The Law of Persons and Family Law

Source: Review of South African Law, Juta's/Annual Survey of South African Law/2015/The law of persons and family law

URL: http://jutastat.juta.co.za/nxt/gateway.dll/jrsa/1573/1611/1623?f=templates$fn=default.htm The law of persons and family law 2015 Annual Survey 393

Jacqueline Heaton *

Legislation The law of persons No applicable legislation or draft legislation was promulgated during the period under review.

Case law Domicile In Central Authority v TK 2015 (5) SA 408 (GJ), Spilg J raised issues relating to the domicile of a child in the context of an application for the child's return under the Hague Convention on the Civil Aspects of International Child Abduction. This case is discussed in the chapter on Conflict of Laws. Suffice to mention for present purposes, that domicile is not the appropriate criterion in the context of the Hague Convention — habitual residence is. To make matters worse, Spilg J appears to have been unaware of the enactment of the Domicile Act 3 of 1992 ('the Domicile Act'). He incorrectly stated that a wife and a minor child obtain domiciles of dependence. This entails that a wife follows her husband's domicile and a minor follows his or her father's domicile. A person of at least eighteen years of age, and someone who is younger than eighteen years, but legally has the status of a major, can acquire a domicile of choice, regardless of his or her sex or marital status, unless he or she lacks the mental capacity to make a rational choice (s 1(1) of the Domicile Act). Therefore, a wife obtains a domicile of choice independently of her husband. The domicile of a minor is regulated by section 2 of the Domicile Act, which provides that a minor is domiciled at the place with which he or she is most closely connected.

2015 Annual Survey 394

Parental responsibilities and rights of unmarried parents Acquisition of parental responsibilities and rights KLVC v SDI & another [2015] 1 All SA 532 (SCA) is an unsuccessful appeal against the decision of the High Court in I v C & another (KZD) 4 April 2014 (case 11137/2013). The decision of the High Court was discussed in 2014 Annual Survey 836–7. There it was mentioned that the decision was confirmed on appeal. To elucidate: on appeal, the Supreme Court of Appeal confirmed that the unmarried father had acquired parental responsibilities and rights in terms of the Children's Act 38 of 2005 ('the Children's Act'), as the requirements in section 21(1)(b) of the Children's Act had been met. That section provides that an unmarried biological father has full parental responsibilities and rights in respect of his child if he, regardless of whether he has lived or is living with the mother — (i) consents to be identified or successfully applies in terms of section 26 to be identified as the child's father or pays damages in terms of customary law; (ii) contributes or has attempted in good faith to contribute to the child's upbringing for a reasonable period; and (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period. The question of whether the requirements in (i)–(iii) are cumulative, or distinct and independent, has not yet been settled. In RRS v DAL (22994/2010) [2010] ZAWCHC 618 (10 December 2010), it was held that all three of the requirements must be satisfied. This is in keeping with the view of several authors (see Anna Sophia Louw Acquisition of Parental Responsibilities and Rights (unpublished LLD thesis, University of Pretoria 2009) 123–4; Lawrence Schäfer Child Law in South Africa. Domestic and International Perspectives (2011) 241; Ann Skelton & Marita Carnelley (eds) Family Law in South Africa (2010) 247; Jacqueline Heaton 'Parental responsibilities and rights' in CJ Davel & AM Skelton (eds) Commentary on the Children's Act (2007) 3–13; Anne Skelton 'Parental responsibilities and rights' in Trynie Boezaart (ed) Child Law in South Africa (2009) 76). However, in the court a quo (I v C & another above), concern was raised about the interpretation that renders the three requirements cumulative, among other things, because it excludes 'the penniless unmarried father who nevertheless cares for his child's

2015 Annual Survey 395 upbringing and contributes or makes good faith attempts to contribute to the child's upbringing' (para [30]). The court did not find it necessary to decide the issue of the correct interpretation of the word 'and' in section 21(1)(b). It was held that the father had in any event complied with all three requirements. Likewise, the Supreme Court of Appeal found it unnecessary to decide the issue, as it confirmed the finding of the court a quo in this regard (paras [14], [16], [28], [34]). In respect of the approach that must be adopted when deciding whether section 21(1)(b) has been satisfied, the Supreme Court of Appeal also confirmed the view of the court a quo that a purely factual enquiry is at issue (paras [13] [14]). It held that, even though the court must exercise a value judgment in respect of the matters mentioned in section 21(1)(b)(ii) and (iii), this does not mean that judicial discretion is involved, because an 'unmarried father either acquires parental rights or responsibilities or he does not' (paras [14] [15]; the quoted portion appears in para [14]). The Supreme Court of Appeal held that the facts of each case, including the age of the child and the circumstances of the parties, are relevant considerations in evaluating the reasonableness of the period during which the father contributed to the child's upbringing and expenses in connection with the child's maintenance. Moreover, it was held that 'whatever the unmarried father contributes must be of an on going nature' (para [21]). The Supreme Court of Appeal also agreed with the court a quo that '[c]ontribut[ing]' or 'attempt[ing] in good faith to contribute' for 'a reasonable period' are elastic concepts and permit a range of considerations culminating in a value judgment as to whether what was done could be said to be a contribution or a good faith attempt at contributing to the child's upbringing over a period which, in the circumstances, is reasonable (para [22], quoting a portion of para [35] of the judgment of the court a quo). The Supreme Court of Appeal added that the maintenance contribution envisaged in section 21(1)(b)(iii) is not the same as the maintenance that the father must provide in terms of the Maintenance Act 99 of 1998 (para [29]). Therefore, any contribution to the child's maintenance can be considered. Although the Supreme Court of Appeal avoided what was possibly the most important issue with regard to section 21(1)(b) — ie whether the requirements listed in the section are cumulative

2015 Annual Survey 396 — its decision is, nevertheless, helpful. It provides useful guidance on the approach that must be adopted when determining whether the section has been complied with. It also clarifies what constitutes 'a reasonable period of time' for purposes of section 21(1)(b)(ii) and (iii) (see also Jacqueline Heaton & Hanneretha Kruger Casebook on South African Family Law (2015) 414).

Termination of parental responsibilities and rights © 2018 Juta and Company (Pty) Ltd.In GM v KI 2015 (3) SA 62 (GJ), an unmarried mother sought termination of all the parental rights of the father of her child subject to retentionDownloaded : Tue May 14 2019 14:07:24 GMT+0200 (South Africa Standard Time) of the father's parental responsibilities. The court held that parental responsibilities and rights are opposite sides of a coin and that for the most part they exist concomitantly (para [9]). The court suspended the father's parental responsibilities and rights until an application for maintenance is made by or on behalf of the child. It further appointed the mother sole guardian of the child for the duration of the suspension of the father's parental responsibilities and rights. The decision is discussed below.

Proof of paternity BR & another v TM; In re: LR [2015] 4 All SA 280 (GJ) concerns a dispute regarding paternity and parental responsibilities and rights pending determination of a divorce action. The second applicant (SR) gave birth to a child (LR) while she was married to the respondent (TM). Three years after LR's birth, the relationship between SR and TM ended. SR moved in with the first applicant (BR), taking LR with her. For seven years before the present application, BR maintained LR, paid her school fees, retained her on his medical aid and attended her school activities, and was LR's father figure. BR and SR married each other a few years after SR separated from TM. They were unaware that their marriage was invalid because the marriage between TM and SR had never been dissolved by divorce. TM also remarried. It seems that, around the time that TM entered into his second marriage, he was advised that he had to divorce SR in order to conclude a valid marriage with his second wife. He instituted divorce proceedings against SR. He also sought an order declaring that he and SR retained full parental responsibilities and rights in respect of LR, and that they shared residency of and contact with LR. TM further launched an application in terms of rule 43 of the High Court Rules, seeking interim contact with LR. In the interim contact

2015 Annual Survey 397 application, SR counterclaimed for maintenance for LR. An order granting TM interim contact with LR, and ordering him to pay maintenance for LR was granted in terms of rule 43. BR and SR subsequently had paternity tests performed in respect of LR. They asked TM to participate in the tests, but he refused to do so. The tests showed with a high degree of probability that BR was LR's father. BR and SR then launched the present application, seeking a declaratory order that BR was LR's biological father, and that BR and SR were coholders of full parental responsibilities and rights, including the duty of support, in respect of LR. In addition they sought an order awarding primary residency of LR to BR and SR, and an order varying the rule 43 order by affording defined contact with LR to TM. TM did not deny that the paternity tests showed that BR was LR's father. Nevertheless, he opposed the application on the grounds that LR's paternity was not disputed in the rule 43 application, and that he was deemed to be LR's father by virtue of the pater est quem nuptiae demonstrant presumption — ie it is presumed that the man to whom a child's mother is married is the child's father. Moreover, he argued that he did not consent to the paternity tests, and that LR's paternity was a matter to be decided in the pending divorce action between him and SR. The applicants replied that they did not dispute TM's paternity in the rule 43 application, because they did not know, at that stage, that BR was LR's biological father. Their attitude was that there was no longer a factual dispute as to paternity, and that the pater est quem nuptiae demonstrant presumption had been rebutted by the results of the paternity tests. They contended that it was not in the best interests of the child that the issues should stand over for determination by the Divorce Court in a few months' time. KathreeSetiloane J found against the applicants. She held that, until the pater est quem nuptiae demonstrant presumption was rebutted on a balance of probabilities, TM was 'regarded by law' as LR's father (para [10]). She referred to section 37 of the Children's Act. It provides that if a party to legal proceedings in which paternity has been placed in issue refuses to submit to the taking of a blood sample for purposes of paternity tests, 'the court must warn such party of the effect which such refusal might have on the credibility of that party'. She held that it was inappropriate to warn TM in the present motion proceedings, as 'this is the function of the divorce court in the pending divorce action, where the respondent's paternity of LR is disputed' (para [11]). Therefore,

2015 Annual Survey 398 no credibility finding could be made against TM in the present proceedings (ibid). She also referred to section 6(1) of the Divorce Act 70 of 1979 ('the Divorce Act'). This section provides that a decree of divorce may not be granted until the court 'is satisfied that the arrangements made or contemplated for the welfare of any minor or dependent child of the marriage are satisfactory or the best that can be achieved in the circumstances'. In her view, paternity and parental responsibilities and rights were 'integral to the matrimonial cause' in the present case, because these issues had been raised in the divorce proceedings (para [17]). As a court rarely grants a divorce without hearing the evidence of at least one of the parties, especially if a child is involved, TM had to be given an opportunity to present oral evidence in the divorce action (para [18]). KathreeSetiloane J added that the only applications which may be launched pending divorce are those falling within the definition of 'divorce action' in section 1 of the Divorce Act (paras [20] [21]). These are applications pendente lite for an interdict, for interim care of or contact with a minor child of the marriage, or the payment of maintenance; for a contribution towards the costs of a divorce action; to institute the particular action or make the particular application in forma pauperis; or for substituted service of process or edictal citation of a party to the action or application. KathreeSetiloane J found that it is inappropriate 'for a party to attempt to circumvent a pending divorce action by applying to have matters (whether disputed or not), which are raised in the divorce action determined by a court in motion proceedings', as this fetters the discretion of the judge who will be presiding over the divorce proceedings (para [21]; see also paras [27] [28]). The judge held that the Divorce Court would be best placed to make a decision on the best interests of the child, including the issue of TM's contact with LR (para [31]). A psychologist had prepared a report before the divorce action was instituted. The report indicated that the psychologist could not make a recommendation regarding care of and contact with LR, because her assessment had not been completed. The reason for this was that TM had failed to attend an interview with her or joint sessions with LR (para [30]). KathreeSetiloane J referred to this report and stated that even if the court were inclined to determine the issues raised in the present application, she was unable to do so, because insufficient evidence had been placed before the court

2015 Annual Survey 399 to determine what is in LR's best interests. Although she could refer the issues for determination to oral evidence, the judge was of the view that the pending divorce action rendered this course of action 'neither appropriate nor efficacious' (ibid). She accordingly referred all the issues to the Divorce Court for determination in the pending divorce action (paras [32] [33]). The judgment is disappointing. The court appears to have been of the erroneous view that the absence of TM's participation in the paternity tests, and the fact that he had not been warned in terms of section 37 of the Children's Act rendered a decision as to paternity undesirable at present. In truth, TM's participation in the tests was unnecessary, and his refusal to submit to the tests was of no consequence. Had he submitted to the tests, the tests would still have revealed that BR was LR's father. Furthermore, warning TM in terms of section 37 would have served no real purpose. The paternity tests had already established that TM was not LR's father, and TM did not dispute this finding. Even KathreeSetiloane J stated in so many words that '[t]he paternity results identify the first applicant as the biological father of LR' (para [32]). These facts render the court's unwillingness to decide the paternity issue puzzling. KathreeSetiloane J stated — correctly — that TM was regarded as LR's father by virtue of the pater est quem nuptiae demonstrant presumption, which can be rebutted on a balance of probabilities (para [10]). As none of the parties disputed the results of the paternity tests which indicated that BR was LR's father, the court's reluctance to find that the presumption had been rebutted on a balance of probabilities, is strange. What evidence could TM present at the divorce proceedings to show that the presumption had not been rebutted on a balance of probabilities, despite the fact that he did not dispute the results of the paternity tests? The inevitable conclusion that BR is LR's father also resolves any potential dispute as to whether TM has parental responsibilities and rights in respect of LR. Clearly, he does not. He is not the child's biological father, and he does not have parental responsibilities and rights in terms of section 20 of the Children's Act. This section confers parental responsibilities and rights on the biological father of a child if he is married to the child's mother; or was married to the child's mother at the time of the child's conception or birth, or any time between the child's conception and birth. BR, in contrast, has parental responsibilities and rights, because he satisfies all the requirements in section 21(1)(b) of the Children's Act for the

2015 Annual Survey 400 acquisition of parental responsibilities and rights by an unmarried father. He had consented to be identified as LR's father by having paternity tests done and relying on their results, and he contributed to LR's upbringing and maintenance for a reasonable time. (Section 21(1)(b) is quoted above in the discussion of KLVC v SDI & another.) Therefore, the court should have granted the order declaring that BR was LR's biological father, declaring that BR and SR were coholders of full parental responsibilities and rights (including the duty of support) in respect of LR, and awarding primary residency of LR to BR and SR. The only aspect the court could possibly have referred for later determination based on the present evidence, was TM's contact with LR. However, even that issue need not have been referred for later determination by the Divorce Court. KathreeSetiloane J could have, and in my view should have, referred the matter for the hearing of oral evidence before the divorce action was decided by the Divorce Court. This would have resulted in the issue being determined in a much faster and simpler manner, and would have served the best interests of the child far better than the order KathreeSetiloane J made. The judge's view that the only applications that may be launched pending divorce are those that fall within the definition of 'divorce action' in section 1 of the Divorce Act is incorrect in so far as the High Court is concerned. In its capacity as upper guardian of all minors, the High Court may at any time, and regardless of whether divorce (or other) proceedings are pending, decide any matter relating to the best interests of the child. Surely, determining the paternity of a child where paternity tests show who the child's biological father is and the results of those tests are not disputed, is an example of the sort of case the High Court could decide pending a divorce. Furthermore, if divorce proceedings were pending in the Regional Court, instead of the High Court, referring the matter to the Divorce Court would have been even more unwise than the referral was in the present case. Even though KathreeSetiloane J referred to section 6(1) of the Divorce Act, she seems to have lost sight of the implications of some of the words in the section. The section applies only to 'the arrangements made or contemplated for the welfare of any minor or dependent child of the marriage' (emphasis added). Therefore, the section expressly limits the court's power to orders relating to children who were born of the divorcing couple (see also Jacqueline Heaton & Hanneretha

2015 Annual Survey 401 Kruger South African Family Law 4 ed (2015) 175; Trynie Boezaart 'The position of minor and dependent children of divorcing and divorced spouses or civil union partners' in Jacqueline Heaton (ed) The Law of Divorce and Dissolution of Life Partnerships in South Africa (2014) 186). In the present case, the undisputed paternity tests will eventually result in a finding that the pater est quem nuptiae demonstrant presumption has been rebutted, and that LR is not a child born of the marriage between SR and TM. Consequently, the Divorce Court will not have the power to make an order in respect of LR in terms of section 6 of the Divorce Act. However, because the divorce proceedings were instituted in the High Court (para [28]), the Divorce Court — being a division of the High Court — could invoke its inherent power as upper guardian of all minors to make an order in respect of the child, even though the child was not born of the marriage. In exercising this power the court could, for example, award a right of contact to TM even though he is not LR's parent and does not automatically have parental responsibilities and rights in respect of the child. However, inferior courts do not have this inherent power. Because a Regional Division of the Magistrates' Court (a Regional Court) which operates as a Divorce Court is not the upper guardian of minors, it does not have the power to make an order in respect of a child who was not born of the marriage of the divorcing couple. The rigid view KathreeSetiloane J adopts to compel the Divorce Court to decide the dispute of paternity and parental responsibilities and rights has an undesirable result: in a case involving similar facts to BR heard by a Regional Court a man in a similar position to TM would have to institute further proceedings in terms of the Children's Act after the divorce to obtain an order awarding contact to him. Alternatively, the papers in the divorce proceedings would have to be amended to enable TM to seek an order affording him contact with LR in terms of section 23 of the Children's Act. Section 23 empowers anyone who has an interest in the child's care, wellbeing or development to approach the High Court, Regional Court or Children's Court for an order awarding contact or care to him or her. Another option would be to enter into a parental responsibilities and rights agreement with BR and/or SR relating to contact. However, this agreement would remain unenforceable unless, and until, it is registered with a Family Advocate, or made an order of court by the High Court, Regional Court or Children's Court (s 22 of the Children's Act). The need for these additional

2015 Annual Survey 402 steps would have been avoided if the High Court decided the dispute as to paternity and parental responsibilities and rights before the divorce action was decided.

Surrogate motherhood agreement The Children's Act governs surrogate motherhood (surrogacy). Surrogate motherhood refers to the situation where a surrogate mother undertakes to be artificially fertilised for the purposes of bearing a child for the commissioning parent(s), and to hand the child over to the commissioning parent(s) upon the child's birth, or within a reasonable time thereafter, so that the child will become the commissioning parent(s)' child as if he or she were born of the commissioning parent(s) (Jacqueline Heaton The South African Law of Persons 4 ed (2012) 48). Surrogacy is valid only if it takes place in terms of a written surrogate motherhood agreement that has been confirmed by the High Court (s 292 of the Children's Act). Section 295(a) of the Children's Act provides that a court may not confirm a surrogate motherhood agreement unless it is satisfied that 'the commissioning parent or parents are not able to give birth to a child and that the condition is permanent and irreversible'. Section 294 further provides that [n]o surrogate motherhood agreement is valid unless the conception of the child contemplated in the agreement is to be effected by the use of the gametes of both commissioning parents or, if that is not possible due to biological, medical or other valid reasons, the gamete of at least one of the commissioning parents or, where the commissioning parent is a single person, the gamete of that person. Therefore, valid surrogacy is possible only if at least one of the commissioning parents is genetically linked to the child to be conceived. If the commissioning parent is single, he or she must be genetically linked to the child. Consequently, surrogacy cannot validly take place if a single commissioning parent's gametes are unviable for purposes of artificial fertilisation. In contrast, in the case of artificial fertilisation that does not involve surrogacy — where the woman who is artificially fertilised will carry the child with the objective of retaining the child as her own, instead of the child being handed over to commissioning parent(s) after birth — both donor sperm and donor ova may be used. Section 294 does not apply to this type of artificial fertilisation. Instead such artificial fertilisation is governed by the Regulations Relating to Artificial Fertilisation of Persons issued

2015 Annual Survey 403 under the National Health Act 61 of 2003 (GN R175 GG 35099 of 2 March 2012). These regulations do not prohibit the use of both donor sperm and donor ova for the artificial fertilisation of a single woman. In other words, because of the genetic link requirement in section 294 of the Children's Act, the use of double donor gametes is impermissible in the case of surrogacy, even though it is permissible in other instances of artificial fertilisation. The genetic link requirement was challenged in AB & another v Minister of Social Development (Centre for Child Law as amicus curiae) 2015 (10) BCLR 1228 (GP). The first applicant was a single woman who suffered from a permanent and irreversible condition which prevented her from carrying a pregnancy to term. It also rendered her ova unviable for purposes of her own or any other woman's artificial fertilisation. She wanted to have a child by way of surrogacy, but the genetic link requirement rendered valid surrogacy impossible. She and the Surrogacy Advisory Group (second applicant) challenged the constitutionality of section 294 on the basis that the genetic link requirement violated her rights to equality, dignity, reproductive health care, autonomy, and privacy. The court considered the historical background to the enactment of the provisions of the Children's Act relating to surrogacy and took changing societal views of the concept of 'family' into account (paras [34][39]). Basson J specifically investigated whether genetic lineage should remain significant in defining 'family' (paras [43][46]). She referred to Satchwell v President of the Republic of South Africa & another 2002 (6) SA 1 (CC), 2002 (9) BCLR 986 para [11], where the highest court held Family means different things to different people, and the failure to adopt the traditional form of marriage may stem from a multiplicity of reasons — all of them equally valid and all of them equally worthy of concern, respect, consideration, and protection under law (para [45]). She further pointed out that society does not regard a family that includes an adopted child as less valuable than or different from a family where the parents are biologically related to the child. Therefore, '[a] family cannot be defined with reference to the question whether a genetic link between the parent and the child exists' (para [46]).

2015 Annual Survey 404 Referring to the dictum in New National Party v Government of the Republic of South Africa & others 1999 (3) SA 191 (CC), 1999 (5) BCLR 489 Basson J stated that she had to determine whether the genetic link requirement has a rational connection to the achievement of a legitimate governmental purpose (paras [60] [61]). The respondent had contended that the required rational connection was established by: the best interests of the child; prevention of the commodification and trafficking of children; promotion of the child's rights to know his or her genetic origin and to information about the processes involved in his or her conception; prevention of the creation of designer children, and of shopping around for gametes with the intention of creating children with particular characteristics; prevention of commercial surrogacy; prevention of the potential exploitation of surrogate mothers; prevention of circumvention of adoption laws; promotion of adoption; and prevention of a negative impact on the adoption process (para [62]). Basson J found that differentiating between prospective parents in so far as a genetic link is required in the case of surrogacy, while it is not required in the case of artificial fertilisation that does not involve surrogacy, amounts to violation of the right to equality before the law and equal protection and benefit of the law (s 9(1) of the Constitution of the Republic of South Africa, 1996 ('the Constitution')). A person who is biologically unable to contribute a gamete, and who is not involved in a relationship with somebody who can contribute a gamete is completely excluded from using surrogacy (paras [70][87]). This exclusion also violates the rights to dignity (s 10 of the Constitution), to make decisions regarding reproduction (s 12(2)(a) of the Constitution), to privacy (s 14 of the Constitution), and to access to health care (s 27 of the Constitution. Refer to paras [76], [89], [92], [93], [95], [96], [99]). Basson J rejected all the reasons the respondent offered in support of the genetic link requirement. She held that the fact that, in the case of surrogacy, artificial fertilisation involves gestation of a child by a surrogate mother while other instances of artificial fertilisation involve 'self gestation' in the sense that the woman who is artificially fertilised carries the child with a view to keeping the child, is insufficient reason to render the differentiation acceptable (para [82]). She also held that the submission that double donor surrogacy would circumvent adoption laws was groundless (ibid). Moreover, Basson J dismissed the concerns relating to children and their best interests that the respondent had raised. An unborn

2015 Annual Survey 405 child does not enjoy the fundamental rights that the Constitution confers on children (Christian Lawyers Association of SA & others v Minister of Health & others 1998 (4) SA 1113 (T)). Therefore, the constitutionally entrenched paramountcy of the child's best interests (s 28(2) of the Constitution) does not operate in respect of an unborn child. However, the interests of the child who is to be born from surrogacy are the concern that must 'above all' be considered when the court decides whether to confirm a surrogate motherhood agreement (s 295(e) of the Act). Case law on surrogacy has also emphasised the central role of the interests of the child who is to be born of surrogacy. For example, in Ex parte MS & others 2014 (3) SA 415 (GP), Keightley AJ confirmed a surrogate motherhood agreement that had been concluded in violation of the prohibition on artificial fertilisation of the surrogate mother until after the surrogate motherhood agreement had been confirmed, on the ground that confirmation was in the best interests of the child to be born. (On some of the difficulties arising from application of the bestinterests standard to a child who is yet to be born, and for criticism of the application of the standard to an unborn child, see Anne Louw 'Surrogacy in South Africa: Should we reconsider the current approach?' (2013) 76 THRHR 564 568–73.) In view of the above, it is clear that the interests of children to be born from surrogacy should have weighed heavily with the court in AB . Therefore, one might have expected the court to deal with the interests of the child to be born from surrogacy in the absence of a genetic link to the commissioning parent(s) in quite some detail. However, in less than two pages Basson J found that no persuasive and credible data before the court showed that information relating to the child's genetic origin is necessarily in the best interests of the child. Moreover, it was not proven that the presence or absence of a genetic link in the context of surrogacy has an adverse effect on the child (paras [84]–[86]). She added that to state that the absence of a genetic link in the case of surrogacy would not be in the child's best interests is insulting 'to all those families that do not have a parentchild genetic link', such as adoptive families (para [84]). Basson J concluded The purpose of regulating surrogacy into legislation was to allow commissioning parents including a single parent to have a child. This is also the purpose of the legislation in the IVF [ie artificial fertilisation without surrogacy] context. Requiring that a genetic link should exist between the parent(s) and the child in the context of surrogacy

2015 Annual Survey 406 whereas such a requirement is not set in the context of IVF defeats the purpose and in the absence of a legitimate governmental purpose should be struck down' (para [87]). As Basson J found that there was no legitimate governmental purpose for the genetic link requirement, she concluded that section 294 was inconsistent with the Constitution, and invalid to the extent of its inconsistency (paras [100] [106] [115]). Because an order of constitutional invalidity of legislation has no force unless it is confirmed by the Constitutional Court (s 172(2)(a) of the Constitution), the order has been referred to the Constitutional Court. For a detailed discussion of the possible unconstitutionality of the genetic link requirement, see C van Niekerk 'Section 294 of the Children's Act: Do roots really matter?' (2015) 18 PELJ 398. The article does not relate to the decision in AB . Nevertheless, it provides interesting insights into the issues that the court had to consider.

Wrongful birth and wrongful life H v Fetal Assessment Centre 2015 (2) SA 193 (CC), 2015 (2) BCLR 127 concerns the contentious issue of whether our law should recognise a claim for wrongful life. The case is discussed in the chapter on The Law of Delict.

Family law Legislation With the exception of sections 2 11 and 13(b), which deal with electronic communications service providers and credit rating, the Maintenance Amendment Act 9 of 2015 came into operation on 9 September 2015 (Proc 821 GG 39183 of 9 September 2015 read with s 19 of the Amendment Act). The provisions of the Amendment Act correspond to those of the Maintenance Amendment Bill 16 of 2014. The Bill was discussed in 2014 Annual Survey 394–9.

Subordinate legislation The fees payable to accredited child protection organisations in respect of national and intercountry adoptions were amended on 13 November 2015 (reg 107 of the General Regulations

2015 Annual Survey 407 Regarding Children, 2010 issued in terms of the Children's Act 38 of 2005 as amended by GN R1112 GG 39410 of 13 November 2015).

Draft legislation The Children's Amendment Bill 13 of 2015 ('the Amendment Bill') and the Children's Second Amendment Bill 14 of 2015 ('the Second Amendment Bill') were tabled in Parliament in the period under review. The explanatory summaries of the Amendment Bill and the Second Amendment Bill were published in April 2015 (GN 324 GG 38703 of 17 April 2015 and GN 325 GG 38704 of 17 April 2015, respectively). Clauses 2 to 4 of the Amendment Bill amend some of the provisions of the Children's Act ('the Act') relating to a person who is deemed unsuitable to work with children. Clause 5 of the Amendment Bill amends section 150(1)(a) of the Act to clarify that a child is in need of care and protection if he or she has been orphaned or does not have the ability to support himself or herself and this inability is readily evident, obvious or apparent. This amendment seeks to give effect to the judgments in SS v Presiding Officer, Children's Court, Krugersdorp 2012 (6) SA 45 (GSJ) and especially NM v Presiding Officer of Children's Court, Krugersdorp & others 2013 (4) SA 379 (GSJ). In the latter case, the question arose whether orphaned children being cared for by their grandmother, who had a commonlaw duty to support them, could be found to be in need of care and protection and be placed in her foster care. The court rejected the view that children being cared for by a person who has a commonlaw duty of support towards them may not be placed in foster care with that person while children being cared for by a person who does not have such a duty of support may be placed in foster care with that person. (On NM, see further 2013 Annual Survey 432–5.) Clause 6 of the Amendment Bill and clauses 2 and 3 of the Second Amendment Bill respectively, insert section 152A into the Act and amend sections 151 and 152 of the Act in keeping with the decision in C & others v Department of Health and Social Development, Gauteng & others 2012 (2) SA 208 (CC), 2012 (4) BCLR 329. In this case, the Constitutional Court declared sections 151 and 152 of the Act unconstitutional because they failed to provide for automatic judicial review of the removal of a child to temporary safe care without a court order. The court ordered

2015 Annual Survey 408 the readingin of certain subsections to cure the constitutional invalidity of the sections (see further 2012 Annual Survey 336). Clause 8 of the Amendment Bill and clauses 4 to 6 of the Second Amendment Bill amend various provisions relating to alternative care. Clause 8 of the Amendment Bill amends section 159 of the Act by providing that the duration of orders in respect of a child in need of care and protection may not extend beyond eighteen years, unless the child remains in alternative care after having turned eighteen, and that adoption and intercountry adoption orders are excluded from the ambit of this rule. Clause 4 of the Second Amendment Bill amends section 171 of the Act by empowering the provincial head of the Department of Social Development by notice in writing, to transfer a child from one form of alternative care to another. Clause 5 amends section 176(2)(b) of the Act to empower the provincial head to extend an alternative care placement of a child who has reached the age of eighteen but is still completing Grade 12, higher education, or further education and training. Clause 5 further amends section 176 to allow a person, acting on behalf of someone who was placed in alternative care as a child, to make an application to allow the child to remain in alternative care until the end of the year in which he or she reaches the age of 21 years. Clause 6 of the Second Amendment Bill amends section 186 of the Act to afford the court the discretion to make an order that operates for more than two years if a child in need of care and protection has been living with his or her prospective foster parent for an extended period of time. Clause 9 of the Amendment Bill amends section 230 of the Act to make it clear that a child may be adopted by his or her stepparent, and that a child is adoptable if his or her parent or guardian has consented to the adoption (unless consent is not required). Clause 10 amends section 242(2) of the Act to provide that an adoption order does not automatically terminate a person's parental responsibilities and rights if the person's spouse, civil union partner or life partner adopts the child. These amendments embody part of the order in Centre for Child Law v Minister of Social Development 2014 (1) SA 468 (GNP). Before this decision, officials at some Children's Courts had turned away stepparents who wanted to adopt the children of their spouses, civil union partners or life partners, because they were of the view that a child who was living with a biological parent in a safe environment

2015 Annual Survey 409 could not be adopted. The officials also believed that an adoption order in favour of a stepparent would automatically terminate the parental responsibilities and rights of the child's biological parent, because section 242(1)(a) of the Act provides that an adoption order terminates 'all parental responsibilities and rights any person, including a parent, stepparent or partner in a domestic life partnership, had in respect of the child immediately before the adoption'. The court rejected these views, holding that a stepchild can be adopted by his or her stepparent. It pointed out that section 242(1) empowers the court to provide for exceptions to the general rule that an adoption terminates all parental responsibilities and rights any person had in respect of the child immediately before the adoption. The court held that, failing exceptional circumstances, it would be in the adopted child's best interests not to terminate the parental responsibilities and rights of the biological parent who is the stepparent's spouse, civil union partner or life partner (see further 2013 Annual Survey 431–2). Clause 10 of the Amendment Bill seeks to make this the default position by providing that an adoption order does not automatically terminate all parental responsibilities and rights of the child's parent when the order is granted in favour of the spouse or permanent domestic life partner of the parent.

Case law Accrual System Date for calculating accrual In Schmitz v Schmitz [2015] 3 All SA 85 (KZD), the spouses concluded an antenuptial contract that provided that they would be married subject to the accrual system. For some unknown reason, the contract was never executed and registered as required by section 86 of the Deeds Registries Act 47 of 1937. When the spouses' marriage broke down, the wife alleged that the marriage was in community of property because the antenuptial contract was invalid as it was never registered. The husband alleged that the accrual system operated in the marriage because the informal antenuptial contract was valid as between the parties. The court applied the commonly accepted rule that an antenuptial contract that does not comply with the formal statutory requirements is valid inter partes (paras [8]–[11]; see also Steytler v Dekkers (1872) 2 Roscoe 102; Aschen's

2015 Annual Survey 410 Executrix v Blythe (1886) 4 SC 136; Ex Parte Spinazze & another NO 1985 (3) SA 650 (A); Odendaal v Odendaal [2002] 2 All SA 94 (W)). Consequently, it found that the spouses were married subject to the accrual system. The court then turned to the second issue that arose for decision — the date that should be used for determining the accrual in each spouse's estate and the accrual claim of the spouse whose estate shows the smaller or no accrual. The court referred to the conflicting case law as to whether litis contestatio or the date of the divorce should be used (paras [20]–[22]). Litis contestatio was favoured in MB v NB 2010 (3) SA 220 (GSJ) and MB v DB 2013 (6) SA 86 (KZD), while Le Roux v Le Roux [2010] JOL 26003 (NCK) and JA v DA 2014 (6) SA 233 (GJ) favoured the date of the divorce. (On the conflicting case law, see 2014 Annual Survey 408–9.) The court supported the approach in MB v NB and MB v DB (paras [23]–[26]). However, it should be noted that the dispute about the appropriate date has since been settled by the Supreme Court of Appeal. In Brookstein v Brookstein (20808/14) [2016] ZASCA 40 (24 March 2016), the Supreme Court of Appeal held that the value of the accrual in each spouse's estate and the value of the accrual claim must be determined at the date of the dissolution of the marriage.

Adultery In DE v RH 2015 (5) SA 83 (CC), 2015 (9) BCLR 1003 the Constitutional Court dismissed an appeal against the decision of the Supreme Court of Appeal in RH v DE 2014 (6) SA 436 (SCA), and in so doing confirmed the abolition of the action for damages for adultery based on the actio iniuriarum. The decision of the Constitutional Court is discussed in the chapter on The Law of Delict.

Children Abduction Central Authority v TK 2015 (5) SA 408 (GJ) concerns an application for a child's return under the Hague Convention on the Civil Aspects of International Child Abduction. This case is discussed in the chapter on Conflict of Laws, and briefly mentioned above.

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Acquisition of parental responsibilities and rights by unmarried father KLVC v SDI & another [2015] 1 All SA 532 (SCA) deals with the acquisition of parental responsibilities and rights by an unmarried father. The case is discussed above.

Adoption In JT v Road Accident Fund 2015 (1) SA 609 (GJ), Sutherland J developed the commonlaw action for loss of support to include an adopted child whose biological father continued to support her after she had been adopted by her grandmother. The father was killed in a motor vehicle accident. The question arose as to whether the Road Accident Fund was liable for loss of support that the child suffered due to her biological father's death. The court's decision on the relevant delictual principles is discussed in the chapter on The Law of Delict. The present discussion focuses on the court's statements regarding adoption and its consequences. Section 242(1)(a) and (2)(a) of the Children's Act provides that, unless the adoption order or a courtconfirmed postadoption agreement provides otherwise, adoption terminates all parental responsibilities and rights a parent has in respect of the child, and confers full parental responsibilities and rights in respect of the child on the adoptive parent. The adoption order also terminates all rights and responsibilities the adopted child had in respect of his or her parent immediately before the adoption (s 242(1)(b)). Sutherland J stated that, in terms of the Act, the effect of an adoption order is 'not a fixed and immutable bundle of unchangeable rights and duties', because the default position that terminates the parental responsibilities and rights of the biological parent can be varied (para [11]). This variation can be achieved by means of either the terms of the adoption order, or an order relating to 'an agreement reached between the former parent and the adoptive parent after the adoption, which agreement achieves enforceability upon confirmation by a court' (para [9]). However, in the present case, the default position prevailed, because it had not been varied. Sutherland J, nevertheless, concluded [T]he Children's Act recognises, albeit obliquely, that the extinction, in the literal sense of that term, of parental rights and duties is merely one possible regime of a given adoption, that a reversal is possible, and that a spectrum of positions is possible. In my view these possibilities are inconsistent with the idea that once a 'former' parent ceases to be

2015 Annual Survey 412 a parent ex lege, the existence of a legally enforceable duty of support is no longer possible (para [12]). In the premise, Sutherland J considered various cases in which the action for loss of support had previously succeeded (see, for example, Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA), 2003 (11) BCLR 1220; Fosi v Road Accident Fund & another 2008 (3) SA 560 (C); Paixao & another v RAF 2012 (6) SA 377 (SCA)), and concluded that the common law ought to be developed to afford an action to the adopted child in respect of the loss of support she had suffered due to her biological father's death. In so far as family law is concerned, Sutherland J's judgment is not well argued. First, the statements about the consequences of adoption in terms of the Children's Act are misplaced given the facts of the case. In JT, the child was adopted on 13 March 2009 (para [1.1]). At that stage, the Child Care Act 74 of 1983 still governed adoption. (The provisions of the Children's Act relating to adoption only became operational on 1 April 2010: Proc R12 GG 33076 of 1 April 2010.) The judge appears to have lost sight of this important fact. He did not refer to the Child Care Act at all, and based his remarks on the variation of the default consequences of adoption entirely on the Children's Act. In this particular case, this fundamental error removes the foundation of the judge's premise that adoption is not inconsistent with the existence of a legally enforceable duty of support by the adopted child's former parent, because the provisions in the Child Care Act dealing with the consequences of adoption were more restrictive than those contained in the Children's Act. The Child Care Act did not empower the court that makes an adoption order to deviate from the consequences stipulated by the Child Care Act, unless the child was being adopted by his or her stepparent (s 20(1) of the Child Care Act). Nor did the Child Care Act permit postadoption agreements. Even though the provisions of the Children's Act are irrelevant in the context of this case, it should be mentioned that some of the comments that Sutherland J made about postadoption agreements indicate that he had neglected to consult, or had misread, section 234 of the Children's Act. This section, which regulates postadoption agreements, provides (1) The parent or guardian of a child may, before an application for the adoption of a child is made in terms of section 239, enter into

2015 Annual Survey 413 a postadoption agreement with a prospective adoptive parent of that child to provide for — (a) communication, including visitation between the child and the parent or guardian concerned and such other person as may be stipulated in the agreement; and (b) the provision of information, including medical information, about the child, after the application for adoption is granted. ... (4) A court may, when granting an application in terms of section 239 for the adoption of the child, confirm a postadoption agreement if it is in the best interests of the child. [Emphasis added.] The emphasised portions of the section indicate that a postadoption agreement must be concluded before the adoption order is made. It cannot, as Sutherland J suggests, be concluded after the adoption order has been granted. After the adoption has been granted the High Court may, in its capacity as upper guardian of all minors, make any order that is in the best interests of the child, including an order that a biological parent may retain contact with or maintain the child (see, for example, Haskins v Wildgoose [1996] 3 All SA 446 (T)). However, the foundation of the order the High Court makes in its capacity as upper guardian is the common law, not the provisions of the Children's Act relating to post adoption agreements as Sutherland J stated. GT v CT & others [2015] 3 All SA 631 (GJ) is another perplexing judgment relating to adoption. In this case, the biological parents of two children (ET and IT) divorced in 2005. The children's mother (CT) subsequently married GT, who adopted ET and IT in 2007. Despite the adoption, CT consistently prevented GT from exercising his parental responsibilities and rights in respect of his adopted children. Furthermore, the children's biological father retained contact with ET, and ET continued to view him as a father figure. The biological father did not have a relationship with IT, born while CT and GT were living together before they married. The marriage between CT and GT broke down shortly after GT adopted the children. When CT and GT divorced in 2008, care of the children was awarded to CT. After the divorce, CT denied GT contact with the children even though the divorce order awarded him rights of contact. CT's obstructive attitude resulted in the deterioration of the parentchild relationship between GT and the children. Some six years after the divorce, GT instituted proceedings to have the adoption orders in respect of IT and ET rescinded, despite the fact that section 243(2) of the Children's Act provides that an application for rescission 'must be lodged

2015 Annual Survey 414 within a reasonable time but not exceeding two years from the date of the adoption'. GT alleged that rescission would be in the children's best interests because it would enable their biological parents legally to resume their parental roles. Surprisingly, the application succeeded. Mokgoatlheng J pointed out that, generally, the High Court's inherent power in terms of section 173 of the Constitution of the Republic of South Africa, 1996 ('the Constitution'), to regulate its own processes cannot be exercised in conflict with the terms of an Act (para [8]). However, based on the constitutional injunction that '[a] child's best interests are of paramount importance in every matter concerning the child' (s 28(2) of the Constitution), and the High Court's power as upper guardian of all minors to make any order which is in the interests of the child, the court held that it had jurisdiction. The judge concluded that the court can entertain an application for rescission of an adoption order even after the twoyear period has expired (paras [8]–[18]). This is so, the judge held, because 'it is trite' that the paramountcy of the child's best interests 'trump[s] the prescriptive peremptory injunction of section 243(2) of the Act' as the Constitution must prevail over legislation (paras [14]–[18]; the quoted portions appear in para [14]). Consequently, the provisions of section 243(2) of the Children's Act 'are superseded by and subservient to' the Constitution (para [16]). In view of CT's consistent refusal to allow GT to exercise parental responsibilities and rights, and her sole exercise of parental responsibilities and rights, which amounted to 'de facto nonrecognition' of the consequences of the adoption, Mokgoatlheng J found that the adoption was fictional (paras [44] [45]). He referred to section 242 of the Children's Act, which provides that adoption terminates all parental responsibilities and rights a parent has in respect of his or her child, and confers full parental responsibilities and rights on the adoptive parent. He held that, although the adoption had legally terminated the parental responsibilities and rights of the children's biological parents, and had conferred them solely on GT, CT had 'de facto ... never relinquished her parental rights, obligations and responsibilities' (para [46]; see also para [52]). He stated that the 'nucleus of the family unit' between CT and the children had never been terminated (para [47]). De facto, the children's biological father had also not relinquished his parental responsibilities and rights because he had maintained contact with ET (para [48]).

2015 Annual Survey 415 Mokgoatlheng J also held that the part of the divorce order that had awarded care of the children to CT was 'legally untenable' and 'a nullity', because CT's parental responsibilities and rights were terminated by the adoption (para [53]). He pointed out that the Family Advocate, Family Counsellor, and social worker who investigated the children's position in the current proceedings were of the view that rescission of the adoption orders would be in the best interests of the children, 'because of the overriding fact that the parental rights, obligations and responsibilities which the biological parents have continuously exercised in respect of their biological children should be lawfully restored to them' (para [54]; see also para [55]). Mokgoatlheng J concluded that [t]he formality of setting aside the adoption orders will afford the first and second respondents [the children's biological parents] and the children an opportunity to strengthen their already existing parentchild relationship, because [CT] ... has de facto always had the custody of the children whilst regarding the second respondent [the children's biological father] his legal guardianship over the children will be restored. (para [61]) Furthermore, 'the de facto family unit existing between the children and their biological parents will be lawfully formalised' (ibid). The judge, accordingly, ordered the rescission of the adoption orders (para [62]). The judgment contains a litany of errors — far too many to discuss within the limited scope of this chapter. Only a few glaring errors are mentioned. (For a detailed analysis and criticism of the judgment, see Themba Skosana & Sandra Ferreira 'Stepparent adoption gone wrong: GT v CT [2015] 3 All SA 631 (GJ)' (2016) 19 PER/PELJ 1–23.) First, despite the law on this issue being very clear, Mokgoatlheng J laboured under the misconception that a legislative provision automatically ceases to operate, and can accordingly be ignored, as soon as a court arrives at the conclusion that the particular provision violates the Constitution. He held that the provisions of section 243(2) of the Children's Act were 'superseded by' the Constitution (para [16]). The judge based this view on section 2 of the Constitution, which states that the Constitution 'is the supreme law of the Republic' and that 'law ... inconsistent with it is invalid' (see paras [14] [15]). He appears to be ignorant of the wellestablished rule that legislation applies unless, and until, declared invalid for being inconsistent with the Constitution. Furthermore, if a division of the High Court or the Supreme Court

2015 Annual Survey 416 of Appeal makes an order declaring legislation unconstitutional, the order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court (s 172(1) and (2)(a) of the Constitution). In GT, the constitutionality of section 243(2) was not challenged, and an order of constitutional invalidity was not sought, nor did the court make such an order. Instead, Mokgoatlheng J simply ignored section 243(2) because he was of the view that it violated the paramountcy of the child's best interests. As the issue of the constitutionality of the section was never properly placed before the court, the court should not have entertained the application for rescission outside the twoyear period (see also Skosana & Ferreira above 10 14). Secondly, Mokgoatlheng J appears to have been confused about the weight that should be attached to the constitutional provision that the child's best interests are paramount. In paragraph [14] he, incorrectly, held that 'it is trite' that the paramountcy of the child's best interests 'trump[s] the prescriptive peremptory injunction of section 243(2) of the Act' — in other words, no other interest can compete with the child's best interests. However, in paragraph [36] he states, correctly, that '[t]he fact that the best interests of the child are paramount does not imply that the child's best interest right is absolute', and in paragraph [37] he refers to S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC), 2007 (12) BCLR 1312 where the Constitutional Court held that the paramountcy of the child's best interests does not mean that the child's interests may not be 'subject to limitations that are reasonable and justifiable in compliance with section 36 of the Constitution' (para [25] of S v M). (On this point, see also Skosana & Ferreira above 10–11.) Thirdly, like Sutherland J in JT, Mokgoatlheng J failed to apply the correct adoption legislation. ET and IT were adopted in 2007 when the Child Care Act still governed adoption (see above). In terms of section 20(1), read with section 17(c), of the Child Care Act, a stepparent adoption did not terminate the responsibilities and rights between the child and the parent to whom the stepparent was married. Therefore, all of the statements Mokgoatlheng J made about CT having legally lost her parental responsibilities and rights because her husband had adopted her child, are wrong. CT always retained full parental responsibilities and rights in respect of IT and ET. For the same reason, Mokgoatlheng J's view that the part of the divorce order that awarded care of the children to CT was 'legally untenable' and 'a

2015 Annual Survey 417 nullity' because CT's parental responsibilities and rights had been terminated by the adoption, is incorrect. (See also Skosana & Ferreira above 13–14.)

Child and youth care centres In Justice Alliance of South Africa & another v Minister of Social Development, Western Cape & others [2015] 4 All SA 467 (WCC), the court had to decide whether certain centres which had operated as schools of industries and reform schools under the Child Care Act fell within the scope of child and youth care centres as envisaged by the Children's Act. Based on its analysis of the legislative provisions, the court concluded that the centres fell within the ambit of the Children's Act and must be regarded as having been established and/or maintained as secure child and youth care centres in terms of the Children's Act. For purposes of family law the most interesting part of the judgment relates to the issue of whether children who are in alternative care may be transferred to more restrictive care, as had happened in the present case since the former schools of industries and reform schools had simply been 'repurposed' as child and youth care centres. The court pointed out that section 171(1) of the Children's Act provides that the provincial head of the Department of Social Development may transfer a child in alternative care from one child and youth care centre or person to another. However, if the child is to be transferred from the care of a person to a child and youth care centre, or from the care of a child and youth care centre to a secure care or more restrictive child and youth care centre, the transfer may not be carried out without ratification by a Children's Court (s 171(6)). Before the provincial head makes an order for the child's transfer, a designated social worker must consult with: (a) the child, taking into consideration his or her age, maturity and stage of development; (b) the child's parent, guardian or caregiver; (c) the child and youth care centre or person in whose care or temporary safe care the child has been placed; and (d) the child and youth care centre, or the person to whom the child is to be transferred (s 171(4)). From these provisions, the court deduced that the legislature intended to ensure that, when a child was moved to a more secure facility, this was done on an individualised basis; that the environment was conducive to the child; and that the child was 'compatible with that environment' (para [41]). Therefore, 'the legislator was

2015 Annual Survey 418 alive to the notion that mixing of children — those in need of care with children awaiting trial/convicted/sentenced/diverted — would not be conducive to their respective care, development, rehabilitation and reintegration into society' (ibid). The court held that separately caring for, and housing children who are in alternative care in a centre where children who are awaiting trial or have been convicted, sentenced or diverted in terms of the criminal justice system are also housed, does not offer a solution to the adverse consequences of mixing the children in the same centre (para [42]). For instance, the selfworth and selfesteem of a child in alternative care would be lowered (ibid). The court concluded that placing children who are in alternative care in a more secure facility violates their right to freedom and security of the person (s 12 of the Constitution). It exposes them to 'a culture of induction into gangs by use of force, violence and duress as well as riotous behaviour' (para [43]). It also deprives them of their liberty, and might constitute a form of detention without trial (ibid). In its capacity as the upper guardian of all minors, the court made an order that the placement of those children who had been placed in more secure care child and youth care centres should immediately be considered afresh (para [44]). The court's concern for the children placed in alternative care, and its emphasis on the need for an individualised consideration of each child's needs and circumstances, is welcomed. It is in keeping with the Constitutional Court's view that a childcentred approach must be followed in all matters involving children, and that the court must undertake 'a close and individualised examination of the precise reallife situation of the particular child involved' (S v M above; see also J v National Director of Public Prosecutions (Childline South Africa & others as amici curiae) 2014 (7) BCLR 764 (CC), 2014 (2) SACR 1).

Termination of parental responsibilities and rights In GM v KI 2015 (3) SA 62 (GJ), an unmarried mother sought termination of all the parental rights of the father of her child in terms of section 28 of the Children's Act subject to retention of the father's parental responsibilities. In the alternative, she requested the court to make a draft order relating to alternative relief, an order of court. The judgment does not set out all the terms of the draft order. However, it does indicate that the draft order 'did not seek to separate rights from responsibilities' (para [15]). The child's parents never lived together, nor did the father maintain

2015 Annual Survey 419 the child or take any interest in its wellbeing. However, the father was identified in the child's birth entry in terms of the Births and Deaths Registration Act 51 of 1992. Approximately one year after the child's birth, the parents' relationship terminated. The child's father was untraceable at the time that the application was brought. Although the issue of whether the requirements in section 21(1)(b)(i) to (iii) of the Children's Act are cumulative remains unsettled (see the discussion of KLVC v SDI & another (above), the court assumed that they are not, for it held that the father acquired full parental responsibilities and rights when he consented to being identified as the child's father for purposes of registration of the child's birth in terms of the Births and Deaths Registration Act (para [3]). The court's statement that an unmarried father can acquire parental responsibilities and rights by contributing to his child's maintenance as envisaged in section 21(1)(b)(iii) of the Children's Act also indicates that it does not consider the requirements to be cumulative (para [19]). The court also held that parental responsibilities and rights are opposite sides of a coin and, for the most part, exist concomitantly. Furthermore, it is 'neither desirable nor practicable to attempt to define which of the incidence [sic] of the parental condition is "right" and which "obligation"' (paras [9]–[11] [14]; the quoted portion appears in para [10]). Moreover, because section 28 of the Act refers to termination, extension, suspension or circumscription of any or all of a person's parental responsibilities and rights, it is clear that the legislature did not intend to permit a general suspension or termination of either responsibilities or rights alone (paras [12]–[14]). The court held that, as the alternative relief embodied in the draft order did not seek to separate rights from responsibilities and linked the suspension of the father's parental responsibilities and rights to the child's maintenance, the alternative relief could be accommodated in terms of section 28(1)(a) of the Act (paras [15]–[17]). This section provides that the court may suspend any or all of the parental responsibilities and rights of a specific person 'for a period'. The quoted phrase suggests that the suspension can operate for a specified period, or be linked to the occurrence of a future event (para [16]). The court decided to link the operation of the suspension to an application for maintenance by, or on behalf of, the child. Accordingly it suspended the father's parental responsibilities and rights until an application for maintenance was

2015 Annual Survey 420 made by, or on behalf of, the child (paras [18] [21], read with para 1 of the order). It appointed the mother sole guardian of the child for the duration of the suspension of the father's parental responsibilities and rights (para [21] read with para 2 of the order). Matthias & Zaal (Carmel R Matthias & F Noel Zaal 'Suspension of parental responsibilities and rights of an unmarried father' 2016 TSAR 194–5) laud the court for the remedy it created to assist the single, primary caregiver parent. They consider the suspension of the father's parental responsibilities and rights until an application for maintenance was made by, or on behalf of, the child to be an 'ingenious way' of overcoming the limitation imposed on the court's powers by the phrase 'for a period' (201). Their praise of the remedy the court has crafted is supported.

Divorce Applications pending divorce BR & another v TM; In re: LR [2015] 4 All SA 280 (GJ) concerns a dispute regarding paternity and parental responsibilities and rights pending determination of a divorce action. The court held, incorrectly, that the only applications that may be launched pending divorce are those falling within the definition of 'divorce action' in section 1 of the Divorce Act 70 of 1979. The decision is discussed above. SW v SW & another 2015 (6) SA 300 (ECP) also deals with the issue of the High Court's jurisdiction to decide an application pending divorce. In this case, the question arose whether the High Court has jurisdiction to decide an application in terms of rule 43 of the High Court Rules in respect of the primary care and maintenance of the minor children of spouses whose divorce action was pending before the Regional Court. The High Court held that relief cannot be granted in terms of rule 43, but that the court can exercise its inherent power as upper guardian of all minors to make an order that is in the best interests of the children (paras [17] [19] [20]). The party who seeks the order must show that considerations of urgency justify intervention by the High Court, and that the intervention is necessary to protect the minors' best interests (para [20]). In order to avoid a multiplicity of suits with the concomitant risk of jurisdictional conflict, the High Court will not lightly exercise its jurisdiction as upper guardian where divorce proceedings are pending in another court (paras [21] [22]).

2015 Annual Survey 421

Deed of settlement In South Africa, regulating the consequences of divorce by means of a settlement agreement (deed of settlement, consent paper) is accepted practice. Section 7(1) of the Divorce Act empowers the court that grants a decree of divorce to make an order in accordance with a written agreement between the parties. The section does not stipulate that the deed of settlement must be incorporated into the divorce order. In the past, the various divisions of the High Court did not follow a uniform practice with regard to incorporation of a settlement agreement. In most divisions, the settlement agreement was incorporated into the divorce order, and turned into an order of court. However, in KwaZuluNatal the agreement was not incorporated (Practice Directive 15 of the KwaZuluNatal High Court). Instead, those clauses of the agreement that the court considered readily enforceable were embodied in the divorce order. In Thutha v Thutha 2008 (3) SA 494 (TkH), Alkema J supported the approach followed in KwaZuluNatal, and held that the practice of incorporating a deed of settlement into a court order should not be followed in the Eastern Cape. (Cf Tasima (Pty) Ltd v Department of Transport & others 2013 (4) SA 134 (GP), where the North Gauteng Division of the High Court adopted a similar approach even though settlement agreements had previously been made orders of court in that division.) In Eke v Parsons 2015 (11) BCLR 1319 (CC), 2016 (3) SA 37 the Constitutional Court rejected the formalistic approach followed in Thutha (above) and pointed out that [n]egotiations with a view to settlement may be so wideranging as to deal with issues that, although not strictly at issue in the suit, are related to it ... and are of importance to the litigants and require resolution. Short of mere formalism, it does not seem to serve any practical purpose to suggest that these issues should be excised from an agreement that a court sanctions as an order of court (para [19]). Following a formalistic approach may compel parties to enter into a separate agreement containing the terms that have not been incorporated in the court order, or the rejection of some terms may result in the entire settlement collapsing, which would not benefit either of the parties or the administration of justice (paras [20]–[23]). Although the purpose of an order relating to a settlement agreement is usually to enable the party in whose favour the order operates to enforce it through execution or contempt proceedings, 'the efficacy of settlement orders cannot

2015 Annual Survey 422 be limited to that' because the court may 'be innovative in ensuring adherence to the order' (para [24]). It may, for example, first issue a mandamus and consider committal for contempt in the event of failure to comply with the mandamus. Both the mandamus and the order for committal could be sought by supplementing the papers already before the court, instead of initiating a full, new court case (ibid). Because a settlement agreement and settlement order would usually have disposed of the underlying dispute, litigation preceding enforcement of the settlement order would relate to noncompliance with the order, and not to the merits of the original underlying dispute. Consequently, the court would be spared the effort of determining the underlying dispute, which might have entailed a protracted contested hearing (para [32]). Therefore, the Constitutional Court concluded that a settlement agreement may be made an order of court even if enforcement of some of the terms of the agreement may require further recourse to court (paras [32] [33] [35]). However, the Constitutional Court warned that the court must not be mechanical in adopting the terms of a settlement agreement (paras [25] [34]). It may not make a settlement agreement an order of the court unless: the parties are involved in litigation about the particular matter(s) that form the subject of the agreement; the terms of the agreement accord with the Constitution, the law and public policy; and the agreement holds 'some practical and legitimate advantage' (paras [25] [26]). In addition, the Constitutional Court held that making a settlement agreement an order of court changes the status of the parties' rights and responsibilities because the terms of the agreement become an enforceable court order that will be interpreted like any other court order (paras [29] [31]). However, because the order follows on a settlement agreement, the contractual basis of the agreement remains intact and the principles of the interpretation of contracts will be applied in order to determine the meaning of the agreement (para [30]). The dicta of the Constitutional Court on the incorporation of settlement agreements are welcomed. They are realistic, pragmatic, and in keeping with the parties' needs. Moreover, even though the Constitutional Court did not hold that suitable settlement agreements must be incorporated, its decision should, surely, result in a uniform practice in all divisions of the High Court.

2015 Annual Survey 423

Division of accrual on divorce On the date for the determination of the accrual in a spouse's estate, see the discussion of Schmitz v Schmitz above.

Pension interests on divorce In Motsetse v Motsetse [2015] 2 All SA 495 (FB), the court had to decide whether the joint estate of divorcing spouses automatically includes the spouses' pension interests. The issue of whether, on divorce, a spouse's pension interest is automatically included in his or her estate, or in the joint estate if the spouse is married in community of property, has been in dispute in several cases. In the majority, the courts have held that pension interests are automatically included (Maharaj v Maharaj & others 2002 (2) SA 648 (D); Fritz v Fundsatwork Umbrella Pension Fund & others 2013 (4) SA 492 (ECP); Macallister v Macallister [2013] JOL 30404 (KZD); Kotze v Kotze [2013] JOL 30037 (WCC)). However, in Sempapalele v Sempapalele 2001 (2) SA 306 (O), it was held that pension interests are not ordinarily part of the joint estate, but that they may be taken into account upon divorce. If they are taken into account, they must be dealt with expressly at the time of the divorce. In ML v JL (3981/2010) [2013] ZAFSHC 55 (25 April 2013), a single judge sitting in the Free State Division of the High Court made statements that seem to support the view in Sempapalele. In Motsetse, a twojudge bench in the same division of the High Court sitting as a court of appeal, rejected ML v JL and supported the view in Maharaj and Fritz (paras [17]–[21] [23]). Jordaan J and Reinders AJ held that section 7(7)(a) of the Divorce Act is clear and unambiguous in stating that a spouse's pension interest 'shall ... be deemed to be part of his assets' for purposes of determining the patrimonial benefits to which the spouses may be entitled (para [16]). Consequently, if a settlement agreement provides for a blanket division of a joint estate, or if a court orders a blanket division of a joint estate, all pension interests of both spouses are deemed part of the joint estate (para [22]). The judgments in Maharaj, Fritz, Macallister, Kotze and Motsetse are preferable to the judgment in Sempapalele. (See also Jacqueline Heaton & Hanneretha Kruger South African Family Law 4 ed (2015) 130–1; Jacqueline Heaton 'The proprietary consequences of divorce' in Jacqueline Heaton (ed) Law of Divorce and Dissolution of Life Partnerships (2014) 74 77; L Neil

2015 Annual Survey 424 van Schalkwyk 'Sempapalele v Sempapalele 2001 2 SA 306 (O). Egskeiding — Moet 'n pensioenbelang verdeel word waar die skikkingsakte niks meld nie?' (2002) 35 De Jure 170 173 175; JC Sonnekus 'Verbeurdverklaring van voordele — Welke voordele? JW v SW 2011 1 SA 545 (GNP)' 2011 TSAR 787 793 794–5; Motseotsile Clement Marumoagae 'A critical discussion of a pension interest as an asset in the joint estate of parties married in community of property' (2014) 1 Speculum Juris 55 61 68; MC Marumoagae 'A nonmember spouse's entitlement to the member's pension interest' (2014) 17 PER/PELJ 2488 2500–10; but see Johann Davey 'Pension interest and divorce. K v K and Another — a critique' (2013) Sept De Rebus 26 who supports Sempapalele.) Finally, a logical conclusion of the court's finding that all pension interests of both spouses are deemed to be part of the joint estate if the spouses' settlement agreement provides for a blanket division of a joint estate or the court orders a blanket division of the joint estate, is that the value of spouses' pension interests is automatically included for purposes of determining the proprietary consequences even if the divorce order does not mention the pension interest at all. This should be the position in respect of all matrimonial property systems to which section 7(7)(a) of the Divorce Act applies (see also Heaton & Kruger above Law 134; Heaton above 78). Heaton (ed) Law of Divorce and Dissolution of Life Partnerships.

Redistribution of assets on divorce Regarding the constitutionality of restricting the court's power to order redistribution of assets in terms of section 7(3) of the Divorce Act to certain marriages concluded before 1 November 1984 in the case of white, 'coloured' and Asian spouses, or 2 December 1988 in the case of African spouses, see SB v RB [2015] 2 All SA 232 (ECLD, George) below.

Taking trust assets into account on divorce WT & others v KT 2015 (3) SA 574 (SCA) was mentioned in 2014 Annual Survey 407. The case concerns the controversial issue of whether assets in an alter ego trust can be taken into account on divorce. In the past, our courts have held that the value of the assets of a trust that has been used as the alter ego of one of the spouses can be taken into account in those marriages subject to complete separation of property where the

2015 Annual Survey 425 court has the power to redistribute assets in terms of section 7(3) of the Divorce Act (Jordaan v Jordaan 2001 (3) SA 288 (C); Badenhorst v Badenhorst 2006 (2) SA 255 (SCA); Grobbelaar v Grobbelaar (T) (case 26600/98), cited in Badenhorst v Badenhorst (above); Smith v Smith & others (SECLD) S(case 619/2006), cited in RP v DP & others 2014 (6) SA 243 (ECP)). However, conflicting decisions have been handed down on the issue of whether the court may take the value of the assets of an alter ego trust into account in marriages to which section 7(3) does not apply. In WT, the spouses were married in community of property. On the advice of his father, the husband ('WT') created a trust approximately two years before the spouses married. At that stage, WT and KT (his future wife) had been living together for some two years. One of the main assets of the trust was the future matrimonial home, which was acquired soon after the trust was established. WT and his brother were the trustees of the trust. The capital beneficiaries of the trust were to be selected by the trustees from the ranks of WT's children and their legal descendants, any trust created for any such beneficiaries and, if none of the above beneficiaries was alive at the vesting date of the trust, WT's heirs. WT controlled the joint estate and the trust during the subsistence of the marriage. His brother was a supine cotrustee who allowed WT exclusively to control the trust. When WT sued KT for divorce, KT filed a counterclaim relating to the scope of the assets of the joint estate. She contended that the assets of the trust, alternatively, the matrimonial home, formed part of the spouses' joint estate. She alleged that she had been led to believe that the immovable property was registered in the name of the trust solely to protect it from WT's business creditors. The trial court found that due to representations WT had made to KT, KT believed that all their assets formed a unit, which they shared equally. The court concluded that WT and KT had effectively agreed, before their marriage, that they would own the trust property equally as beneficial owners even though they were not beneficiaries of the trust, and that the subsequent marriage in community of property constituted a continuation of this situation. 'On the basis of the discretion exercised ... in Badenhorst v Badenhorst', the court also held that even though the spouses were married in community of property, it had a discretion to decide whether or not particular assets belonged to one of the spouses (para [25] of the judgment of the Supreme

2015 Annual Survey 426 Court of Appeal in WT v KT). The trial court concluded that, since the trust was simply the alter ego of WT, which he had controlled for his personal benefit in order to amass wealth for himself, the trust assets were in fact his personal assets and formed part of the joint estate. WT appealed against this decision. The appeal was limited to the trial court's factual findings as to whether WT had deceived KT in respect of the reason for registering the immovable property in the name of the trust, and whether the trust was WT's alter ego he used in order to amass wealth for himself. On the facts, the Supreme Court of Appeal rejected the finding of the trial court regarding deceit on the part of WT. It held that there was no evidence that KT was ever deceived into believing that she would be a beneficiary of the trust, or a beneficial owner of trust assets (paras [28] [30]), nor did WT deceitfully create the trust in order to exclude KT from sharing in the immovable property on divorce. The Supreme Court of Appeal specifically relied on the fact that the trust was created before WT and KT married (ibid). The court proceeded to deal with the question of whether it could look behind the veneer of the alter ego trust. It held that 'unconscionable abuse of the trust form through fraud, dishonesty or an improper purpose will justify looking behind the trust form' (para [31]). It emphasised that looking behind the trust veneer should be premised on protecting third parties who transacted with the trust against a breach of the trustees' fiduciary duty (paras [31]–[33]). Consequently, it is not the mere fact that a trust is the alter ego of a trustee that justifies looking behind the trust veneer. The court held that KT lacked standing to request the court to look behind the trust veneer, because the trustees did not owe any fiduciary duty to her as she was neither a beneficiary of the trust nor a third party who had transacted with the trust (paras [32] [33]). Moreover, the Supreme Court of Appeal held that the trial court had incorrectly relied on Badenhorst when it held that it could determine whether particular assets belonged to one of the spouses (para [35]). The Supreme Court of Appeal pointed out that Badenhorst related to redistribution of assets in terms of section 7(3) of the Divorce Act, which applies only to some marriages subject to complete separation of property. In the present case, the spouses were married in community of property. In such a marriage 'the court is generally confined merely to

2015 Annual Survey 427 directing that the assets of the joint estate be divided in equal shares'; it does not have a discretion comparable to the one afforded to the court by section 7(3) of the Divorce Act (ibid). In the result, the Supreme Court of Appeal upheld the appeal and declared that the assets of the trust did not form part of the joint estate (paras [38] [40]). The finding of the Supreme Court of Appeal that the discretion in section 7(3) of the Divorce Act cannot be used as the foundation to argue that courts have a general discretion to take trust assets into account in order to redistribute assets, is correct. Section 7(3) affords the court a discretion in certain types of marriage only (ie, those subject to complete separation of property by white, 'coloured' or Indian spouses before 1 November 1984, or by African spouses before 2 December 1988). However, the fact that the discretion envisaged in section 7(3) is restricted to specific marriages does not mean that the court is precluded from taking the value of trust assets into account in other marriages. In all marriages, regardless of the matrimonial property system that operates in the marriage, the court has the power to look behind the trust veneer, provided that the requirements for doing so are met. Notably, the Supreme Court of Appeal did not hold in WT that the court cannot look behind the trust veneer in marriages in community (or in other marriages that fall outside the scope of s 7(3) or to which s 7(3) does apply). Therefore, the judgment should not be interpreted as excluding the possibility that the value of trust assets may be considered if section 7(3) does not apply to a marriage. As an aside, it should be noted that it may well be that, in Badenhorst, the court did not use its discretion in terms of section 7(3) to take the value of trust assets into account, but instead exercised its commonlaw discretion to look behind the trust veneer. This issue will not be pursued here as it falls outside the scope of the present discussion. What is disconcerting about the judgment in WT, however, is the court's restrictive view on when a person has standing to request the court to look behind the trust veneer. Excluding spouses who are neither beneficiaries nor parties who transacted with the trust, prejudices all those divorcing parties whose spouses have been prescient enough not to include them as beneficiaries, and have not allowed them to transact with the trust. Sadly, the court's dictum provides a useful tool to spouses who wish to use alter ego trusts to exclude their spouses from family wealth on divorce.

2015 Annual Survey 428 On WT, see further A van der Linde 'Whether trust assets form part of the joint estate of parties married in community of property: Comments on "piercing of the veneer" of a trust in divorce proceedings. WT v KT 2015 3 SA 573 (SCA)' (2016) 79 THRHR 165.

Informal amendment of matrimonial property system SB v RB (above) confirms the principle that an informal amendment of spouses' matrimonial property system is invalid and unenforceable even as between the spouses. Perhaps the most interesting part of the judgment is the court's criticism of the limited availability of the judicial discretion to redistribute assets on divorce in terms of section 7(3) of the Divorce Act. Although the restrictions on the judicial discretion to redistribute assets have been criticised by many authors (see the references below in this discussion), this is the first time a court has raised extensive criticism albeit in obiter dicta). For this reason the discussion below focuses on the facts and legal aspects that are relevant in this context. Six years after the parties married subject to complete separation of property, the husband wrote a letter to the wife in which he offered to change their matrimonial property system to one in community of property. The wife accepted the offer. When the spouses consulted an attorney about a formal change of their matrimonial property system, they were incorrectly advised that they would have to get divorced and remarry to effect the change. The spouses did not wish to divorce and remarry at that stage. Instead, they orally agreed that they would conduct the marriage as if it was in community of property. A few years later, the wife sued for divorce. She also claimed that the parties had agreed to form a joint estate, and that she was entitled to half of that estate. Cloete J pointed out that the immutability principle dictates that the matrimonial property system which applies at the time of the marriage remains fixed during the subsistence of the marriage, unless the spouses obtain court approval in terms of section 21(1) of the Matrimonial Property Act 88 of 1984 to change to a different system (paras [30]–[32]). In the present case, the spouses had failed to change their matrimonial property system in terms of section 21(1). Therefore, their marriage remained subject to complete separation of property and their subsequent agreement regarding community of property was unenforceable

2015 Annual Survey 429 even as between them (para [33]; cf Union Government (Minister of Finance) v Larkan 1916 AD 212; Honey v Honey 1992 (3) SA 609 (W)). Consequently, the wife's claim stood to be dismissed (para [37]). In obiter dicta, Cloete J pointed out that the court could not assist the wife by exercising its judicial discretion to redistribute assets on divorce in terms of section 7(3) of the Divorce Act because, in the case of a civil marriage, this discretion applies only if the marriage was concluded subject to complete separation of property before 1 November 1984 (paras [34] [37]; in the case of civil marriages between African persons, the cutoff date is 2 December 1988: s 7(3)(b) of the Divorce Act). The judge considered the distinction based on the date of the marriage to be absurd. The absurdity of the current position is also illustrated by the fact that the discretion to redistribute assets on divorce is available in all customary marriages (para [34]; cf Gumede v President of the Republic of South Africa & others 2009 (3) SA 152 (CC), 2009 (3) BCLR 243). Furthermore, because life partners can establish a universal partnership relatively easily, they may be in a better position than spouses who enter into civil marriages subject to complete separation of property after the cutoff date (para [34]). Cloete J stated that the unavailability of the judicial discretion to redistribute assets in a case like the present one flies in the face of the equality principle enshrined in section 9 of the Bill of Rights, and provides 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 (para [37]). She indicated that legislative reform was required to bring the position in line with the Constitution (ibid). This call is heartily supported. Further on the possible unconstitutionality of section 7(3) of the Divorce Act, see 2009 Annual Survey 461; Amanda Barratt (ed) Law of Persons and the Family (2012) 351–2; Heaton & Kruger above 141–3; June D Sinclair assisted by Jacqueline Heaton The Law of Marriage vol 1 (1996) 143–6; Brigitte Clark & Beth Goldblatt 'Gender and family law' in Elsje Bonthuys & Catherine Albertyn (eds) Gender, Law and Justice (2007) 224; Jacqueline Heaton 'Family law and the Bill of Rights' in Bill of Rights Compendium (1998 looseleaf) para 3C26; Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 107; June Sinclair 'Family rights' in Dawid van Wyk, John Dugard, Bertus de Villiers & Dennis Davis (eds) Rights and Constitutionalism. The

2015 Annual Survey 430 new South African Legal Order (1994) 549–51; Robbie Robinson & Debra Horsten 'The quantification of "labour of love": Reflections on the constitutionality of the discretion of a court to redistribute capital assets in terms of section 7(3)–(6) of the South African Divorce Act' (2010) 24/1 Speculum Juris 96 113–6; L Neil van Schalkwyk 'Gumede v President of the Republic of South Africa and Others 2009 (3) SA 152 (KH)' (2010) 43 De Jure 176 182–8; Amanda Barratt 'Whatever I acquire will be mine and mine alone: Marital agreements not to share in constitutional South Africa' (2013) 130 SALJ 688 691.

Informal antenuptial contract On the validity of an informal antenuptial contract as between the parties inter se, see the discussion of Schmitz v Schmitz above.

Life partnerships In Steyn v Hasse & another 2015 (4) SA 405 (WCC), a woman (S) who had intermittently lived with a German man (H) claimed that she should not be evicted from the man's house in South Africa. For approximately four years, H had spent around four months per year living with S in South Africa. He lived with his wife in Germany for the rest of the year. After the breakdown of the relationship between S and H, H informed S that she should vacate the property, but she refused to do so. The court a quo ordered S's eviction. S unsuccessfully appealed against the decision. In so far as the relevant family law principles are concerned, the appeal court pointed out that persons who live together do not have an automatic duty to support each other, but that they could enter into an agreement in this regard (paras [17] [26]). In the present case, there was no evidence that H had undertaken a duty to support S (paras [20] [34] [40]), nor did a universal partnership exist between H and S (paras [18] [23]). Therefore, S had no basis for claiming the right to occupy H's house. It should be noted that the court did not deal with the issue of whether the relationship between the parties constituted a life partnership; it called the relationship a 'brief cohabitation relationship' (para [1]), 'romantic relationship' (paras [6] [11] [30] [39] [40]) and 'love relationship' (para [13]). It also pointed out that the court a quo

2015 Annual Survey 431 was cautious not to label the nature of the relationship of the parties, but concluded that it resembled no more than that between a man and mistress or even concubinage between a married man and his mistress (para [23]). This, indeed, seems to be the apt description for the relationship between H and S.

Maintenance Of surviving spouse Friedrich & others v Smit NO & others [2015] 4 All SA 805 (GP) deals with the issue of whether a widow was entitled to maintenance in terms of the Maintenance of Surviving Spouses Act 27 of 1990. The judgment mainly concerns the administration of estates. It is discussed in the chapter on The Law of Succession (Including Administration of Estates). Postdivorce spousal maintenance On postdivorce maintenance for a party to a Muslim marriage, see the discussion of Rose v Rose & others [2015] 2 All SA 352 (WCC) below.

Marriage Customary marriage In Jezile v S (National House of Traditional Leaders & others as amici curiae) [2015] 3 All SA 201 (WCC), the court dismissed an appeal against the conviction of a 28year old man on criminal charges of human trafficking, rape, assault with intent to cause grievous bodily harm, and common assault. The man had forcibly 'married' a fourteenyearold girl by using an aberrant form of the customary practice of ukuthwala. The court held that 'it cannot be countenanced that the practices associated with the aberrant form of ukuthwala could secure protection under our law' (para [95]). The case is discussed in the chapter on Criminal Law.

Muslim marriage Rose v Rose & others (above) concerns the consequences of dissolution of a Muslim marriage. R entered into a civil marriage with ER. During the subsistence of this marriage, R also entered into a Muslim marriage with RR. After the Muslim marriage had

2015 Annual Survey 432 been terminated by the Muslim Judicial Council, RR claimed postdivorce maintenance from R in terms of section 7(2) of the Divorce Act until her death or remarriage. She also claimed an order relating to half of R's pension interest in terms of section 7(8) of the Act. After close of pleadings, the parties requested the court to decide two questions of law: (a) Whether the Muslim marriage between R and RR was valid despite the existence of the civil marriage between R and ER; and (b) whether the existence of the civil marriage precluded RR from obtaining relief in respect of the proprietary consequences of her marriage to R. In respect of the first question, the court cited cases where the Constitutional Court has held that Muslim marriages are not recognised in our law, except for specific purposes such as intestate succession and maintenance claims by surviving spouses (paras [22]–[25]). Relying on these cases, Bremridge AJ concluded that the marriage between R and RR was invalid (paras [28] [61]). The first question was, accordingly, answered in the negative although the court did not consider the existence of the civil marriage to be the reason for the invalidity of the Muslim marriage. In respect of the second question, Bremridge AJ invoked the reasoning in Daniels v Campbell NO & others 2004 (5) SA 331 (CC), 2004 (7) BCLR 735 and Hassam v Jacobs NO & others 2009 (5) SA 572 (CC), 2009 (11) BCLR 1148 where it was held that the central question with regard to applying legislation to a relationship is not whether the relationship constitutes a valid marriage, but whether the protection the legislation intends to confer on a person should be withheld considering the type of relationship in which the person is involved (paras [19] [20] [30]). In Daniels and Hassam, the Constitutional Court concluded that a party to a Muslim marriage qualifies as a 'spouse' for purposes of the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act even though the Muslim marriage is invalid. Bremridge AJ pointed out that the term 'marriage' is not defined in the Divorce Act (para [43]). He stated that it would be anomalous to hold that a party to a Muslim marriage qualifies as a 'spouse' for purposes of the Intestate Succession Act and the Maintenance of Surviving Spouses Act, but that a Muslim marriage does not qualify as a 'marriage' for purposes of the Divorce Act (paras [45]–[49]). He pointed out that our courts have held that rule 43 of the High Court Rules can be invoked in respect of a Muslim marriage if a

2015 Annual Survey 433 party to the marriage has instituted proceedings to have the marriage declared valid in terms of South African law or to have the non recognition of Muslim marriages declared unconstitutional, and to have the party's Muslim marriage dissolved by divorce in terms of the Divorce Act (paras [36]–[41]; see AM v RM 2010 (2) SA 223 (ECP); Hoosein v Dangor [2010] 2 All SA 55 (WCC)). Bremridge AJ held that by seeking postdivorce maintenance and a share of her husband's pension, RR was challenging the legal effect of the divorce that had been granted in terms of Islamic law. Consequently, the Islamic divorce did not constitute a bar to 'the current divorce action' (paras [38] [39]; the quoted phrase appears in para [39]). Therefore, Bremridge AJ concluded that the Divorce Act could apply to the dissolution of a Muslim marriage (para [51]). He stated that the existence of the civil marriage between R and ER rendered the Muslim marriage between R and RR polygynous (paras [52] [58]). Relying on Hassam, he held that distinguishing between the parties to a monogamous Muslim marriage and a polygynous Muslim marriage for purposes of application of the Divorce Act is constitutionally untenable (paras [53]–[57]). He, therefore, concluded that the existence of the civil marriage was not a bar to RR's claims (paras [58] [61] [63]). Consequently, he answered the second stated question in the negative as well. The finding in Rose is clearly incorrect. First, it is trite that civil marriages are monogamous. A marriage that a party to an existing civil marriage concludes with another person is void. This rule applies regardless of whether the purported subsequent marriage is a civil, customary, or Muslim marriage. Therefore, the Muslim marriage in Rose was not simply a marriage that was not recognised by South African law, as was the case in Daniels and Hassam; it was a void marriage. Because the marriage was void, there was no marriage at all to which the Divorce Act could have applied. For this reason alone, the second stated question should have been answered in the affirmative (see also Heaton & Kruger above 246). Secondly, it seems that the parties and Bremridge AJ laboured under the mistaken impression that spouses can pick and choose which provisions of an Act they want to apply to their marriage. If section 7(2) and (8) of Divorce Act is to apply to the dissolution of a marriage, the other provisions of the Act must, logically, also apply, unless, of course, some of them are

2015 Annual Survey 434 expressly or by necessary implication restricted to particular instances. Therefore, in Rose, a divorce order should also have been sought (see also Heaton & Kruger above 246). Although Bremridge AJ erroneously refers to the 'current divorce action' in paragraph [39], the remainder of his judgment indicates that a divorce order was never sought in terms of the Divorce Act. Paragraph [14] states this in clear terms: 'Plaintiff [RR] was unable to terminate the Islamic marriage in any court of law in South Africa, in that she was married in terms of Islamic law and not in accordance with the Marriage Act.' Finally, it should be noted that in paragraph [15], Bremridge AJ states that the marriage between R and RR was 'annulled' by the Muslim Judicial Council. However, the rest of the judgment refers to the marriage having been dissolved by divorce. Annulment and divorce are mutually exclusive — annulment refers to the setting aside of an invalid marriage, while divorce relates to the termination of a valid marriage. If the marriage between R and RR was indeed annulled, the judgment in Rose is all the more incomprehensible as no proprietary consequences could have ensued from the marriage. The reference to annulment is probably just a further error in the judgment.

Muslim and Hindu marriages In Osman v Road Accident Fund 2015 (6) SA 74 (GP), the court developed the commonlaw action for loss of support to allow parents in 'Muslim and Hindu cultures' who are dependent on their child to institute a claim for loss of support against the Road Accident Fund if the child is killed as a result of a motor vehicle accident (the quoted phrase appears in paras [20] [24]). The decision is discussed in the chapter on The Law of Delict.

* BLC LLB (UP) LLM (Unisa). Professor of Law in the Department of Private Law, University of South Africa. This material is based on work supported financially by the National Research Foundation. Any opinion, findings and conclusions or recommendations expressed in this material are those of the author and therefore the NRF does not accept any liability in regard thereto. Source: Review of South African Law, Juta's/Annual Survey of South African Law/2015/The law of persons and family law

URL: http://jutastat.juta.co.za/nxt/gateway.dll/jrsa/1573/1611/1623?f=templates$fn=default.htm The law of persons and family law 2015 Annual Survey 393

Jacqueline Heaton *

Legislation The law of persons No applicable legislation or draft legislation was promulgated during the period under review.

2015 Annual Survey 394

Termination of parental responsibilities and rights In GM v KI 2015 (3) SA 62 (GJ), an unmarried mother sought termination of all the parental rights of the father of her child subject to retention of the father's parental responsibilities. The court held that parental responsibilities and rights are opposite sides of a coin and that for the most part they exist concomitantly (para [9]). The court suspended the father's parental responsibilities and rights until an application for maintenance is made by or on behalf of the child. It further appointed the mother sole guardian of the child for the duration of the suspension of the father's parental responsibilities and rights. The decision is discussed below.

2015 Annual Survey 400 © 2018 Juta and Company (Pty) Ltd. Downloaded : Tue May 14 2019 14:07:24 GMT+0200 (South Africa Standard Time) acquisition of parental responsibilities and rights by an unmarried father. He had consented to be identified as LR's father by having paternity tests done and relying on their results, and he contributed to LR's upbringing and maintenance for a reasonable time. (Section 21(1)(b) is quoted above in the discussion of KLVC v SDI & another.) Therefore, the court should have granted the order declaring that BR was LR's biological father, declaring that BR and SR were coholders of full parental responsibilities and rights (including the duty of support) in respect of LR, and awarding primary residency of LR to BR and SR. The only aspect the court could possibly have referred for later determination based on the present evidence, was TM's contact with LR. However, even that issue need not have been referred for later determination by the Divorce Court. KathreeSetiloane J could have, and in my view should have, referred the matter for the hearing of oral evidence before the divorce action was decided by the Divorce Court. This would have resulted in the issue being determined in a much faster and simpler manner, and would have served the best interests of the child far better than the order KathreeSetiloane J made. The judge's view that the only applications that may be launched pending divorce are those that fall within the definition of 'divorce action' in section 1 of the Divorce Act is incorrect in so far as the High Court is concerned. In its capacity as upper guardian of all minors, the High Court may at any time, and regardless of whether divorce (or other) proceedings are pending, decide any matter relating to the best interests of the child. Surely, determining the paternity of a child where paternity tests show who the child's biological father is and the results of those tests are not disputed, is an example of the sort of case the High Court could decide pending a divorce. Furthermore, if divorce proceedings were pending in the Regional Court, instead of the High Court, referring the matter to the Divorce Court would have been even more unwise than the referral was in the present case. Even though KathreeSetiloane J referred to section 6(1) of the Divorce Act, she seems to have lost sight of the implications of some of the words in the section. The section applies only to 'the arrangements made or contemplated for the welfare of any minor or dependent child of the marriage' (emphasis added). Therefore, the section expressly limits the court's power to orders relating to children who were born of the divorcing couple (see also Jacqueline Heaton & Hanneretha

2015 Annual Survey 402 steps would have been avoided if the High Court decided the dispute as to paternity and parental responsibilities and rights before the divorce action was decided.

2015 Annual Survey 407 Regarding Children, 2010 issued in terms of the Children's Act 38 of 2005 as amended by GN R1112 GG 39410 of 13 November 2015).

2015 Annual Survey 411

2015 Annual Survey 417 nullity' because CT's parental responsibilities and rights had been terminated by the adoption, is incorrect. (See also Skosana & Ferreira above 13–14.)

2015 Annual Survey 421

2015 Annual Survey 423

Division of accrual on divorce On the date for the determination of the accrual in a spouse's estate, see the discussion of Schmitz v Schmitz above.

Informal antenuptial contract On the validity of an informal antenuptial contract as between the parties inter se, see the discussion of Schmitz v Schmitz above.

URL: http://jutastat.juta.co.za/nxt/gateway.dll/jrsa/1573/1611/1623?f=templates$fn=default.htm The law of persons and family law 2015 Annual Survey 393

Jacqueline Heaton *

Legislation The law of persons No applicable legislation or draft legislation was promulgated during the period under review.

2015 Annual Survey 394

2015 Annual Survey 402 steps would have been avoided if the High Court decided the dispute as to paternity and parental responsibilities and rights before the divorce action was decided.

2015 Annual Survey 403 under the National Health Act 61 of 2003 (GN R175 GG 35099 of 2 March 2012). These regulations do not prohibit the use of both donor sperm and donor ova for the artificial fertilisation of a single woman. In other words, because of the genetic link requirement in section 294 of the Children's Act, the use of double donor gametes is impermissible in the case of surrogacy, even though it is permissible in other instances of artificial fertilisation. The genetic link requirement was challenged in AB & another v Minister of Social Development (Centre for Child Law as amicus curiae) 2015 (10) BCLR 1228 (GP). The first applicant was a single woman who suffered from a permanent and irreversible condition which prevented her from carrying a pregnancy to term. It also rendered her ova unviable for purposes of her own or any other woman's artificial fertilisation. She wanted to have a child by way of surrogacy, but the genetic link requirement rendered valid surrogacy impossible. She and the Surrogacy Advisory Group (second applicant) challenged the constitutionality of section 294 on the basis that the genetic link requirement violated her rights to equality, dignity, reproductive health care, autonomy, and privacy. The court considered the historical background to the enactment of the provisions of the Children's Act relating to surrogacy and took changing societal views of the concept of 'family' into account (paras [34][39]). Basson J specifically investigated whether genetic lineage should remain significant in defining 'family' (paras [43][46]). She referred to Satchwell v President of the Republic of South Africa & another 2002 (6) SA 1 (CC), 2002 (9) BCLR 986 para [11], where the highest court held Family means different things to different people, and the failure to adopt the traditional form of marriage may stem from a multiplicity of reasons — all of them equally valid and all of them equally worthy of concern, respect, consideration, and protection under law (para [45]). © 2018 Juta and Company (Pty) Ltd.She further pointed out that society does not regard a family that includes an adopted child as less valuable than or different from a familyDownloaded : Tue May 14 2019 14:07:24 GMT+0200 (South Africa Standard Time) where the parents are biologically related to the child. Therefore, '[a] family cannot be defined with reference to the question whether a genetic link between the parent and the child exists' (para [46]).

2015 Annual Survey 407 Regarding Children, 2010 issued in terms of the Children's Act 38 of 2005 as amended by GN R1112 GG 39410 of 13 November 2015).

2015 Annual Survey 411

2015 Annual Survey 417 nullity' because CT's parental responsibilities and rights had been terminated by the adoption, is incorrect. (See also Skosana & Ferreira above 13–14.)

2015 Annual Survey 421

2015 Annual Survey 423

Division of accrual on divorce On the date for the determination of the accrual in a spouse's estate, see the discussion of Schmitz v Schmitz above.

Informal antenuptial contract On the validity of an informal antenuptial contract as between the parties inter se, see the discussion of Schmitz v Schmitz above.

URL: http://jutastat.juta.co.za/nxt/gateway.dll/jrsa/1573/1611/1623?f=templates$fn=default.htm The law of persons and family law 2015 Annual Survey 393

Jacqueline Heaton *

Legislation The law of persons No applicable legislation or draft legislation was promulgated during the period under review.

2015 Annual Survey 394

2015 Annual Survey 402 steps would have been avoided if the High Court decided the dispute as to paternity and parental responsibilities and rights before the divorce action was decided.

2015 Annual Survey 407 Regarding Children, 2010 issued in terms of the Children's Act 38 of 2005 as amended by GN R1112 GG 39410 of 13 November 2015).

Draft legislation The Children's Amendment Bill 13 of 2015 ('the Amendment Bill') and the Children's Second Amendment Bill 14 of 2015 ('the Second Amendment Bill') were tabled in Parliament in the period under review. The explanatory summaries of the Amendment Bill and the Second Amendment Bill © 2018 Juta and Company (Pty) Ltd.were published in April 2015 (GN 324 GG 38703 of 17 April 2015 and GN 325 DownloadedGG 38704 of 17 April 2015, respectively). : Tue May 14 2019 14:07:24 GMT+0200 (South Africa Standard Time) Clauses 2 to 4 of the Amendment Bill amend some of the provisions of the Children's Act ('the Act') relating to a person who is deemed unsuitable to work with children. Clause 5 of the Amendment Bill amends section 150(1)(a) of the Act to clarify that a child is in need of care and protection if he or she has been orphaned or does not have the ability to support himself or herself and this inability is readily evident, obvious or apparent. This amendment seeks to give effect to the judgments in SS v Presiding Officer, Children's Court, Krugersdorp 2012 (6) SA 45 (GSJ) and especially NM v Presiding Officer of Children's Court, Krugersdorp & others 2013 (4) SA 379 (GSJ). In the latter case, the question arose whether orphaned children being cared for by their grandmother, who had a commonlaw duty to support them, could be found to be in need of care and protection and be placed in her foster care. The court rejected the view that children being cared for by a person who has a commonlaw duty of support towards them may not be placed in foster care with that person while children being cared for by a person who does not have such a duty of support may be placed in foster care with that person. (On NM, see further 2013 Annual Survey 432–5.) Clause 6 of the Amendment Bill and clauses 2 and 3 of the Second Amendment Bill respectively, insert section 152A into the Act and amend sections 151 and 152 of the Act in keeping with the decision in C & others v Department of Health and Social Development, Gauteng & others 2012 (2) SA 208 (CC), 2012 (4) BCLR 329. In this case, the Constitutional Court declared sections 151 and 152 of the Act unconstitutional because they failed to provide for automatic judicial review of the removal of a child to temporary safe care without a court order. The court ordered

2015 Annual Survey 411

2015 Annual Survey 417 nullity' because CT's parental responsibilities and rights had been terminated by the adoption, is incorrect. (See also Skosana & Ferreira above 13–14.)

2015 Annual Survey 421

2015 Annual Survey 423

Division of accrual on divorce On the date for the determination of the accrual in a spouse's estate, see the discussion of Schmitz v Schmitz above.

Informal antenuptial contract On the validity of an informal antenuptial contract as between the parties inter se, see the discussion of Schmitz v Schmitz above.

URL: http://jutastat.juta.co.za/nxt/gateway.dll/jrsa/1573/1611/1623?f=templates$fn=default.htm The law of persons and family law 2015 Annual Survey 393

Jacqueline Heaton *

Legislation The law of persons No applicable legislation or draft legislation was promulgated during the period under review.

2015 Annual Survey 394

2015 Annual Survey 402 steps would have been avoided if the High Court decided the dispute as to paternity and parental responsibilities and rights before the divorce action was decided.

2015 Annual Survey 407 Regarding Children, 2010 issued in terms of the Children's Act 38 of 2005 as amended by GN R1112 GG 39410 of 13 November 2015).

Children Abduction © 2018 Juta and Company (Pty) Ltd.Central Authority v TK 2015 (5) SA 408 (GJ) concerns an application for a child's return under the Hague Convention on the Civil Aspects ofDownloaded : Tue May 14 2019 14:07:24 GMT+0200 (South Africa Standard Time) International Child Abduction. This case is discussed in the chapter on Conflict of Laws, and briefly mentioned above.

2015 Annual Survey 411

2015 Annual Survey 417 nullity' because CT's parental responsibilities and rights had been terminated by the adoption, is incorrect. (See also Skosana & Ferreira above 13–14.)

2015 Annual Survey 421

2015 Annual Survey 423

Division of accrual on divorce On the date for the determination of the accrual in a spouse's estate, see the discussion of Schmitz v Schmitz above.

Informal antenuptial contract On the validity of an informal antenuptial contract as between the parties inter se, see the discussion of Schmitz v Schmitz above.

URL: http://jutastat.juta.co.za/nxt/gateway.dll/jrsa/1573/1611/1623?f=templates$fn=default.htm The law of persons and family law 2015 Annual Survey 393

Jacqueline Heaton *

Legislation The law of persons No applicable legislation or draft legislation was promulgated during the period under review.

2015 Annual Survey 394

2015 Annual Survey 402 steps would have been avoided if the High Court decided the dispute as to paternity and parental responsibilities and rights before the divorce action was decided.

2015 Annual Survey 407 Regarding Children, 2010 issued in terms of the Children's Act 38 of 2005 as amended by GN R1112 GG 39410 of 13 November 2015).

2015 Annual Survey 411

2015 Annual Survey 414 within a reasonable time but not exceeding two years from the date of the adoption'. GT alleged that rescission would be in the children's best interests because it would enable their biological parents legally to resume their parental roles. Surprisingly, the application succeeded. Mokgoatlheng J pointed out that, generally, the High Court's inherent power in terms of section 173 of the Constitution of the Republic of South Africa, 1996 ('the Constitution'), to regulate its own processes cannot be exercised in conflict with the terms of an Act (para [8]). However, based on the constitutional injunction that '[a] child's best interests are of paramount importance in every matter concerning the child' (s 28(2) of the Constitution), and the High Court's power as upper guardian of all minors to make any order which is in the interests of the child, the court held that it had jurisdiction. The judge concluded that the court can entertain an application for rescission of an adoption order even after the twoyear period has expired (paras [8]–[18]). This is so, the judge held, because 'it is trite' that the paramountcy of the child's best interests 'trump[s] the prescriptive peremptory injunction of section 243(2) of the Act' as the Constitution must prevail over legislation (paras [14]–[18]; the quoted portions appear in para [14]). Consequently, the provisions of section 243(2) of the Children's Act 'are superseded by and subservient to' the Constitution (para [16]). © 2018 Juta and Company (Pty) Ltd. Downloaded : Tue May 14 2019 14:07:24 GMT+0200 (South Africa Standard Time) In view of CT's consistent refusal to allow GT to exercise parental responsibilities and rights, and her sole exercise of parental responsibilities and rights, which amounted to 'de facto nonrecognition' of the consequences of the adoption, Mokgoatlheng J found that the adoption was fictional (paras [44] [45]). He referred to section 242 of the Children's Act, which provides that adoption terminates all parental responsibilities and rights a parent has in respect of his or her child, and confers full parental responsibilities and rights on the adoptive parent. He held that, although the adoption had legally terminated the parental responsibilities and rights of the children's biological parents, and had conferred them solely on GT, CT had 'de facto ... never relinquished her parental rights, obligations and responsibilities' (para [46]; see also para [52]). He stated that the 'nucleus of the family unit' between CT and the children had never been terminated (para [47]). De facto, the children's biological father had also not relinquished his parental responsibilities and rights because he had maintained contact with ET (para [48]).

2015 Annual Survey 417 nullity' because CT's parental responsibilities and rights had been terminated by the adoption, is incorrect. (See also Skosana & Ferreira above 13–14.)

2015 Annual Survey 421

2015 Annual Survey 423

Division of accrual on divorce On the date for the determination of the accrual in a spouse's estate, see the discussion of Schmitz v Schmitz above.

Informal antenuptial contract On the validity of an informal antenuptial contract as between the parties inter se, see the discussion of Schmitz v Schmitz above.

URL: http://jutastat.juta.co.za/nxt/gateway.dll/jrsa/1573/1611/1623?f=templates$fn=default.htm The law of persons and family law 2015 Annual Survey 393

Jacqueline Heaton *

Legislation The law of persons No applicable legislation or draft legislation was promulgated during the period under review.

2015 Annual Survey 394

2015 Annual Survey 402 steps would have been avoided if the High Court decided the dispute as to paternity and parental responsibilities and rights before the divorce action was decided.

2015 Annual Survey 407 Regarding Children, 2010 issued in terms of the Children's Act 38 of 2005 as amended by GN R1112 GG 39410 of 13 November 2015).

2015 Annual Survey 411

2015 Annual Survey 417 nullity' because CT's parental responsibilities and rights had been terminated by the adoption, is incorrect. (See also Skosana & Ferreira above 13–14.)

2015 Annual Survey 418 alive to the notion that mixing of children — those in need of care with children awaiting trial/convicted/sentenced/diverted — would not be conducive to their respective care, development, rehabilitation and reintegration into society' (ibid). The court held that separately caring for, and housing children who are in alternative care in a centre where children who are awaiting trial or have been convicted, sentenced or diverted in terms of the criminal justice system are also housed, does not offer a solution to the adverse consequences of mixing the children in the same centre (para [42]). For instance, the selfworth and selfesteem of a child in alternative care would be lowered (ibid). The court concluded that placing children who are in alternative care in a more secure facility violates their right to freedom and security of the person (s 12 of the Constitution). It exposes them to 'a culture of induction into gangs by use of force, violence and duress as well as riotous behaviour' © 2018 Juta and Company (Pty) Ltd. Downloaded : Tue May 14 2019 14:07:24 GMT+0200 (South Africa Standard Time) (para [43]). It also deprives them of their liberty, and might constitute a form of detention without trial (ibid). In its capacity as the upper guardian of all minors, the court made an order that the placement of those children who had been placed in more secure care child and youth care centres should immediately be considered afresh (para [44]). The court's concern for the children placed in alternative care, and its emphasis on the need for an individualised consideration of each child's needs and circumstances, is welcomed. It is in keeping with the Constitutional Court's view that a childcentred approach must be followed in all matters involving children, and that the court must undertake 'a close and individualised examination of the precise reallife situation of the particular child involved' (S v M above; see also J v National Director of Public Prosecutions (Childline South Africa & others as amici curiae) 2014 (7) BCLR 764 (CC), 2014 (2) SACR 1).

2015 Annual Survey 421

2015 Annual Survey 423

Division of accrual on divorce On the date for the determination of the accrual in a spouse's estate, see the discussion of Schmitz v Schmitz above.

Informal antenuptial contract On the validity of an informal antenuptial contract as between the parties inter se, see the discussion of Schmitz v Schmitz above.

URL: http://jutastat.juta.co.za/nxt/gateway.dll/jrsa/1573/1611/1623?f=templates$fn=default.htm The law of persons and family law 2015 Annual Survey 393

Jacqueline Heaton *

Legislation The law of persons No applicable legislation or draft legislation was promulgated during the period under review.

2015 Annual Survey 394

2015 Annual Survey 402 steps would have been avoided if the High Court decided the dispute as to paternity and parental responsibilities and rights before the divorce action was decided.

2015 Annual Survey 407 Regarding Children, 2010 issued in terms of the Children's Act 38 of 2005 as amended by GN R1112 GG 39410 of 13 November 2015).

2015 Annual Survey 411

2015 Annual Survey 417 nullity' because CT's parental responsibilities and rights had been terminated by the adoption, is incorrect. (See also Skosana & Ferreira above 13–14.)

2015 Annual Survey 421

2015 Annual Survey 422 © 2018 Juta and Company (Pty) Ltd.be limited to that' because the court may 'be innovative in ensuring adherence to the order' (para [24]). It may, for example, first issue aDownloaded : Tue May 14 2019 14:07:24 GMT+0200 (South Africa Standard Time) mandamus and consider committal for contempt in the event of failure to comply with the mandamus. Both the mandamus and the order for committal could be sought by supplementing the papers already before the court, instead of initiating a full, new court case (ibid). Because a settlement agreement and settlement order would usually have disposed of the underlying dispute, litigation preceding enforcement of the settlement order would relate to noncompliance with the order, and not to the merits of the original underlying dispute. Consequently, the court would be spared the effort of determining the underlying dispute, which might have entailed a protracted contested hearing (para [32]). Therefore, the Constitutional Court concluded that a settlement agreement may be made an order of court even if enforcement of some of the terms of the agreement may require further recourse to court (paras [32] [33] [35]). However, the Constitutional Court warned that the court must not be mechanical in adopting the terms of a settlement agreement (paras [25] [34]). It may not make a settlement agreement an order of the court unless: the parties are involved in litigation about the particular matter(s) that form the subject of the agreement; the terms of the agreement accord with the Constitution, the law and public policy; and the agreement holds 'some practical and legitimate advantage' (paras [25] [26]). In addition, the Constitutional Court held that making a settlement agreement an order of court changes the status of the parties' rights and responsibilities because the terms of the agreement become an enforceable court order that will be interpreted like any other court order (paras [29] [31]). However, because the order follows on a settlement agreement, the contractual basis of the agreement remains intact and the principles of the interpretation of contracts will be applied in order to determine the meaning of the agreement (para [30]). The dicta of the Constitutional Court on the incorporation of settlement agreements are welcomed. They are realistic, pragmatic, and in keeping with the parties' needs. Moreover, even though the Constitutional Court did not hold that suitable settlement agreements must be incorporated, its decision should, surely, result in a uniform practice in all divisions of the High Court.

2015 Annual Survey 423

Division of accrual on divorce On the date for the determination of the accrual in a spouse's estate, see the discussion of Schmitz v Schmitz above.

Informal antenuptial contract On the validity of an informal antenuptial contract as between the parties inter se, see the discussion of Schmitz v Schmitz above.

URL: http://jutastat.juta.co.za/nxt/gateway.dll/jrsa/1573/1611/1623?f=templates$fn=default.htm The law of persons and family law 2015 Annual Survey 393

Jacqueline Heaton *

Legislation The law of persons No applicable legislation or draft legislation was promulgated during the period under review.

2015 Annual Survey 394

2015 Annual Survey 402 steps would have been avoided if the High Court decided the dispute as to paternity and parental responsibilities and rights before the divorce action was decided.

2015 Annual Survey 407 Regarding Children, 2010 issued in terms of the Children's Act 38 of 2005 as amended by GN R1112 GG 39410 of 13 November 2015).

2015 Annual Survey 411

2015 Annual Survey 417 nullity' because CT's parental responsibilities and rights had been terminated by the adoption, is incorrect. (See also Skosana & Ferreira above 13–14.)

2015 Annual Survey 421

2015 Annual Survey 423

Division of accrual on divorce On the date for the determination of the accrual in a spouse's estate, see the discussion of Schmitz v Schmitz above.

2015 Annual Survey 425 court has the power to redistribute assets in terms of section 7(3) of the Divorce Act (Jordaan v Jordaan 2001 (3) SA 288 (C); Badenhorst v Badenhorst 2006 (2) SA 255 (SCA); Grobbelaar v Grobbelaar (T) (case 26600/98), cited in Badenhorst v Badenhorst (above); Smith v Smith & others (SECLD) S(case 619/2006), cited in RP v DP & others 2014 (6) SA 243 (ECP)). However, conflicting decisions have been handed down on the issue of whether the court may take the value of the assets of an alter ego trust into account in marriages to which section 7(3) does not apply. In WT, the spouses were married in community of property. On the advice of his father, the husband ('WT') created a trust approximately two years before the spouses married. At that stage, WT and KT (his future wife) had been living together for some two years. One of the main assets of the trust was the future matrimonial home, which was acquired soon after the trust was established. WT and his brother were the trustees of the trust. The capital beneficiaries of the trust were to be selected by the trustees from the ranks of WT's children and their legal descendants, any trust created for any such beneficiaries and, if none of the above beneficiaries was alive at the vesting date of the trust, WT's heirs. WT controlled the joint estate and the trust during the subsistence of the marriage. His brother was a supine cotrustee who allowed WT exclusively to control the trust. When WT sued KT for divorce, KT filed a counterclaim relating to the scope of the assets of the joint estate. She contended that the assets of the trust, alternatively, the matrimonial home, formed part of the spouses' joint estate. She alleged that she had been led to believe that the immovable property was registered in the name of the trust solely to protect it from WT's business creditors. © 2018 Juta and Company (Pty) Ltd.The trial court found that due to representations WT had made to KT, KT believed that all their assets formed a unit, which they sharedDownloaded : Tue May 14 2019 14:07:24 GMT+0200 (South Africa Standard Time) equally. The court concluded that WT and KT had effectively agreed, before their marriage, that they would own the trust property equally as beneficial owners even though they were not beneficiaries of the trust, and that the subsequent marriage in community of property constituted a continuation of this situation. 'On the basis of the discretion exercised ... in Badenhorst v Badenhorst', the court also held that even though the spouses were married in community of property, it had a discretion to decide whether or not particular assets belonged to one of the spouses (para [25] of the judgment of the Supreme

Informal antenuptial contract On the validity of an informal antenuptial contract as between the parties inter se, see the discussion of Schmitz v Schmitz above.

URL: http://jutastat.juta.co.za/nxt/gateway.dll/jrsa/1573/1611/1623?f=templates$fn=default.htm The law of persons and family law 2015 Annual Survey 393

Jacqueline Heaton *

Legislation The law of persons No applicable legislation or draft legislation was promulgated during the period under review.

2015 Annual Survey 394

2015 Annual Survey 402 steps would have been avoided if the High Court decided the dispute as to paternity and parental responsibilities and rights before the divorce action was decided.

2015 Annual Survey 407 Regarding Children, 2010 issued in terms of the Children's Act 38 of 2005 as amended by GN R1112 GG 39410 of 13 November 2015).

2015 Annual Survey 411

2015 Annual Survey 417 nullity' because CT's parental responsibilities and rights had been terminated by the adoption, is incorrect. (See also Skosana & Ferreira above 13–14.)

2015 Annual Survey 421

2015 Annual Survey 423

Division of accrual on divorce On the date for the determination of the accrual in a spouse's estate, see the discussion of Schmitz v Schmitz above.

2015 Annual Survey 429 even as between them (para [33]; cf Union Government (Minister of Finance) v Larkan 1916 AD 212; Honey v Honey 1992 (3) SA 609 (W)). Consequently, the wife's claim stood to be dismissed (para [37]). In obiter dicta, Cloete J pointed out that the court could not assist the wife by exercising its judicial discretion to redistribute assets on divorce in terms of section 7(3) of the Divorce Act because, in the case of a civil marriage, this discretion applies only if the marriage was concluded subject to complete separation of property before 1 November 1984 (paras [34] [37]; in the case of civil marriages between African persons, the cutoff date is 2 December 1988: s 7(3)(b) of the Divorce Act). The judge considered the distinction based on the date of the marriage to be absurd. The absurdity of the current position is also illustrated by the fact that the discretion to redistribute assets on divorce is available in all customary marriages (para [34]; cf Gumede v President of the Republic of South Africa & others 2009 (3) SA 152 (CC), 2009 (3) BCLR 243). Furthermore, because life partners can establish a universal partnership relatively easily, they may be in a better position than spouses who enter into civil marriages subject to complete separation of property after the cutoff date (para [34]). Cloete J stated that the © 2018 Juta and Company (Pty) Ltd.unavailability of the judicial discretion to redistribute assets in a case like the present oneDownloaded : Tue May 14 2019 14:07:24 GMT+0200 (South Africa Standard Time) flies in the face of the equality principle enshrined in section 9 of the Bill of Rights, and provides 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 (para [37]). She indicated that legislative reform was required to bring the position in line with the Constitution (ibid). This call is heartily supported. Further on the possible unconstitutionality of section 7(3) of the Divorce Act, see 2009 Annual Survey 461; Amanda Barratt (ed) Law of Persons and the Family (2012) 351–2; Heaton & Kruger above 141–3; June D Sinclair assisted by Jacqueline Heaton The Law of Marriage vol 1 (1996) 143–6; Brigitte Clark & Beth Goldblatt 'Gender and family law' in Elsje Bonthuys & Catherine Albertyn (eds) Gender, Law and Justice (2007) 224; Jacqueline Heaton 'Family law and the Bill of Rights' in Bill of Rights Compendium (1998 looseleaf) para 3C26; Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 107; June Sinclair 'Family rights' in Dawid van Wyk, John Dugard, Bertus de Villiers & Dennis Davis (eds) Rights and Constitutionalism. The

Informal antenuptial contract On the validity of an informal antenuptial contract as between the parties inter se, see the discussion of Schmitz v Schmitz above.

URL: http://jutastat.juta.co.za/nxt/gateway.dll/jrsa/1573/1611/1623?f=templates$fn=default.htm The law of persons and family law 2015 Annual Survey 393

Jacqueline Heaton *

Legislation The law of persons No applicable legislation or draft legislation was promulgated during the period under review.

2015 Annual Survey 394

2015 Annual Survey 402 steps would have been avoided if the High Court decided the dispute as to paternity and parental responsibilities and rights before the divorce action was decided.

2015 Annual Survey 407 Regarding Children, 2010 issued in terms of the Children's Act 38 of 2005 as amended by GN R1112 GG 39410 of 13 November 2015).

2015 Annual Survey 411

2015 Annual Survey 417 nullity' because CT's parental responsibilities and rights had been terminated by the adoption, is incorrect. (See also Skosana & Ferreira above 13–14.)

2015 Annual Survey 421

2015 Annual Survey 423

Division of accrual on divorce On the date for the determination of the accrual in a spouse's estate, see the discussion of Schmitz v Schmitz above.

Informal antenuptial contract On the validity of an informal antenuptial contract as between the parties inter se, see the discussion of Schmitz v Schmitz above.

2015 Annual Survey 432 been terminated by the Muslim Judicial Council, RR claimed postdivorce maintenance from R in terms of section 7(2) of the Divorce Act until her death or remarriage. She also claimed an order relating to half of R's pension interest in terms of section 7(8) of the Act. After close of pleadings, the parties requested the court to decide two questions of law: (a) Whether the Muslim marriage between R and RR was valid despite the existence of the civil marriage between R and ER; and (b) whether the existence of the civil marriage precluded RR from obtaining relief in respect of the proprietary consequences of her marriage to R. In respect of the first question, the court cited cases where the Constitutional Court has held that Muslim marriages are not recognised in our law, except for specific purposes such as intestate succession and maintenance claims by surviving spouses (paras [22]–[25]). Relying on these cases, Bremridge AJ concluded that the marriage between R and RR was invalid (paras [28] [61]). The first question was, accordingly, answered in the negative although the court did not consider the existence of the civil marriage to be the reason for the invalidity of the Muslim marriage. In respect of the second question, Bremridge AJ invoked the reasoning in Daniels v Campbell NO & others 2004 (5) SA 331 (CC), 2004 (7) BCLR 735 and Hassam v Jacobs NO & others 2009 (5) SA 572 (CC), 2009 (11) BCLR 1148 where it was held that the central question with regard to applying legislation to a relationship is not whether the relationship constitutes a valid marriage, but whether the protection the legislation intends to confer on a person should be withheld considering the type of relationship in which the person is involved (paras [19] [20] [30]). In Daniels and Hassam, the Constitutional Court concluded that a party to a Muslim marriage qualifies as a 'spouse' for purposes of the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act even though the Muslim marriage is invalid. Bremridge AJ pointed out that the term 'marriage' is not defined in the Divorce Act (para [43]). He stated that it would be anomalous to hold that a party to a Muslim marriage qualifies as a 'spouse' for purposes of the Intestate Succession Act and the Maintenance of Surviving Spouses Act, but that a Muslim marriage does not qualify as a 'marriage' for purposes of the Divorce Act (paras [45]–[49]). © 2018 Juta and Company (Pty) Ltd.He pointed out that our courts have held that rule 43 of the High Court Rules can be invoked in respect of a Muslim marriage if aDownloaded : Tue May 14 2019 14:07:24 GMT+0200 (South Africa Standard Time)

URL: http://jutastat.juta.co.za/nxt/gateway.dll/jrsa/1573/1611/1623?f=templates$fn=default.htm The law of persons and family law 2015 Annual Survey 393

Jacqueline Heaton *

Legislation The law of persons No applicable legislation or draft legislation was promulgated during the period under review.

2015 Annual Survey 394

2015 Annual Survey 402 steps would have been avoided if the High Court decided the dispute as to paternity and parental responsibilities and rights before the divorce action was decided.

2015 Annual Survey 407 Regarding Children, 2010 issued in terms of the Children's Act 38 of 2005 as amended by GN R1112 GG 39410 of 13 November 2015).

2015 Annual Survey 411

2015 Annual Survey 417 nullity' because CT's parental responsibilities and rights had been terminated by the adoption, is incorrect. (See also Skosana & Ferreira above 13–14.)

2015 Annual Survey 421

2015 Annual Survey 423

Division of accrual on divorce On the date for the determination of the accrual in a spouse's estate, see the discussion of Schmitz v Schmitz above.

Informal antenuptial contract On the validity of an informal antenuptial contract as between the parties inter se, see the discussion of Schmitz v Schmitz above.