Hall of Cases

Memory hook. You may walk away from the altar — you just pay for the flowers already ordered.

Facts. After an engagement was broken off, the disappointed party claimed both actual expenses and prospective (marriage-benefit) losses, together with sentimental damages.

Legal question. Should the action for breach of promise still allow damages for prospective loss and for wounded feelings?

Judgment. The SCA (per Harms DP) held that awarding contractual or delictual damages for a broken engagement is out of step with modern values, and confined recovery to actual expenses.

Significance. The leading modern authority curtailing the action for breach of promise in South African law.

Exam tip. Cite as the turning point: no prospective-loss and no sentimental damages for a broken engagement; only actual wasted expenses survive. Pair with Cloete v Maritz.

Memory hook. Broken engagement: keep the receipts, forget the "what might have been".

Facts. A party sued for damages following a broken engagement, including prospective benefits of the intended marriage.

Legal question. What damages remain claimable for breach of promise after Van Jaarsveld v Bridges?

Judgment. The court applied Van Jaarsveld and limited recovery to actual patrimonial loss.

Significance. Confirms and applies the restricted modern approach to breach of promise.

Exam tip. Use together with Van Jaarsveld to state the current law on engagement damages.

Memory hook. The old two-track claim — before the SCA pulled up the second track.

Facts. A claim arose out of a terminated engagement, argued on both contractual and delictual bases.

Legal question. On what bases could a party sue for a broken engagement under the older approach?

Judgment. The court applied the traditional two-fold framework, later overtaken by Van Jaarsveld v Bridges.

Significance. Illustrates the pre-Van Jaarsveld position on breach of promise.

Exam tip. Use to show the older law, then contrast with Van Jaarsveld to show how the action was narrowed.

Memory hook. A "yes" squeezed out by threats can be taken back — but only by court order.

Facts. A party entered a marriage after consent was extracted under threats.

Legal question. What is the effect of duress (metus) on the validity of a marriage?

Judgment. The court recognised duress as a defect of consensus rendering the marriage voidable.

Significance. The standard authority for duress as a ground on which a marriage is voidable.

Exam tip. Use for the voidable limb of the void/voidable/putative analysis: duress does not destroy the marriage automatically — the coerced party must have it annulled.

Memory hook. The marriage was never real — but an honest belief keeps the children and the property safe.

Facts. A dispute turned on the status and consequences of a marriage that was defective in law but entered in the belief that it was valid.

Legal question. What are the consequences of a putative marriage — a void marriage entered in bona fide belief that it is valid?

Judgment. The court held a Muslim marriage solemnised by someone who was not a marriage officer, where the parties were bona fide, was putative, so the children were legitimate. The court stressed that the doctrine's real significance lies in the legitimacy of the children, noting the parties themselves could resort to a universal partnership for patrimonial relief.

Significance. A standard illustration of the putative-marriage doctrine — particularly its protection of the children's status.

Exam tip. Use for the "putative" limb when distinguishing void, voidable and putative marriages.

Memory hook. The putative second wife cannot slice the first wife's half — only sue the husband.

Facts. A husband (already married in community of property to a first wife) purported to marry a second wife under civil law. The second marriage was void for bigamy. The second wife, as a bona fide party, sought a share of the joint estate of the first marriage.

Legal question. Where the first marriage is in community of property, may a bona fide putative second wife claim a half-share of that joint estate?

Judgment. The court (per Hugo J, then the Durban and Coast Local Division — today the KZN Division, Durban) dismissed the application. The joint estate with the first wife had never been terminated, so every asset of the deceased already belonged to that estate in undivided shares: there was nothing left out of which a second community could be formed. The second wife was limited to a personal claim — a spouse induced into a void marriage "has a right to claim damages resulting from such inducement".

Significance. Defines the outer limit of putative-marriage patrimonial protection: the bona fide party's claim cannot override the real rights of parties to the first, valid marriage. The court noted the want of authority squarely on the point, and the decision has since drawn academic criticism for leaving the innocent second wife under-protected — worth raising in an evaluative answer.

Exam tip. Use for the bigamy scenario — the putative doctrine rescues the innocent second wife from some hardship, but cannot give her rights superior to the real property rights of the first wife. Her remedy is delictual, not proprietary. For the general proprietary consequences of a putative marriage (where no competing joint estate exists) the foundational authority is Ex parte L (also known as A) 1947 (3) SA 50 (C).

Memory hook. Marriage is a whole life shared — and the law once guarded it against outsiders.

Facts. A spouse sought a remedy against a third party arising from interference with the marriage relationship.

Legal question. Is the consortium omnis vitae protected against wrongful interference?

Judgment. The court recognised consortium and the availability of a remedy for its infringement.

Significance. A classic statement of consortium omnis vitae as a protected interest of marriage.

Exam tip. Use to define and locate consortium; note the adultery-based limb was later abolished in DE v RH.

Memory hook. Take away a spouse's companion, and the law counts the cost.

Facts. A spouse was deprived of the comfort and society of the other by a wrongdoer's conduct and claimed for loss of consortium.

Legal question. Can a spouse claim for loss of consortium caused by a third party's wrongful act?

Judgment. The court articulated the classic definition of consortium in the context of a claim arising from interference with the marriage relationship.

Significance. The standard authority for what consortium omnis vitae means. Note that the scope of third-party claims for interference with consortium is contested, and the adultery-based claim was later abolished in DE v RH.

Exam tip. Use for the protective dimension of consortium; contrast with the abolished adultery claim (DE v RH).

Memory hook. The groceries bind them both.

Facts. A creditor sought to hold a spouse liable for goods supplied for the joint household.

Legal question. Are both spouses liable for debts incurred for household necessaries?

Judgment. The court recognised liability for household necessaries.

Significance. An early statement of the household-necessaries doctrine, now understood as joint and several liability of the spouses.

Exam tip. Use for household necessaries; remember the standard is what is reasonably required, judged by the family's standard of living.

Memory hook. No more suing the lover — the marriage's breakdown is the spouses' own affair.

Facts. A husband sued his wife's lover for damages for adultery, on the bases of contumelia and loss of consortium.

Legal question. Should the delictual claim for adultery against a third party still exist?

Judgment. The Constitutional Court (following the SCA) confirmed the abolition of the adultery action.

Significance. Ends the third-party adultery claim in South African law; adultery now matters only as evidence of irretrievable breakdown for divorce.

Exam tip. Do not advise suing a spouse's lover — the remedy for adultery is divorce, not delict. Style note: in the Constitutional Court the case is DE v RH (DE was the appellant); "RH v DE" is the SCA-stage styling (RH v DE 2014 (6) SA 436 (SCA)).

Memory hook. Look at the whole marriage — is there any road back?

Facts. A spouse sought a divorce on the ground of irretrievable breakdown; the state of the marriage was in issue.

Legal question. How does a court determine whether a marriage has irretrievably broken down?

Judgment. The Appellate Division applied this holistic test to the ground of irretrievable breakdown.

Significance. Leading authority on proving irretrievable breakdown under s 4 of the Divorce Act.

Exam tip. Stress that the s 4(2) examples merely evidence breakdown; the real question is the prospect of restoring a normal marriage.

Memory hook. First ask "does he gain?" — only then "is the gain unfair?"

Facts. On divorce, one spouse sought an order forfeiting the patrimonial benefits of the marriage against the other.

Legal question. How is forfeiture of patrimonial benefits determined under s 9 of the Divorce Act?

Judgment. The Appellate Division set aside the forfeiture order, clarifying the correct approach.

Significance. The leading authority on forfeiture of benefits under s 9 of the Divorce Act 70 of 1979.

Exam tip. Remember: a party can only forfeit a benefit (a net gain from the other's estate), never their own contribution. Misconduct alone is not decisive.

Memory hook. Reward the unseen contribution to the estate.

Facts. On divorce of a marriage out of community of property, a spouse sought a redistribution of assets to reflect her contribution to the other's estate.

Legal question. How does a court exercise the redistribution discretion under s 7(3) of the Divorce Act?

Judgment. The Appellate Division set out the broad, discretionary and equitable approach to redistribution.

Significance. The foundational authority on redistribution orders for older out-of-community marriages.

Exam tip. Note redistribution applies only to out-of-community marriages before the statutory cut-off; indirect (e.g. homemaking) contributions count.

Memory hook. Not a 50/50 rule — a fair reflection of what each brought.

Facts. A redistribution claim required the court to weigh the parties' contributions and circumstances on divorce.

Legal question. What factors guide the size of a redistribution order under s 7(3)-(5)?

Judgment. The SCA refined the Beaumont approach and adjusted the redistribution on the facts.

Significance. Develops the redistribution enquiry and the weighing of contributions and circumstances.

Exam tip. Pair with Beaumont; emphasise the equitable, discretionary nature of the s 7(3) enquiry.

Memory hook. Two gaps, one judgment: the date-bar falls, and death gets a remedy at last.

Facts. Two cases heard together, each attacking a different gap in the s 7(3) redistribution remedy — Rogers J called them the "divorce/death issue" and the "before/after issue". Keep them apart: EB v ER (CCT 364/21) concerned the absence of a redistribution remedy where the marriage ends by death rather than divorce. KG (CCT 158/22) concerned the absence of the remedy where the marriage was entered into on or after 1 November 1984 (the MPA commencement date) — Mrs G had married by antenuptial contract in March 1988. In each case the wife had won a declaration of invalidity in the High Court, which came to the Constitutional Court for confirmation under s 172(2)(a).

Legal question. Is it constitutional for s 7(3) to confine the redistribution remedy to (a) marriages dissolved by divorce rather than death, and (b) marriages entered into before 1 November 1984?

Judgment. The Constitutional Court (per Rogers J, unanimous) confirmed both declarations of invalidity but suspended them for 24 months to let Parliament cure the defects. Interim relief pending legislation: for the before/after issue, the words "before the commencement of the Matrimonial Property Act, 1984" are notionally severed from s 7(3)(a); for the divorce/death issue, a new s 36A is read into the Matrimonial Property Act allowing a redistribution order where the marriage is dissolved by death. Retrospectivity was limited — no effect on acts done before the order, and none on estates already finally wound up.

Significance. The judgment that dismantled the s 7(3) date-bar and extended redistribution to dissolution by death. The interim severance and read-in operate pending remedial legislation; the legislative response is the General (Family) Laws Amendment Bill (B20-2025), introduced on 13 August 2025 — check its current status before relying on it, and note that the 24-month suspension ran out on 10 October 2025.

Exam tip. The examinable trap is which case is which: EB v ER = death; KG = the 1984 date-bar. Do not say the Court simply "struck down" the limits — both declarations were suspended for 24 months, with severance and a read-in operating in the meantime. Cite it as EB v ER; KG (EB leads in the reported name), and attribute it to Rogers J. There is no "1988 cut-off" — 1 November 1984 is the MPA commencement; 1988 is merely when Mrs G married. Do not cite the Divorce Amendment Act 1 of 2024 for this case: that Act concerns Muslim marriages and answers different litigation entirely.

Memory hook. The judgment that opened marriage to everyone.

Facts. A same-sex couple challenged the common-law definition of marriage and the Marriage Act for excluding them from marriage.

Legal question. Is the exclusion of same-sex couples from marriage constitutional?

Judgment. The Constitutional Court declared the exclusion unconstitutional and suspended the declaration to allow legislative reform.

Significance. Directly produced the Civil Union Act 17 of 2006 and marriage equality in South Africa.

Exam tip. Cite as the source of the Civil Union Act; note same-sex couples marry under that Act, not the Marriage Act.

Memory hook. Equal ownership for the customary-marriage wife.

Facts. A wife in an old (pre-Act) monogamous customary marriage was denied equal rights over marital property under the RCMA's transitional provisions.

Legal question. Do provisions denying wives in old customary marriages equal proprietary rights violate the Constitution?

Judgment. The Constitutional Court struck down the offending provisions, equalising proprietary rights.

Significance. A landmark securing equality for wives in monogamous customary marriages.

Exam tip. Use for equality in customary-marriage property; distinguish Ramuhovhi, which addressed polygynous marriages.

Memory hook. Equality reaches the polygynous household too.

Facts. Wives in old polygynous customary marriages lacked equal rights to marital property under the RCMA.

Legal question. Are wives in old polygynous customary marriages entitled to equal proprietary rights?

Judgment. The Constitutional Court declared the provision invalid and imposed an interim regime pending legislation.

Significance. Extends Gumede's equality to polygynous customary marriages.

Exam tip. Pair with Gumede (monogamous) and Mayelane v Ngwenyama (first wife's consent) for the customary-marriage property picture.

Memory hook. Skip the s 7(6) contract and the marriage survives — but out of community.

Facts. A husband in an existing customary marriage entered a further customary marriage without obtaining the court-approved contract regulating the future matrimonial property system required by s 7(6) of the Recognition of Customary Marriages Act.

Legal question. What is the effect on a further customary marriage of non-compliance with s 7(6) of the RCMA?

Judgment. The SCA settled the consequence of skipping s 7(6) at appellate level: validity is preserved; only the property regime is affected.

Significance. Settles the patrimonial effect of non-compliance with s 7(6). This is the SCA stage of the same litigation that reached the Constitutional Court as Mayelane v Ngwenyama — read the two together, not as separate disputes.

Exam tip. Keep the levels apart: the SCA (MN v MM) dealt with the s 7(6) property question; the Constitutional Court (Mayelane) dealt with the first wife's consent under Xitsonga customary law.

Memory hook. No second wife without the first wife's "yes".

Facts. The validity of a second (polygynous) Tsonga customary marriage was challenged where the first wife had not consented. Also cited as MM v MN — some academic case notes use the anonymised form, but it is the same judgment.

Legal question. Is the consent of the first wife required for a valid subsequent customary marriage?

Judgment. The Constitutional Court held the second marriage invalid for want of the first wife's consent.

Significance. Establishes the first wife's consent as a validity requirement for further customary marriages, and models the development of living customary law under s 39(2).

Exam tip. Cite as Mayelane v Ngwenyama (you may see it as MM v MN). Combine with s 7(6) RCMA (court-approved contract) when discussing further customary wives. Note the holding was expressly developed for Tsonga customary law — do not state it as a blanket rule for all customary systems without saying so.

Memory hook. Custom lives in conduct, not in a checklist — the bride need not be "delivered" to be married.

Facts. The validity of a customary marriage was disputed on the basis that the bride had never been formally handed over to the groom's family.

Legal question. Is the handing over of the bride an indispensable requirement for a valid customary marriage under s 3(1)(b) of the RCMA?

Judgment. The SCA held the customary marriage valid despite the absence of a formal handing over, looking to the substance of the parties' conduct rather than strict ritual compliance.

Significance. Anchors the flexible, substance-over-ritual reading of s 3(1)(b) and the recognition that living customary law evolves.

Exam tip. Pair with Tsambo v Sengadi: both reject a rigid, checklist approach to the celebration requirement.

Memory hook. The HHP case: a symbolic welcome sealed what ritual formality never did.

Facts. After the death of the musician HHP, his father disputed the validity of the customary marriage between the deceased and his partner, contending the bride had not been formally handed over.

Legal question. Can symbolic handing over or integration of the bride satisfy the customary-law celebration requirement?

Judgment. The SCA confirmed the customary marriage was valid on the strength of the symbolic integration that had occurred.

Significance. Confirms Mbungela v Mkabi: the celebration requirement in s 3(1)(b) of the RCMA is applied flexibly to living custom.

Exam tip. Known as the "HHP case" — a memorable illustration that custom evolves. Cite alongside Mbungela.

Memory hook. The old refusal — the wall later dismantled brick by brick.

Facts. A party sought to enforce consequences of a Muslim marriage as if it were a civil marriage.

Legal question. Was a potentially polygynous Muslim marriage recognised as a valid marriage?

Judgment. The Appellate Division declined to recognise the Muslim marriage as a valid marriage.

Significance. States the old non-recognition position, later eroded by Daniels, Hassam and Women's Legal Centre Trust.

Exam tip. Use as the starting point of the recognition story; then trace the progressive case law.

Memory hook. Constitutional values reopened the door that Ismail had closed — the contract binds the couple.

Facts. On the breakdown of a monogamous Muslim marriage, a spouse sought to enforce the contractual consequences flowing from the marriage agreement.

Legal question. Are the contractual consequences of a Muslim marriage enforceable between the parties?

Judgment. The court rejected the pre-constitutional public-policy objection and enforced the agreement between the parties.

Significance. The first major crack in the non-recognition of Muslim marriages, departing from the approach in Ismail v Ismail.

Exam tip. The starting point of the Muslim-marriage line: Ryland (contract inter partes) → Amod (loss of support) → Daniels/Hassam (succession) → WLC Trust (systemic declaration).

Memory hook. The duty of support outlived non-recognition — the widow's claim stood.

Facts. A widow married by Islamic rites claimed for loss of support after her husband was killed in a motor vehicle accident. The Fund resisted because the marriage was not recognised at civil law.

Legal question. May a spouse married by religious rites only claim loss of support under the dependant's action?

Judgment. The SCA upheld the widow's claim, moving away from the exclusionary public-policy approach.

Significance. Extended the dependant's action to religious-marriage spouses and provided the platform for Paixão (life partners).

Exam tip. Contrast with Ismail v Ismail to show the constitutional-era shift; pair with Paixão for the parallel life-partnership development.

Memory hook. The Muslim widow is a "spouse" after all.

Facts. The survivor of a monogamous Muslim marriage claimed as a "spouse" under the Intestate Succession Act and the Maintenance of Surviving Spouses Act.

Legal question. Does "spouse" in those Acts include a party to a monogamous Muslim marriage?

Judgment. The Constitutional Court read "spouse" to include the Muslim widow, granting her the statutory protections.

Significance. A key step in the piecemeal recognition of Muslim marriages for specific statutory purposes.

Exam tip. Note it covers monogamous Muslim marriages; Hassam extended this to polygynous ones.

Memory hook. Recognition reaches the polygynous Muslim marriage.

Facts. A survivor of a polygynous Muslim marriage was excluded from intestate-succession protection afforded to "spouses".

Legal question. Do spouses in polygynous Muslim marriages qualify for intestate-succession protection?

Judgment. The Constitutional Court extended intestate-succession protection to polygynous Muslim spouses.

Significance. Extends Daniels to polygynous Muslim marriages for intestate succession.

Exam tip. Pair with Daniels; both feed into the broader recognition confirmed in Women's Legal Centre Trust.

Memory hook. The State must finally recognise the Muslim marriage.

Facts. The State's ongoing failure to recognise Muslim marriages left spouses (especially women and children) without the protections of marriage law.

Legal question. Is the failure to recognise Muslim marriages as valid marriages unconstitutional?

Judgment. The Constitutional Court confirmed the invalidity and ordered detailed interim measures pending comprehensive reform.

Significance. The systemic declaration governing Muslim marriages. Since then, the Divorce Amendment Act 1 of 2024 (in force May 2024) has cured the Divorce Act defects by extending that Act to Muslim marriages directly. The Marriage Act defects remain outstanding: the Court extended the suspension to 27 June 2026 in Speaker of the National Assembly v Women's Legal Centre Trust [2024] ZACC 18 to allow the Marriage Bill to be processed.

Exam tip. This is the leading authority — avoid saying Muslim marriages are simply "not recognised". Keep the two statutes apart in an answer: the Divorce Act side has been fixed by the Divorce Amendment Act 1 of 2024; the Marriage Act side is still awaiting legislation under an extended suspension.

Memory hook. The first reading-in for same-sex partners — the immigration queue could no longer ask for a ring.

Facts. Immigration legislation gave "spouses" of South African residents preferential treatment, excluding permanent same-sex life partners, who at that time could not marry.

Legal question. Was the exclusion of permanent same-sex life partners from spousal immigration benefits constitutional?

Judgment. The Constitutional Court declared the provision invalid and cured it by reading in, extending the spousal benefit to permanent same-sex life partners.

Significance. An early building block of life-partnership recognition and a leading example of the reading-in remedy.

Exam tip. Use as the starting point of the partnership-recognition line: National Coalition → Satchwell → Gory → Bwanya.

Memory hook. Reciprocal support, not a wedding ring, unlocked the spousal benefits.

Facts. A judge in a permanent same-sex life partnership was denied the spousal benefits that legislation attached to a judge's "spouse".

Legal question. Must statutory spousal benefits extend to a permanent same-sex life partner?

Judgment. The Constitutional Court read words into the legislation to include such partners.

Significance. Coined the "permanent partnership + reciprocal duties of support" formula reused in Gory and Bwanya.

Exam tip. The reciprocal-support formula is the examinable takeaway — it is the thread running through Gory and Bwanya.

Memory hook. You could have married — so no spouse's claim (the rule Bwanya later softened).

Facts. The survivor of a long cohabitation relationship claimed maintenance from her late partner's estate under the Maintenance of Surviving Spouses Act.

Legal question. Is a cohabiting survivor a "spouse" entitled to claim under the Maintenance of Surviving Spouses Act?

Judgment. The Constitutional Court dismissed the claim, upholding the married/unmarried distinction.

Significance. Long the leading (and controversial) authority denying cohabitants marital protections — later departed from in Bwanya.

Exam tip. Contrast sharply with Bwanya, which extended succession and maintenance to permanent life partners.

Memory hook. The same-sex partner inherits — a first crack in the door.

Facts. A surviving same-sex partner sought to inherit intestate from his deceased partner before civil unions were available.

Legal question. Does the surviving partner of a same-sex permanent life partnership inherit intestate?

Judgment. The Constitutional Court extended intestate succession to the surviving same-sex partner.

Significance. Recognised same-sex partners for intestate succession before the Civil Union Act; a forerunner to Bwanya.

Exam tip. Use for the same-sex-partnership succession line; note it predates civil unions.

Memory hook. The life partner finally inherits and claims — Volks overtaken.

Facts. The survivor of a permanent opposite-sex life partnership, in which the couple had undertaken to support each other and intended to marry, was excluded from intestate succession and maintenance claims.

Legal question. May a survivor of a permanent heterosexual life partnership claim intestate succession and maintenance?

Judgment. The Constitutional Court departed from Volks and extended the statutory protections to qualifying life partners.

Significance. A major shift recognising permanent life partnerships for succession and maintenance.

Exam tip. Cite as the modern position departing from Volks; note the requirement of a reciprocal undertaking of support.

Memory hook. Twenty years of homemaking bought a 30% share — partnership without a wedding.

Facts. After a cohabitation relationship of nearly 20 years ended, the woman — who had run the home and raised the children while the man built up his business — claimed a share of the assets on the basis of a tacit universal partnership.

Legal question. Can a cohabitant prove a tacit universal partnership entitling them to a share of assets accumulated during the relationship?

Judgment. The SCA found a tacit universal partnership proved and awarded the woman a 30% share.

Significance. The leading separation remedy for unmarried cohabitants, who have no statutory matrimonial property regime to fall back on.

Exam tip. The lifetime-separation counterpart to Bwanya (which governs death). For cohabitants: universal partnership on separation; intestate succession and maintenance on death.

Memory hook. Prove the promise of support, and delict mourns with you — married or not.

Facts. A woman's life partner was killed in a road accident. The Road Accident Fund disputed her claim for loss of support because the couple were not married.

Legal question. Does the dependant's action for loss of support extend to an unmarried life partner?

Judgment. The SCA upheld the life partner's claim for loss of support against the Fund.

Significance. Extends delictual loss-of-support protection to life partnerships, building on Amod.

Exam tip. The delict limb of partnership protection: Amod (religious marriage) → Paixão (life partnership). The claimant must prove the undertaking of support.

Memory hook. The family that commits together may adopt together.

Facts. The applicants were partners in a longstanding lesbian relationship who had jointly cared for two children and wished to adopt them jointly. The Child Care Act 74 of 1983 restricted joint adoption to married couples, excluding them.

Legal question. Does confining joint adoption to married couples, thereby excluding partners in a permanent same-sex life partnership, violate the Constitution?

Judgment. The Constitutional Court declared the prohibition unconstitutional and read in the words "or by the two members of a permanent same-sex life partnership jointly" to the Child Care Act (ss 17(a), 17(c), 20(1)) and the Guardianship Act (s 1(2)).

Significance. The foundation case for joint adoption by same-sex life partners. Its remedy went no further: every reading-in speaks only of a "permanent same-sex life partnership". Unmarried opposite-sex partners were not before the Court and got no relief here — that broader position came later, from the Children's Act 38 of 2005, which allows joint adoption by partners in a permanent domestic life partnership generally.

Exam tip. Use to show that adoption is not limited to married couples — but be precise about scope: Du Toit is same-sex specific. For unmarried opposite-sex partners, cite the Children's Act, not Du Toit.

Memory hook. Subsidiarity is a core factor — but this child's best interests are paramount.

Facts. An American couple wished to adopt Baby R, an abandoned South African child they had cared for since infancy. Departmental policy at the time barred United States citizens from adopting South African children, so they were advised to approach the High Court for sole custody and sole guardianship instead — intending to complete the adoption in Virginia. The SCA refused, calling this an unsavoury way of bypassing the Children's Court adoption system and jumping the queue.

Legal question. May the High Court grant sole custody and guardianship of a child to foreign applicants as a route to intercountry adoption, and how does the subsidiarity principle relate to the paramountcy of the child's best interests?

Judgment. The Constitutional Court (per Sachs J) granted the applicants sole custody and sole guardianship. The High Court, as upper guardian, has jurisdiction to make such orders, but the Children's Court adoption machinery should ordinarily be used; on these facts the child had bonded with the applicants and further delay would have harmed her.

Significance. The leading SA authority on intercountry adoption and the subsidiarity principle. It subordinates a general policy preference for local placement to the paramountcy of the individual child's best interests, and confirms the High Court's upper-guardian jurisdiction while discouraging routine use of it to sidestep the Children's Court.

Exam tip. Cite for subsidiarity in intercountry adoption and its subordination to s 28(2) best interests. Do not cite this case for unmarried biological fathers' rights in adoption — that is Fraser v Children's Court, Pretoria North.

Memory hook. No gamete of your own, no surrogacy — upheld 7:5.

Facts. AB, a single woman, was unable to produce her own gametes and could not carry a pregnancy. She wished to become a commissioning parent through a surrogacy arrangement using both a donor egg and donor sperm — a double-donor conception. Section 294 of the Children's Act requires the gamete of at least one commissioning parent, which barred her arrangement. The High Court declared s 294 unconstitutional; the matter came to the Constitutional Court for confirmation.

Legal question. Is the genetic-link requirement in s 294 of the Children's Act — that at least one commissioning parent contribute a gamete — constitutionally valid?

Judgment. The Constitutional Court, by a 7:5 majority (per Nkabinde J), upheld s 294 as constitutional and reversed the High Court's declaration of invalidity. A strong minority would have struck the requirement down as an unjustifiable limitation of the rights to equality, dignity, autonomy and reproductive health care.

Significance. The leading authority on the genetic-link requirement in surrogacy. It marks the outer limit of reproductive autonomy in SA law: surrogacy is a statutory privilege on the Act's terms, not a right to be exercised on any terms the commissioning parent chooses. The narrow majority signals the question is not settled beyond argument.

Exam tip. Cite for the validity of the s 294 genetic-link requirement and the absence of a free-standing right to surrogacy. Note the 7:5 split — the minority reasoning is examinable. Do not cite this case for same-sex surrogacy: it was brought by a single woman and did not concern sexual orientation.

Memory hook. Surrogacy starts in court, not in the clinic — confirmation first, conception after.

Facts. Commissioning parents applied to the High Court for confirmation of a surrogate motherhood agreement under s 295 of the Children's Act.

Legal question. What must commissioning parents place before the court to have a surrogate motherhood agreement confirmed?

Judgment. The court (per Tolmay J) laid down detailed practical guidance for surrogacy confirmation applications, stressing that artificial fertilisation may only take place after confirmation and within 18 months (s 296).

Significance. The leading procedural guidance on Chapter 19 in practice: an unconfirmed agreement is invalid and unenforceable (s 292(1)(e)).

Exam tip. The procedural companion to AB v Minister of Social Development. Use for a problem question on what the commissioning parents must prove, and for the full vs partial surrogacy distinction.

Memory hook. The unmarried father's voice starts to count.

Facts. An unmarried father objected that his child could be adopted without his consent, while a married father's consent would be required.

Legal question. Does requiring only some fathers' consent to adoption unfairly discriminate against unmarried fathers?

Judgment. The Constitutional Court found the differentiation problematic and directed legislative correction.

Significance. An early driver of the recognition of unmarried fathers' parental responsibilities and rights, later codified in s 21 of the Children's Act.

Exam tip. Use as background to s 21 of the Children's Act on unmarried fathers' rights.

Memory hook. No checklist, no thresholds — the unmarried father's rights turn on all the facts.

Facts. An unmarried mother removed her four-month-old child to England without the father's consent. Whether she needed his consent depended on whether he had acquired full parental responsibilities and rights under s 21(1)(b) of the Children's Act — identification as the father plus good-faith contributions to the child's upbringing and maintenance.

Legal question. How is it determined whether an unmarried father has satisfied the requirements of s 21(1)(b) of the Children's Act?

Judgment. The SCA held the father had acquired full parental responsibilities and rights, so the removal of the child without his consent breached his guardianship rights. The court expressly declined to decide whether the three s 21(1)(b) requirements operate conjunctively or are merely categories of fact.

Significance. The leading interpretation of s 21(1)(b), insisting on a flexible, fact-specific enquiry that does not unfairly discriminate against unmarried fathers.

Exam tip. The trap: the SCA did NOT hold the s 21(1)(b) requirements to be cumulative — it left that question open. Do not state a conjunctive test as the holding.

Memory hook. An unmarried father may give his child his name from day one — the register is no longer mother-gated.

Facts. Section 10 of the Births and Deaths Registration Act 51 of 1992 barred an unmarried father from giving notice of his child's birth under his own surname without the mother's consent or in her absence.

Legal question. Does the bar on unmarried fathers registering their children's births under their own surnames unfairly discriminate?

Judgment. The Constitutional Court (per Victor AJ for the majority; Mogoeng CJ dissenting) declared the provisions inconsistent with the Constitution and invalid.

Significance. Extends the equality logic of Fraser from adoption consent to birth registration; also relevant to statelessness and undocumented children.

Exam tip. Caution: the judgment governs the initial notice of birth — it is not authority for altering a surname already registered (that is s 25(2) of the Births and Deaths Registration Act).

Memory hook. The best-interests checklist courts still reach for.

Facts. Parents disputed the care of their son; the court had to decide what best served the child's interests.

Legal question. What factors determine the best interests of the child in a care/contact dispute?

Judgment. The court applied the best-interests standard, considering the enumerated factors and the child's own views.

Significance. A leading practical catalogue of best-interests factors, later reinforced by s 7 of the Children's Act.

Exam tip. Use as a checklist for best-interests arguments; align it with s 7 of the Children's Act 38 of 2005.

Memory hook. "Families come in many shapes and sizes" — the Constitution protects them all.

Facts. Foreign spouses of South African citizens were denied temporary residence permits, forcing families to live apart or abroad. Section 25(9)(b) of the Aliens Control Act 96 of 1991, read with s 26(3) and (6), conferred a discretion on officials with no guidance as to how it should be exercised — the constitutional flaw at the heart of the case.

Legal question. Does the Constitution protect diverse forms of family life, and may a statute confer an unguided discretion whose exercise can arbitrarily separate family members?

Judgment. The Constitutional Court declared s 25(9)(b) read with ss 26(3) and (6) inconsistent with the Constitution and invalid, and suspended the declaration for 24 months for Parliament to fix it. As interim relief it granted a mandamus: officials were directed not to refuse or decline to extend permits to the affected applicants unless "good cause" for refusal is established. Note it did not read words into the Act.

Significance. Articulates the constitutional concept of the family, and is a leading authority on the requirement that a statute conferring a rights-limiting discretion must give guidance for its exercise.

Exam tip. Use as authority for the broad constitutional conception of family, and for the unguided-discretion point. Describe the remedy accurately — a suspended declaration of invalidity plus an interim "good cause" mandamus, not a reading-in (contrast Gory and Du Toit, which really do insert statutory words). Pairs with developments from Volks to Bwanya.

Memory hook. The State must shield victims — that duty is constitutional.

Facts. The enforcement scheme for interdicts against domestic violence (a precursor to the DVA) was challenged, including its effect on the presumption of innocence.

Legal question. Is the State constitutionally obliged to protect people against domestic violence, and is the enforcement scheme valid?

Judgment. The Constitutional Court upheld the protective scheme, reading it to preserve the presumption of innocence.

Significance. Affirms the constitutional foundation of domestic-violence protection underpinning the DVA.

Exam tip. Use for the State's protective duty and the constitutional grounding of the DVA.

Memory hook. The order bites: a warrant waits behind it.

Facts. The DVA's mechanism of issuing a warrant of arrest, suspended and executable on breach of a protection order, was challenged.

Legal question. Is the DVA's suspended warrant-of-arrest mechanism constitutional?

Judgment. The Constitutional Court upheld the mechanism as consistent with the Constitution.

Significance. Confirms the enforceability backbone of the protection order under the DVA.

Exam tip. Use to explain why a protection order carries real force — the suspended warrant behind it.