act.
Held that the evidence showed that for almost 10 years the respondent treated and regarded the
applicant as the child’s father in every sense, and chose to recognise his rights and obligations in terms of
section 21. It was only in February 2010 that respondent, for the first time, challenged the applicant's
rights and responsibilities on the ground of an alleged rape at the time of conception. Significantly, for the
duration of his life, the child had treated and regarded the applicant as his father in every conceivable
way. The court concluded that it could not be in the child’s best interests (which were of paramount
importance) to exclude the applicant from the provisions of section 21 of the Act.
The court then held that the respondent could be compelled to enter into a parenting plan with the
applicant in respect of the child.
CM v NG
[2012] JOL 28836 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
8026 / 2011
26 / 04 / 2012
South Africa
High Court
Western Cape, Cape Town
Gangen AJ
Keywords:
Persons – Children – Parental rights – Care and contact – Guardianship – Same-sex parents
Mini Summary:
The parties herein had been involved in a same-sex relationship, but never registered a marriage. The
relationship led to a child being born, by artificial insemination of the respondent. The latter was therefore
the child’s biological mother. The relationship ended in November 2010.
In an application in terms of sections 23 and 24 of the Children’s Act 38 of 2005, the applicant sought an
order granting her full parental rights and responsibilities in respect of the child.
Opposing the application, the respondent alleged that the decision to have a child was hers alone, and
that the applicant had been involved only because of her relationship with the respondent.
Held that the evidence adduced in Court ran counter to the respondent’s assertions that the child was
intended to be hers alone. The Court found that the child had regarded both parties as parents, and that
the applicant should be treated as such.
Turning to the relief sought, the Court identified the two questions for determination as being whether an
interested person applying in terms of section 23 is entitled to an order for both care and contact, and
secondly, whether an interested person applying in terms of section 24 for guardianship is only entitled
thereto if the party can show that the existing guardian is not suitable, having regard to section 24(3).
Both care and contact are components of parental rights and responsibilities. The concept of care goes
beyond the traditional concept of custody. The Court found that an interested person applying in terms of
section 23 is entitled to an order for both care and contact.
Section 24(3) would only apply where exclusive guardianship rights were being applied for.
In each case, the best interests of the child will be of paramount importance. The Court concluded that
both parties should be co-holders of parental rights and responsibilities in respect of the child, and that
they should be co-guardians
41. PENSION FUNDS
De Beer v Tshwane Municipal Provident Fund
[2011] JOL 28025 (PFA)
Case Number:
PFA / GA / 20332 / 2007 / TD
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
18 / 08 / 2011
South Africa
Tribunal of the Pension Funds Adjudicator
Johannesburg
Dr EM De la Rey
Keywords:
Pensions – Divorce – Amendment to section 37D of the Pension Funds Act 24 of 1956, so as to accelerate
the date of accrual of the benefit to the member spouse and in turn the date on which the divorce benefit
accrues to the non-member spouse which is the date of divorce – Financial Services Laws General
Amendment Act 22 of 2008 makes new section 37D retrospective in application
Mini Summary:
The complainant and her husband were divorced in 2006. The divorce order stipulated that the
complainant would be entitled to half of her spouse’s pension interest as at date of divorce. When the
complainant requested payment, the respondent refused to accede to the request on the basis that the
Pension Funds Amendment Act 11 of 2007, which came into operation on 13 September 2007, does not
refer to any divorce orders granted before that date nor does it state that it applies retrospectively to any
divorce orders prior to 13 September 2007.
Held that the issue for determination was whether or not the respondent’s refusal to pay the complainant
her 50% portion of pension interest was reasonable and justifiable in terms of the Act, read together with
the Divorce Act 70 of 1979.
Since the issuing of the complainant’s divorce order, the law had changed. In terms of section 7(8)(a)(i)
of the Divorce Act, a court granting a decree of divorce may make an order that the share of the pension
interest allocated to the non-member spouse be paid by the fund to such spouse when any pension
benefits accrue in respect of the member spouse which can either be on retirement, resignation,
retrenchment or dismissal. As that undermined the clean-break principle, the Pension Funds Amendment
Act sought to address the problem by amending section 37D of the Pension Funds Act 24 of 1956. The
new section 37D(1)(e) accelerates the date of accrual of the benefit to the member spouse and in turn the
date on which the divorce benefit accrues to the non-member spouse which is the date of divorce.
To deal with the issue of retrospectivity, section 37D(4)(d) of the Financial Services Laws General
Amendment Act 22 of 2008 states that any portion of the pension interest that is payable to a nonmember spouse that was granted prior to 13 September 2007 is deemed to have accrued to the nonmember spouse on 13 September 2007. Section 37D(4)(a), in turn states that the pension interest that is
assigned to the non-member spouse is deemed to accrue to the member spouse on the date on which the
divorce order was granted. The amended section 37D of the Pension Funds Act applies to divorce orders
granted prior to 13 September 2007 and the mere fact that the date of accrual of the benefit to the
member spouse is accelerated does not mean that the Amendment Act applies retrospectively. The
respondent’s submission that it could not apply the Pension Funds Amendment Act as if it applied
retrospectively could not be sustained, and its decision to refuse the complainant’s request for payment
was set aside.
Stow & another v SA Post office Ltd & another
[2010] JOL 25920 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1694 / 08
25 / 05 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
F Kroon J
Keywords:
Pension funds – Disability benefits – Computation of – Applicable fund rule
Mini Summary:
The plaintiffs used to be employed by the first defendant. In 2002, their services were terminated on
grounds of ill health. At all material times they were members of the second defendant, a pension fund.
The fund’s rules set out the benefits payable to members such as the plaintiffs. Where the member had
become disabled as a result of an injury arising in the course of his employment, he would retire with
increased benefits.
Both plaintiffs had, on separate occasions, been held up in armed robberies whilst at work. The
psychological trauma suffered by each of them as a result, led to their respective retirements. Each of
them instituted action, claiming a declaratory order that he r she was entitled to the enhanced benefits
referred to in the preceding paragraph. However, the defendants did not agree with that, and calculated
the disability payments in terms of another provision of the fund’s rules. The fund's board of trustees
delegated its power to decide whether the plaintiffs were disabled to the first respondent's general
manager of human resources.
In a special stated case, the plaintiffs sought a ruling by the court on which provision of the fund's rules
applied to the computation of their disability benefits.
Held that while the general manager had found that the plaintiffs were disabled as defined in the fund's
rules, he did not find that the disability was the result of an injury arising out of and in the course of the
plaintiffs' employment. The court could not sanction the general manager's conclusions. It was clear to the
court that the disability of the plaintiffs was post-traumatic stress disorder which was a direct result of the
armed robbery at their workplaces. The medical reports handed into evidence confirmed that. Therefore,
the general manager's conclusion to the contrary amounted to an unreasonable exercise of his discretion.
The court issued a declaratory order confirming the plaintiffs' averments.
Hamnca v Alexander Forbes Core Plan (Provident Section) & others
[2011] JOL 28026 (PFA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
PFA / GA / 4175 / 2011 / RK
11 / 08 / 2011
South Africa
Tribunal of the Pension Funds Adjudicator
Johannesburg
Dr EM De la Rey
Keywords:
Trusts and Estates – Pensions – Death benefit – Distribution of – Departure from wishes expressed by
deceased fund member in nomination form – Although the deceased may have expressed an intention to
benefit a nominated beneficiary, it did not necessarily follow that a benefit would in fact be awarded to the
nominee because the deceased’s intentions as contained in the nomination form were only one of the
factors taken into consideration when allocating a death benefit – Trusts and Estates – Pensions – Death
benefits – Duties of fund’s trustees – Trustees must conduct a thorough investigation to determine the
potential beneficiaries, to thereafter decide on an equitable distribution and finally to decide on the most
appropriate mode of payment of the benefit allocated – Trustees must properly exercise discretion in
above regard –
Mini Summary:
The Pension Funds Adjudicator received a complaint from the brother of a member of the first respondent
(“the fund”) who died in 2009. At the time of his death, the deceased was still an active member of the
fund. Upon his death, a death benefit in the amount of R26 422,15 became available for distribution. The
board of trustees resolved to allocate the death benefit to the deceased’s three minor children, awarding
20% to his 17-year-old daughter, 25% to his 11-year-old son, and 55% to his 2-year old son.
It was unclear whether the complaint was submitted on behalf of the deceased’s mother in her personal
capacity or in her capacity as the care-giver of the two older children of the deceased. The complainant
submitted that the trustees ought to have respected the deceased’s wishes as set out in the beneficiary
nomination form and paid out the death benefit to his mother.
Held that the issue for determination was whether or not the distribution of the death benefit by the first
respondent was in accordance with the provisions of section 37C of the Pension Funds Act 24 of 1956. The
payment of death benefits is regulated by section 37C of the Act, read in conjunction with the definition of
a “dependant” in section 1. The primary purpose of the section is to protect those who were financially
dependent on the deceased during his lifetime.
Although the deceased may have expressed an intention to benefit a nominated beneficiary, it did not
necessarily follow that a benefit would in fact be awarded to the nominee because the deceased’s
intentions as contained in the nomination form were only one of the factors taken into consideration when
allocating a death benefit.
In dealing with payment of death benefits, the fund’s trustees must conduct a thorough investigation to
determine the potential beneficiaries, to thereafter decide on an equitable distribution and finally to decide
on the most appropriate mode of payment of the benefit allocated.
The law recognises three categories of dependants based on the deceased member’s liability to maintain
such a person, namely, legal dependants, non-legal dependants and future dependants. A member is
legally liable for the maintenance of a spouse and children. Parents may qualify as dependants but an
allegation of a parent-child relationship is insufficient and the parent must prove the need for support. In
order for a child to be legally liable to maintain his parents, the parents must be indigent.
The fact that a person is a nominee does not automatically entitle the person to share in the benefit. The
fund’s trustees have to exercise discretion in determining who is to share in the benefit and in what
proportions. The factors taken into account in the exercise of that discretion include the age of the parties;
the relationship with the deceased; the extent of the dependency; the financial affairs of the dependant;
and the future earning potential and prospects of the dependants.
The adjudicator could not find that the trustees had exercised their discretion wrongly. As long as the
trustees properly considered all the relevant factors, ignored irrelevant ones and did not unduly fetter
their discretion, no court or reviewing tribunal would lightly interfere with their decision. No grounds
existing for setting aside the decision, the complaint was dismissed.
Johannesburg Municipal Pension Fund v Pension Funds Adjudicator & others
[2010] JOL 25978 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
09 / 46280
11 / 08 / 2010
South Africa
High Court
Johannesburg, South Gauteng
GSS Maluleke J
Keywords:
Pensions – Pension benefit – Computation of – Complaint – Time-barring
Mini Summary:
The second and third respondents ("the employees") were employed by the fifth respondent, a local
municipality, until they were dismissed on grounds of incapacity. During the course of their employment,
they were members of the applicant pension fund. The employees were medically boarded in 1995. They
thenceforth began to receive their pension from the applicant and would continue to receive their pension
for life.
The applicant calculated the pension of the employees by applying the rate of 1,7516% in accordance with
the provisions of the fund's rules. The rate in question was the prescribed rate for members whose exact
age at retirement was under 60 years. In their complaint to the adjudicator, the employees maintained
that the applicant had incorrectly calculated their pension as the pensionable age of 63 should be the basis
for determining the percentage rate.
Pursuant to the adjudicator's determining that the applicant should recalculate the pension of the
employees at the rate of 2,0108% as was contended for by them, the applicant noted the present appeal.
The first ground of appeal was in the form of an in limine objection that the employees' complaints to the
adjudicator were time barred in terms of section 301 of the Pension Funds Act 24 of 1956 and were also
prescribed in terms of section 12 of the Prescription Act 68 of 1969. Secondly, the applicant contended
that on a proper interpretation of its rules, the pensions of members whose membership was terminated
when their ages were below 60 years had to be calculated at the rate of 1,7516% and not at the rate of
2,0108% as determined by the adjudicator.
Held that it was common cause that the pensions were calculated in 1995, and the complaint was
submitted to the adjudicator some 10 years later. The court confirmed that the complaint to the
adjudicator was time barred in terms of section 301 of the Pension Funds Act and was also prescribed in
terms of section 12 of the Prescription Act. The adjudicator did not and could not extend the period of
prescription in terms of section 301(3), and had no power or authority to revive a prescribed complaint in
circumstances where the complaint had already prescribed in terms of the Prescription Act.
Secondly, the adjudicator erred by equating the "exact age of retirement" to the pensionable age of 63
years in determining the percentage rate of calculation.
The appeal was upheld on both grounds.
42. REGISTRATION OF BIRTH
43. REFORMATORY FACILITIES
44. RELOCATION DISPUTES
KLVC v SDI and another
[2015] JOL 32761 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
20334 / 2014
12 / 12 / 2014
South Africa
Supreme Court of Appeal
BH Mbha, MML Maya, LE Leach, LV Theron JJA, Schoeman AJA
Keywords:
Family law – Parent and child – Unmarried fathers – Rights of – Acquisition of full parental responsibilities
and rights of an unmarried father – Requirements set out in section 21(1)(b)(i) to (iii) of the Children’s
Act 38 of 2005 – Where father had met all the requirements prescribed in section 21(1)(b)(i) to (iii) of the
Children’s Act 38 of 2005 and therefore had acquired full parental rights and responsibilities in respect of
the child, it was necessary for the mother to have obtained the father’s consent prior to applying for a
passport for the child’s removal from South Africa RRS v DAL (22994/2010) [2010] ZAWCHC 618 (10
December 2010) – Referred to Fraser v Children’s Court, Pretoria North 1997 (2) BCLR 153 (1997 (2) SA
261) (CC) – Referred to
Mini Summary:
A minor child was at the centre of the present dispute. The appellant and first respondent were parents of
the child, and although they were never married to each other, nor did they cohabit or live together in a
permanent life partnership, the first respondent had at all material times consented to being identified as
the child’s father. In November 2012, while the first respondent was on a brief visit overseas, the
appellant removed the child from Durban and relocated to England without either informing or seeking
permission from the first respondent to do so.
In terms of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 (the Hague
Convention), the first respondent applied to the High Court of Justice, Family Division of the United
Kingdom (the English court) for an order directing the appellant to return the child to his habitual place of
residence in Durban, South Africa. The basis of the application was that the appellant had removed the
child from South Africa to England in breach of the first respondent’s co-parental rights and responsibilities
by not seeking the first respondent’s approval before doing so. The fundamental question for resolution
before the English court was whether the appellant’s removal of the child from South Africa without the
first respondent’s approval was wrongful. That entailed a consideration of whether the removal of the child
was wrongful because it was in breach of the rights of custody of the father under the law of South Africa
immediately before the removal of the child, and whether the relevant rights of custody were actually
being exercised at the time of the child’s removal.
Unable to decide the question, the English court made an order referring to a South African court for
determination, the question of whether in November 2012, it was lawful under South African law having
regard to the circumstances of this case, for the appellant to change the place of residence of the child
from a place in South Africa to a place in England and Wales without the prior permission or consent of
the first respondent or a South African court.
The court a quo ruled in the first respondent’s favour, finding that in November 2012, the father had met
all the requirements prescribed in section 21(1)(b)(i) to (iii) of the Children’s Act 38 of 2005 and therefore
had acquired full parental rights and responsibilities in respect of the child. Accordingly, it was necessary
for the appellant to have obtained the first respondent’s consent prior to applying for a passport for the
child’s removal from South Africa.
The appellant appealed against that finding.
Held that section 21(1)(b) provides for the acquisition of full parental responsibilities and rights of an
unmarried father if he consents to being identified as the child’s father; 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 towards expenses in connection with the maintenance of the child for a
reasonable period.
Determining whether or not an unmarried father has met the requirements in section 21(1)(b) is an
entirely factual enquiry. It is a type of matter which can only be disposed of on a consideration of all the
relevant factual circumstances of the case. It was unnecessary to rule on whether the requirements set
out in section 21(1)(b) ought to be determined conjunctively or whether they were simply categories of
facts which a court must consider before concluding whether an unmarried father has acquired full
parental responsibilities and rights in respect of a minor child or not.
Much of the debate before the Court related to whether the first respondent had contributed adequately or
at all, or had attempted in good faith to contribute over a reasonable period, towards the upbringing or
expenses in connection with the maintenance of the child. The Court considered the meaning that was
intended by the legislature in including phrases or words such as “contribute(s)” and “for a reasonable
period” in the section. What needs to be determined is the nature and extent of the contribution required
for the child’s upbringing and for expenses in respect of the child in order for an unmarried father to
acquire full parental responsibilities and rights. The Court was of the view that the legislature was
deliberately not prescriptive in defining that nature of the required contribution. Based on the evidence
adduced, the Court agreed with the court a quo that the first respondent had indeed met what was
required by section 21(1)(b)(ii). The first respondent demonstrated sufficiently that he had acquired full
parental responsibilities in respect of the child by November 2012. As co-guardian, his consent was
therefore required prior to the removal of the child from South Africa by the appellant.
45. REMOVAL OF CHILDREN
CCT 55-11 C v
DEPARTMENT OF HEALTH AND SOCIAL DEVELOPMENT GAUTENG (CCT 55-11) JUDGMENT (110112).PDF
On Wednesday 11 January 2012 the Constitutional Court gave judgment in a case that required it to
decide whether certain provisions of the Children’s Act that authorise the removal of children in certain
circumstances are consistent with the Constitution. The High Court had held that they were not because
the provisions authorising removal did not say that the removal must be automatically reviewed by a
court in the presence of a parent, care-giver or guardian of the child. The Constitutional Court had to
decide if the High Court declaration should be confirmed.
In a judgment written for the majority of the Constitutional Court, Yacoob J confirmed the declaration of
invalidity. He found that the provisions were aimed at catering for the best interests of children in an
effort to comply with the Constitution. However, the Constitutional Court held that the laws did not
provide sufficient safeguards for circumstances where a social worker or a police officer removed
children wrongly or where the Children’s Court makes an order on incorrect evidence. The provisions
were accordingly found to be inconsistent with the Constitution.
Yacoob J concluded that the appropriate remedy was to read into the provisions a requirement that all
these removals should be automatically reviewed by the Children’s Court shortly after the removals had
taken place.
Writing for the minority, Skweyiya J, with Froneman J concurring, also concluded that the impugned
provisions were unconstitutional and agreed in the majority’s remedy. The minority reasoned, however,
that the impugned provisions of the Children’s Act impacted squarely on the rights of the child and
obliquely on the right of access to courts, which was not absolutely denied in form, but hampered in
substance. South Africa’s international law obligations under the African Charter on the Rights and
Welfare of the Child (ACRWC) and the United Nations Convention on the Rights of the Child (UNCRC)
were also relevant to the inquiry. Unlike in the majority, Skweyiya J and Froneman J do not see the
limitation as the lack of automatic review; but in the removal provisions themselves, as the mere
presence of strict requirements for removal does not mean that a right has not been limited, but that the
limitation is more justifiable.
In a dissenting judgment, Jafta J, with Mogoeng CJ concurring, disagreed with the finding of
constitutional invalidity on the basis that the section on children’s rights in the Constitution does not
refer to automatic review and does not contain the requirement for judicial review or supervision from
the ACRWC and UNCRC. In determining the scope of the right to parental care, the section on children’s
rights in the Constitution cannot be interpreted to include parental care that is harmful or detrimental
to the safety and well-being of a child. It follows that the impugned provisions are consistent with the
Constitution”
46. RIGHT TO EDUCATION
Madzodzo obo Parents of Learners at Mpimbo Junior Secondary School and others v Minister of
Basic Education and others
[2014] JOL 31500 (ECM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2144 / 2012
20 / 02 / 2014
South Africa
High Court
Eastern Cape, Mthatha
G Goosen J
Keywords:
Education – Right to basic education – State’s responsibilities – Provision of age-appropriate school
furniture
Mini Summary:
This matter concerned the impact of an alleged failure to provide essential school furniture, in the form of
desks and chairs, to public schools throughout the Eastern Cape Province and in particular in impoverished
rural areas. The application was commenced in October 2012 when the parents of learners attending three
schools in the province (the first to third applicants) brought an application for an order declaring the
respondents to be in breach of the learner’s rights to education, equality and dignity - because of the
respondents’ failure to provide adequate, age and grade appropriate furniture at those schools. The
parties entered into an agreement which was embodied in an order directing the respondents to ensure
that the three applicant schools received adequate, age and grade appropriate furniture on or before 16
January 2013. It also provided that the respondents file a report by way of an affidavit to the attorneys of
the applicant by 21 January 2013, indicating their compliance with the order. In August 2013 the
applicants launched further proceedings founded upon the respondents’ failure to comply with the terms of
the order. The parties again reached agreement in respect of certain matters. The respondents were
required to publish a copy of the revised audit and to make same available for public inspection.
In the present application, the applicants sought an order specifying that all of the furniture required in
the audit had to be delivered to the identified schools within 90 days of the finalisation of the audit, ie by
31 May 2014. The respondents contended, however, for an open ended order. It was suggested that the
best that the department could offer, after a reconciliation of the budget and the requirements of the
schools, would be a reasonable plan of action to provide furniture to learners within the shortest period of
time.
Held that it was not in dispute that the state of public school education in the Eastern Cape Province was
seriously and adversely affected by a failure to provide adequate furniture to a significant portion of
schools in the province. The right to basic education provided for in section 29(1)(a) of the Constitution is
an unqualified right which is immediately realisable and is not subject to the limitation of progressive
realisation. The state’s obligation to provide basic education as guaranteed by the Constitution is not
confined to making places available at schools. It necessarily requires the provision of a range of
educational resources. The approach suggested by the respondents offered learners at public schools in
the Eastern Cape Province no prospect of achieving access to basic resources required in order to access
the right to basic education.
The Court therefore granted an order in favour of the applicants.
47. SETTELMENT AGREEMENTS
Schultze v Schultze (born Van Ryneveld) (Schultze NO and others as third parties)
[2014] JOL 31520 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
11 / 5810
Pls insert
South Africa
High Court
Division:
Bench:
South Gauteng, Johannesburg
SAM Baqwa J
Keywords:
Contract – Settlement agreement – Validity
Mini Summary:
The plaintiff and the defendant were husband and wife who were currently involved in divorce
proceedings. They entered into a deed of settlement which conferred on the defendant the right to receive
from the marriage and a trust a combined value of R35 million plus an estimated annual income of
R750 000.
While the plaintiff applied for the settlement agreement to be an order of Court, the defendant denied that
the agreement was binding.
Held that the plaintiff bore the overall onus as defendant’s admission of the signing of the agreement
meant that she was prima facie bound and the onus which she bore was to produce evidence why she
should not be bound. One of the main grounds for attacking the validity of the settlement agreement was
that it was void for vagueness. The question in this case was whether vagueness and uncertain language
justified the implication that the parties were never ad idem, creating the possibility that they were never
certain as to what they acknowledged as their obligations. The general approach to questions of
vagueness by the courts is to seek to uphold the contract rather than to destroy it. The golden rule of
interpretation is that where the language of the contract is clear and unambiguous, effect must be given
to its ordinary grammatical meaning except where this meaning leads to an absurdity or to something
which the parties obviously never envisaged. If the meaning of the words used is clear and unambiguous,
evidence is not admissible to contradict, add or modify their meaning.
In assessing the probabilities and considering all the events, the Court concluded that of the two versions
before it regarding what the parties agreed to, the plaintiff’s was the more probable one. The deed of
settlement was therefore declared to be a binding agreement – which was valid and enforceable.
48. SURROGACY AGREEMENTS
Ex parte application WH & others
[2011] JOL 27860 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
29936 / 11
27 / 09 / 2011
South Africa
High Court
North Gauteng, Pretoria
RG Tolmay et N Kollapen JJ
Keywords:
Family law – Parent and child – Children – Surrogacy motherhood agreement – Confirmation by court
Mini Summary:
The first and second applicants (referred to as the "commissioning parents") were two males who were
married to each other. They approached the court to confirm a surrogacy motherhood agreement in terms
of the Children's Act 38 of 2005 (“the Act”). The surrogate mother was engaged to the fourth applicant,
and had two children of her own.
Held that the Act provides the legal framework for willing parties to facilitate surrogacy agreements with
the proviso that the confirmation by the high court of all surrogacy agreements is required to render any
such agreement valid. Section 292 of the Act provides for the formal requirements of a valid surrogate
motherhood agreement and in terms of section 295, a court may not confirm the agreement unless
certain requirements are met. The Act also deals with the question of payments in respect of surrogacy
and generally prohibits commercial surrogacy while only permitting payments related to compensation for
expenses, loss of earnings and bona fide professional, legal and medical services related to the
confirmation of a surrogate motherhood agreement.
In terms of section 28(2) of the Constitution a child's best interests are of paramount importance in every
matter concerning the child. This approach is echoed in section 7 of the Act.
The Court in this case found that, having regard to the requirements of the Act, the commissioning
parents in this case have made out a proper case for the relief they seek. The formal requirements found
in section 292 of the Act have been met and we are satisfied that both the commissioning parents as well
as the surrogate mother are suitable persons as contemplated in the Act, both to accept parenthood as
well as to act as surrogate mother respectively. The surrogate motherhood agreement was accordingly
confirmed.
49. TRUSTS
Moosa NO & others v Akoo & others
[2010] JOL 25872 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
5378 / 06
22 / 06 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
HQ Msimang JP
Keywords:
Trusts – Trustee – Letters of authority
Mini Summary:
The present application was part of prolonged litigation involving family trusts. The applicants had started
by seeking a declarator that a partnership relationship subsisting between the parties had been lawfully
dissolved with effect from 28 February 2006 and an order appointing a liquidator with powers to effect a
final liquidation of the partnership and to make applicable distributions to the partners according to the
extent of their determined interests in the partnership.
The respondents filed a counter-application seeking an order declaring their family trust to have been
equal partners with the applicants as at the date of the dissolution of the partnership on 28 February 2006
and seeking, inter alia, an order directing the said trust to deliver a statement of account of the
partnership as at 28 February 2006. The court appointed a liquidator and referred the issues in the
counter-application for oral evidence.
Held that the applicants challenged the conduct of the first respondent in acting for the trust before his
Letters of Authority were issued. The court found that the first respondent’s act, when he purported to
represent the trust when it took over the interests in the partnership, was void.
The court accordingly found for the applicants for the main relief.
Thabethe v First National Bank Group Pension Fund & another
[2010] JOL 25951 (PFA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
PFA/GA/32549/2009/RM
03 / 05 / 2010
South Africa
Pensions Fund Tribunal
Charles Pillai
Keywords:
Pensions – Practice and procedure – Time limits for lodging of complaint with Adjudicator – Section 30I of
the Pension Funds Act 24 of 1956 imposes certain time limits with regard to lodgement of complaints
before the Adjudicator – Adjudicator shall not investigate a complaint if the act or omission to which it
relates occurred more than three years before the date on which the complaint is received by him
Mini Summary:
The complainant commenced contributions to the first respondent pension fund in 1983. He exited the
fund upon resigning from his employment in 1991. Upon his exiting the fund, he was given three options
regarding his withdrawal benefit. He opted to receive cash payment of his benefit and the fund paid him
accordingly.
The present complaint concerned the non-payment of a deferred pension benefit by the first respondent.
Responding to the complaint, the second respondent averred that the complaint related to events that
occurred in 1991 and 1992, but the complaint was only lodged in April 2009. It argued that in terms of
section 30I (1) and (2) of the Pension Funds Act 24 of 1956, the complaint was lodged outside the
required three-year period, and had therefore prescribed.
Held that section 30I of the Pension Funds Act 24 of 1956 imposes certain time limits with regard to
lodgement of complaints before the adjudicator. The adjudicator shall not investigate a complaint if the act
or omission to which it relates occurred more than three years before the date on which the complaint is
received by him.
The act or omission to which this complaint related occurred, at the latest, in January 1992 following the
complainant's election to receive a cash benefit and his waiver of any claim to a deferred pension. Any
complaint regarding the complainant's entitlement to a deferred pension should have been lodged at that
time or within three years of the date the cause of action arose, ie by January 1995. However, the
complaint was only lodged on 9 March 2009. Therefore, it was received more than 14 years out of time.
The peremptory nature of the provisions of section 30I(1), meant that the tribunal had no authority to
investigate and adjudicate upon any complaint which is time-barred. Applying the provisions of the
Prescription Act 68 of 1969 to the facts, the adjudicator again found that the claim had prescribed.
The complaint was dismissed.
Johannesburg Municipal Pension Fund v Pension Funds Adjudicator & others
[2010] JOL 25978 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
09 / 46280
11 / 08 / 2010
South Africa
High Court
Johannesburg, South Gauteng
GSS Maluleke J
Keywords:
Pensions – Pension benefit – Computation of – Complaint – Time-barring
Mini Summary:
The second and third respondents ("the employees") were employed by the fifth respondent, a local
municipality, until they were dismissed on grounds of incapacity. During the course of their employment,
they were members of the applicant pension fund. The employees were medically boarded in 1995. They
thenceforth began to receive their pension from the applicant and would continue to receive their pension
for life.
The applicant calculated the pension of the employees by applying the rate of 1,7516% in accordance with
the provisions of the fund's rules. The rate in question was the prescribed rate for members whose exact
age at retirement was under 60 years. In their complaint to the adjudicator, the employees maintained
that the applicant had incorrectly calculated their pension as the pensionable age of 63 should be the basis
for determining the percentage rate.
Pursuant to the adjudicator's determining that the applicant should recalculate the pension of the
employees at the rate of 2,0108% as was contended for by them, the applicant noted the present appeal.
The first ground of appeal was in the form of an in limine objection that the employees' complaints to the
adjudicator were time barred in terms of section 301 of the Pension Funds Act 24 of 1956 and were also
prescribed in terms of section 12 of the Prescription Act 68 of 1969. Secondly, the applicant contended
that on a proper interpretation of its rules, the pensions of members whose membership was terminated
when their ages were below 60 years had to be calculated at the rate of 1,7516% and not at the rate of
2,0108% as determined by the adjudicator.
Held that it was common cause that the pensions were calculated in 1995, and the complaint was
submitted to the adjudicator some 10 years later. The court confirmed that the complaint to the
adjudicator was time barred in terms of section 301 of the Pension Funds Act and was also prescribed in
terms of section 12 of the Prescription Act. The adjudicator did not and could not extend the period of
prescription in terms of section 301(3), and had no power or authority to revive a prescribed complaint in
circumstances where the complaint had already prescribed in terms of the Prescription Act.
Secondly, the adjudicator erred by equating the "exact age of retirement" to the pensionable age of 63
years in determining the percentage rate of calculation.
The appeal was upheld on both grounds.
Smith v SAA Flight-Deck Crew Provident Fund & another
[2010] JOL 25963 (PFA)
Case Number:
Judgment Date:
Country:
PFA/KZN/24462/2008/TD
20 / 05 / 2010
South Africa
Jurisdiction:
Division:
Bench:
Pensions Fund Tribunal
Durban North
Charles Pillai
Keywords:
Pensions – Death benefits – Distribution of – Payment of death benefits by a pension fund is regulated by
section 37C of the Pension Funds Act 24 of 1956 – Main aim of the section is to ensure that those persons
who were dependant on the deceased during his lifetime, irrespective of whether the deceased was legally
required to maintain them or not, are not left without support after his deathPensions – Death benefit –
Distribution of – Trustees duties – Trustees must identify and trace the circle of beneficiaries; effect an
equitable distribution of the death benefit; and determine an appropriate mode of payment of the
benefitPensions – Death benefit – Distribution of – Trustees powers – Section 37C of the Pension Funds
Act 24 of 1956 gives the trustees of a fund a discretion insofar as the distribution of death benefits is
concerned
Mini Summary:
The complainant's father was a member of the first respondent pension fund until his suicide in 2007. At
the time of his death, the deceased was cohabiting with the second respondent.
The deceased left a suicide note in which he purported to give his house to the second respondent, and
authorised his bank to give her immediate access to cash in a savings account. He also advised her of
money he kept in his safe.
In distributing the death benefit payable by the fund upon the death of the deceased, the fund's trustees
awarded 50% of the benefit to the second respondent and 50% to the complainant. The complainant was
dissatisfied with the trustees' decision to allocate 50% of the death benefit to the second respondent,
alleging that the second respondent was not a dependant of the deceased.
Held that the question for determination was whether or not the tribunal should set aside the trustees'
decision to distribute the death benefit payable following the passing away of the deceased in equal shares
between the complainant and the second respondent.
The payment of death benefits by a pension fund organisation as defined in section 1 of the Pension Funds
Act 24 of 1956 is regulated by section 37C of the Act. In terms of section 37C, any such benefit shall not
normally form part of the assets in the estate of the deceased, but shall be dealt with in terms of the
section. Section 37C gives the trustees discretion insofar as the distribution of death benefits is concerned.
The main aim of the section is to ensure that those persons who were dependant on the deceased during
his lifetime, irrespective of whether the deceased was legally required to maintain them or not, are not left
without support after his death. Section 37C imposes three primary duties on the trustees when they
consider the distribution of a death benefit. They have to first identify and trace the circle of beneficiaries,
ie all the dependants and nominated beneficiaries of the deceased. Once the circle of beneficiaries is
identified, the trustees have to effect an equitable distribution of the death benefit; and finally the trustees
must determine an appropriate mode of payment of the benefit. In doing the above, the trustees must
consider all the relevant factors to the exclusion of all the irrelevant factors and must not fetter their
discretion in any way. Where it is found that the trustees failed to take into account relevant factors, or
took into account irrelevant factors, the trustees' decision shall be reviewable on the grounds that they
have exceeded their power or that the decision constituted an improper exercise of their powers.
In the present case, the trustees found the complainant to fall squarely within the definition of a
"dependant", while the second respondent was found to be a factual dependant. Examining the factors
taken into account by the trustees, the adjudicator found no improper exercise of their discretion. The
distribution of the death benefit was not unreasonable, and the complaint was accordingly dismissed.
50. VARIATION OF CUSTODY ORDERS
Klare & another v Klare (born Bodley)
[2010] JOL 25922 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1214 / 09
04 / 05 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
F Kroon J
Keywords:
Civil procedure – Divorce litigation – Variation of order – Costs
Mini Summary:
The first applicant and the respondent were formerly married to each other, but were divorced in 2008.
The divorce order incorporated the terms of a deed of settlement provided, inter alia, that the couple's
children would reside with the respondent, who would be their primary carer subject to the first applicant's
right of reasonable access to them.
Having since married the second applicant, the first applicant now sought variation of the order relating to
the care and control of the children, in essence decreeing that the first applicant be the primary carer of
the children and that they live with him, with the respondent having rights of access to them. The
applicants adduced evidence regarding the conduct of the respondent, and her alcohol abuse. The Family
Advocate issued a report supporting the relief sought in the present application.
The matter was postponed several times, and eventually the parties reached an agreement. The
agreement made provision for the first applicant to be the primary care giver of the children, for them to
reside with him, and for the respondent to have structured supervised contact with the children.
The parties were, however, unable to reach agreement on the issue of costs and that was the sole issue
argued before the court.
Held that the respondent opposed the application on a limited basis only. Her opposition arose where she
bona fide believed that she was acting in the best interests of her children. The court therefore deemed it
best to make no order as to costs.
51. WILLS
Rens v Edelstein NO and another
[2014] JOL 32286 (GP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
50959 / 2013
16 / 09 / 2014
South Africa
High Court
Gauteng North Division, Pretoria
S Potterill J
Keywords:
Trusts and Estates – Succession – Wills – Interpretation of – Test – Rectification of wills
Mini Summary:
The applicant launched this application in his personal capacity and in his official capacity as co-executor
of a deceased estate. The respondent acted in his capacity as executor in the deceased estate and in his
capacity as sole trustee of the family trust of the deceased. He filed a counter-application that it be
declared on a proper interpretation of the will that the property fell in the remainder of the estate ie to the
family trust. The dispute between the parties concerned the interpretation of two clauses of the will,
setting out special bequests.
Held that in interpreting the will, the true test was to ascertain the wishes from the testator as expressed
in the will from the language used. Where the testator’s words, as in casu, are clear from the plain
grammatical meaning and syntax a court can have regard to the material facts and circumstances known
to the testator when making the will to ascertain if these clear and unambiguous words set out the object
of the bequest as expressed in the will. The conclusion is thus that a court cannot interpret the language
of a will to give effect to something the testator may have intended but which he has not expressed at all.
Applying that approach, the Court found that the interpretation contended for by the applicant had to be
accepted.
That meant that the counter-application had to be dismissed. The Court also refused an alternative
counter-application for rectification of the will. Rectification is only granted on a balance of probabilities if
the will does not express the true intention of the testator and there is reliable evidence to show what the
testator’s intention was.
The relief sought by the applicant was thus granted.
COMPILED BY GREG NEL
ADDITIONAL MAGISTRATE: TABANKULU
TELEPHONE- 039-2580242
CELL NUMBER- 0846379166
FAX TO E-MAIL- 0867322399
grnel@justice.gov.za