Hall of Cases

Memory hook. The unborn heir's place is kept warm until it is born alive.

Facts. A testator's will left a benefit to grandchildren; the question was whether a grandchild conceived but not yet born at the relevant time could share.

Legal question. Can a conceived-but-unborn child take a benefit in succession?

Judgment. The court applied the fiction in the child's favour in the succession context.

Significance. The locus classicus for the nasciturus fiction in the law of succession. A bequest to "living children" includes a child conceived but not yet born at the testator's death, provided the child is later born alive.

Exam tip. Use for the succession limb of the nasciturus fiction; remember the three requirements: (1) child conceived, (2) will benefit, (3) born alive.

Memory hook. Harm before birth can be answered after a live birth.

Facts. A child was born with disabilities allegedly caused by an injury to the mother (and thus the foetus) before birth; a delictual claim was brought.

Legal question. Can the nasciturus fiction extend to a delictual claim for pre-natal injury?

Judgment. The court accepted the fiction could apply in delict in principle.

Significance. Extended the nasciturus reasoning beyond succession into delict — though RAF v Mtati later showed ordinary delictual principles make the fiction unnecessary in this context.

Exam tip. Pair with RAF v Mtati, which later showed the fiction is not actually needed in delict.

Memory hook. Delict doesn't need the fiction — being born alive is enough.

Facts. A child suffered brain damage from a pre-birth motor accident and later claimed from the Road Accident Fund.

Legal question. Is the nasciturus fiction necessary to found a delictual claim for pre-natal injury?

Judgment. The SCA upheld the claim on ordinary principles without relying on the fiction, confining the nasciturus fiction largely to succession.

Significance. Departed from Pinchin and confined the nasciturus fiction to succession; delict stands on ordinary principles.

Exam tip. After Mtati, don't reach for the fiction in delict — use ordinary principles and rely on the child being born alive.

Memory hook. The unborn is shielded by a fiction, not by personhood.

Facts. The Christian Lawyers Association challenged the Choice on Termination of Pregnancy Act 92 of 1996, arguing that the s 11 right to life in the Constitution protects the foetus from the moment of conception.

Legal question. Is a foetus a bearer of the right to life in s 11 of the Constitution — that is, a legal person?

Judgment. The court rejected the challenge and upheld the Choice Act — the foetus is not a legal persona.

Significance. The leading authority that the unborn child has no personality or right to life — which is why the nasciturus fiction, not personhood, is the only route by which the unborn benefits.

Exam tip. Use for the beginning-of-personality rule and the limits of the nasciturus fiction: no live birth, no personality.

Memory hook. Born too late to know your father — but not too late to claim for his loss.

Facts. A child's father was killed before the child was born as a result of someone else's delict. The child claimed as a dependant.

Legal question. Does a child whose father is killed before the child's birth have a dependant's action for loss of support?

Judgment. The court recognised the child's dependant's claim, applying the nasciturus fiction so that the child was deemed alive at the time of the father's death.

Significance. An early application of the nasciturus fiction to extend the dependant's action to a child not yet born when the delict occurred.

Exam tip. Use alongside Boedel and Pinchin to show the range of the fiction; the child must be born alive to pursue the claim.

Memory hook. The mother could claim for the cost of the life; the child could not claim for the living of it.

Facts. Mrs Friedman consulted Dr Glicksman during her pregnancy. He negligently failed to detect and inform her of congenital defects in the foetus. She testified she would have terminated the pregnancy had she been correctly advised. The child was born with severe disabilities. Two claims followed: the mother's own claim for the patrimonial cost of raising a disabled child (a wrongful birth claim), and a claim brought on the child's behalf that being born in that condition was itself the harm (a wrongful life claim).

Legal question. May a mother recover the patrimonial cost of raising a disabled child from a doctor whose negligent advice deprived her of the choice to terminate — and may the child itself claim for having been born?

Judgment. Goldblatt J allowed the mother's wrongful birth claim (it survived the exception) and dismissed the child's wrongful life claim on public-policy grounds.

Significance. The first South African judgment to address wrongful birth and wrongful life. The wrongful-birth claim has been settled law since. On wrongful life, Stewart v Botha 2008 (6) SA 310 (SCA) reached the same result on the narrower ground that the question "goes so deeply to the heart of what it is to be human that it should not even be asked of the law". H v Fetal Assessment Centre 2015 (2) SA 193 (CC) then held the exception should not have been decided without weighing the child's best interests, remitting the matter — leaving the wrongful-life claim open rather than settled.

Exam tip. Keep the two claims apart — that separation is the whole case. Mother's claim (wrongful birth): succeeds. Child's claim (wrongful life): refused on public policy. Then track the line forward: Stewart v Botha affirmed the refusal; H v Fetal Assessment Centre reopened the door without walking through it. Do not cite this case for contracting on behalf of an unborn child or the stipulatio alteri — it has nothing to do with either.

Memory hook. The law found a way for parents to say goodbye — without rewriting the statute.

Facts. The case concerned parents' right to bury pre-viable foetal remains — pregnancy losses occurring before 26 weeks' gestation (miscarriages and terminations). Two judgments, two courts: the Gauteng High Court (26 March 2021) declared ss 18(1)–(3) and 20(1) of the Births and Deaths Registration Act 51 of 1992 unconstitutional for making no provision for a burial order; the matter then went to the Constitutional Court (15 June 2022) for confirmation.

Legal question. Does the Births and Deaths Registration Act prohibit the burial of pre-viable foetal remains, and if so, is it constitutional?

Judgment. The High Court declared the relevant provisions unconstitutional; the Constitutional Court declined to confirm the invalidity, interpreting the Act to permit burial without needing to strike down the provisions.

Significance. Addresses the intersection of the law of persons and constitutional rights around pre-viable foetal remains. Illustrates that the nasciturus fiction and the legal-personality framework interact with parents' constitutional rights.

Exam tip. Distinguish from stillbirths (which already had burial rights). This case is about pre-viable losses — before 26 weeks. Cite the two judgments separately: the High Court declaration of invalidity (2021 (4) SA 307 (GP)) and the Constitutional Court refusal to confirm it ([2022] ZACC 20) are different decisions by different courts — do not run them together as one citation.

Memory hook. A good deal doesn't bind a minor — and antenuptials can't be patched up after 'I do'.

Facts. A minor concluded contracts (including an antenuptial contract) without proper assistance, and the question of binding effect arose.

Legal question. Is a minor's unassisted contract binding, and can an antenuptial contract be ratified after the wedding?

Judgment. The court held the unassisted minor was not bound and rejected the benefit theory.

Significance. Foundational authority on the minor's unassisted contract, rejection of the benefit theory, and the enrichment measure. Also rules antenuptial contracts unratifiable after marriage.

Exam tip. Cite to reject the 'benefit theory' and for the antenuptial timing rule. Remember: enrichment = lesser of minor's remaining gain or major's remaining loss.

Memory hook. A bad deal forced on a minor can be unwound.

Facts. A minor (assisted/bound) had entered a contract for a house that proved unsuitable for the minor's needs.

Legal question. Will restitutio in integrum be granted to a bound minor where the contract was prejudicial?

Judgment. Restitutio was granted — the house was unsuitable for the minor.

Significance. A successful example of restitutio in integrum for a prejudiced minor. Establishes that prejudice is judged at the time of contracting.

Exam tip. Use as the 'granted' example; contrast with Fouché (fraud) and Skead (later prejudice).

Memory hook. You can't ask equity to rescue your own fraud.

Facts. A minor sought restitutio but had been fraudulent in concluding the contract.

Legal question. Is restitutio in integrum available to a minor who acted fraudulently?

Judgment. Restitutio was refused because of the minor's fraud.

Significance. Shows the equitable limits of restitutio in integrum; fraud bars the remedy.

Exam tip. Fraud bars restitutio — pair with Wood (granted) and Skead (timing).

Memory hook. Bad luck later isn't the same as a bad bargain at the start.

Facts. A minor sought to set aside a contract, but the prejudice complained of arose only after the contract was concluded.

Legal question. Can restitutio be granted where prejudice arose only after the contract?

Judgment. Restitutio was refused — the prejudice arose only afterwards.

Significance. Fixes the timing of the prejudice enquiry for restitutio in integrum.

Exam tip. The prejudice must exist at conclusion, not merely emerge later.

Memory hook. Keep the deal going as an adult, and you've adopted it.

Facts. A person who had contracted as a minor continued to perform/act on the contract after reaching majority.

Legal question. Can a contract concluded during minority be ratified by conduct after majority?

Judgment. The post-majority conduct amounted to ratification.

Significance. Illustrates ratification by conduct on reaching majority.

Exam tip. Watch for conduct after the 18th birthday that affirms the deal.

Memory hook. The lie only counts if it did the persuading.

Facts. A minor misrepresented their age/status to induce the other party to contract.

Legal question. When is a fraudulent minor bound by a contract induced by their lie?

Judgment. The court examined whether the misrepresentation in fact induced the contract.

Significance. Clarifies the inducement requirement for the fraudulent-minor scenario.

Exam tip. Test causation — did the lie actually induce the contract?

Memory hook. No contract liability — but fraud is still a wrong.

Facts. A minor fraudulently misrepresented their status, causing loss to the other party.

Legal question. Is a fraudulent minor liable in delict for the loss caused?

Judgment. Delictual liability of the fraudulent minor was recognised.

Significance. Confirms the delictual route against a fraudulent minor where contract fails, and that the Aquilian action requires dolus.

Exam tip. Contract fails, but the Aquilian action (delict) may succeed — keep the two separate. Must prove dolus.

Memory hook. Independence is proved by the alleger, factor by factor.

Facts. A minor with a job and independent living arrangements was alleged to be emancipated.

Legal question. What factors establish tacit emancipation, and who bears the onus?

Judgment. The court weighed the emancipation factors on the evidence.

Significance. The leading factors-and-onus authority for tacit emancipation.

Exam tip. Run the L·I·B·A factors and place the onus on the alleger.

Memory hook. Letting a child drift isn't setting them free in law.

Facts. A minor lived with little parental control; the question was whether this amounted to emancipation.

Legal question. Does a guardian's neglect, without active consent, amount to tacit emancipation?

Judgment. Emancipation was not established on mere neglect.

Significance. Pins the key element of emancipation on the guardian's active consent.

Exam tip. Look for active consent, not just absence of supervision.

Memory hook. Judge the child in front of you, not a number.

Facts. A child caused harm and the question was the standard for the child's delictual accountability.

Legal question. How is a child's delictual accountability assessed?

Judgment. The court favoured a subjective assessment of the particular child.

Significance. The leading authority on children's delictual accountability. Establishes both the subjective test for capacity and the reasonable-adult standard once capacity is found.

Exam tip. Assess the actual child's maturity, not just the age band. If culpae capax: use the reasonable-adult standard.

Memory hook. Uninformed consent is no consent — and you repay only what's left.

Facts. A guardian consented to a minor's contract, but without being properly informed of its material terms; the other party later sought to hold the minor liable.

Legal question. Is the guardian's consent valid where it was not properly informed, and how is any enrichment claim measured?

Judgment. The consent was treated as ineffective and the enrichment claim was reduced.

Significance. Illustrates the informed-consent requirement and the 'still enriched' limit on a minor's enrichment liability.

Exam tip. Test whether the guardian's consent was truly informed; measure enrichment by what remains.

Memory hook. Signing on autopilot doesn't bind the child.

Facts. A father signed a document relating to his minor child's contract 'mechanically', without applying his mind to its contents.

Legal question. Does a guardian's mechanical signature amount to informed consent?

Judgment. The 'mechanical' signing was held not to be valid consent.

Significance. Defines the quality of guardian consent needed to bind a minor.

Exam tip. A signature alone is not consent — the guardian must engage with the terms.

Memory hook. You can consent to the usual — but the unusual must be brought to your attention.

Facts. A guardian consented to a contract on behalf of a minor; the question was whether consent to "typical" contract terms (standard conditions) constituted informed consent.

Legal question. Does a guardian who consents to a contract without knowing all its "typical" standard terms give informed consent?

Judgment. The court addressed the scope of informed consent in relation to typical versus unusual terms.

Significance. Addresses the extent of informed consent required from a guardian — refines the Du Toit principle by recognising that not every term requires specific attention.

Exam tip. Apply alongside Du Toit and Baddeley: the guardian must be informed of material and unusual terms, but typical standard terms may not require specific consent.

Memory hook. The hand-over can stand even if the bargain wobbles.

Facts. A transfer of property was challenged on the basis of a defect in the underlying obligatory contract.

Legal question. Does the real (transfer) agreement depend on the validity of the obligatory contract?

Judgment. The court treated the real agreement as independent of the obligatory contract.

Significance. Clarifies how capacity and intention operate in transfers, separate from the underlying bargain.

Exam tip. Distinguish the obligatory contract from the real (transfer) agreement.

Memory hook. The grown-up answers for their own carelessness, not the child's.

Facts. A 4-year-old child escaped from a school onto a busy road; a lorry driver swerved to avoid the child and was killed.

Legal question. Is a very young child culpae capax, and who bears responsibility for harm connected to the child's conduct?

Judgment. Liability turned on the supervisor's own negligence, not the child's act.

Significance. Comparative authority cited in SA law: young children are culpae incapax. Guardians are not automatically vicariously liable for a child's delict — their own fault (e.g. negligent supervision) is required.

Exam tip. Look for the guardian's own negligence; there is no automatic vicarious liability for a child's delict.

Memory hook. Mature enough to decide — even before 18.

Facts. A challenge was brought to the provision of the Choice on Termination of Pregnancy Act that allows a minor to consent independently to a termination of pregnancy without parental consent, provided the minor is of sufficient maturity.

Legal question. Is a minor constitutionally entitled to consent independently to a termination of pregnancy?

Judgment. The court confirmed the constitutionality of the relevant provision of the Choice Act.

Significance. Confirms that minority does not automatically require parental consent for a termination — the minor's maturity is determinative, consistent with the Children's Act ethos of evolving capacity.

Exam tip. Distinguish from the 1998 Christian Lawyers case (which dealt with the foetus's personhood). The 2005 case is about the minor's consent capacity.

Memory hook. If you don't understand what you're doing, the law won't hold you to it.

Facts. A party challenged a juristic act on the basis that they were mentally ill at the time and could not understand what they were doing.

Legal question. What is the primary test for mental-illness incapacity in private law?

Judgment. The court established the cognitive limb as the primary test for mental-illness incapacity.

Significance. The foundational case for the cognitive test for mental-illness incapacity in SA law. Establishes that understanding the transaction is the baseline requirement.

Exam tip. Start with Pheasant (cognitive limb), then add Lange (volitional limb) for a complete analysis.

Memory hook. Understanding the act doesn't help if a delusion drove it.

Facts. A spouse sought to set aside a juristic act on the basis of the other's mental illness, even though that person appeared to understand the act.

Legal question. Is a person mentally ill where they understand an act but are motivated to perform it by delusions?

Judgment. The act was held invalid for want of capacity on the delusion ground.

Significance. Expanded the cognitive test (Pheasant) by adding the volitional limb — even apparent understanding is irrelevant if an insane delusion drove the decision.

Exam tip. Even apparent understanding doesn't save an act driven by delusion. Apply both Pheasant (cognitive) and Lange (volitional) in every mental-illness capacity question.

Memory hook. A low IQ score is not incapacity — could he understand this contract? The insurer could not prove otherwise.

Facts. A man took out a life policy (R100 000, doubling to R200 000 for accidental death) and was later killed by a car. The insurer repudiated, alleging non-disclosure and that he had lacked the capacity to contract at all. He had tested at IQ 51–61 as a child and attended a special class — but by the time of the contract he lived independently, paid his rent on time, read newspapers, cooked, and worked as a salesman. On the DSM-III classification an IQ of 50–70 is mildly, not severely, intellectually disabled — a concession the insurer's own expert made under cross-examination.

Legal question. Had the insurer proved that the insured lacked the mental capacity to understand and appreciate the contract he concluded?

Judgment. The Appellate Division (per Vivier JA, Hefer JA concurring; Schutz JA dissenting) held the insurer had failed to discharge the onus of proving incapacity. The policy was a straightforward one, and the insured's independent daily functioning told against incapacity. The appeal succeeded and the R200 000 was awarded.

Significance. A straightforward application of the Pheasant/Lange capacity test to a person with a mild intellectual disability — it does not innovate on the test. It shows capacity is assessed transaction by transaction, that a low IQ score does not by itself establish incapacity, and that the onus rests on whoever alleges it. (Its longer-term doctrinal legacy is actually in insurance law, on the materiality of non-disclosure — later criticised in Clifford v Commercial Union 1998 (4) SA 150 (SCA).)

Exam tip. Use Theron for two points: capacity is measured against the specific transaction, and the party alleging incapacity bears the onus. Do not claim it created a separate "rational decision-making" requirement — the judgment does no such thing; the enquiry remains the single Pheasant/Lange test. Pair with Pheasant (understanding) and Lange (delusions).

Memory hook. A curator assists the mind; it doesn't switch it off.

Facts. A person had been declared incapable of managing their affairs and a curator had been appointed to the estate; the question was whether the person retained any capacity to act.

Legal question. Does a declaration of mental illness and the appointment of a curator strip the person of all capacity to act?

Judgment. De Villiers JP held that such a person retains the right to contract and deal with property to the extent they are de facto capable of doing so.

Significance. Confirms that capacity can fluctuate — curatorship gives assistance where needed; it is not a blanket removal of capacity.

Exam tip. Curatorship is not total incapacity — ask whether the person was in fact lucid/capable at the moment of the act.

Memory hook. Drunk enough to lose your reason = no contract at all (in SA).

Facts. A contract was concluded by a party who was severely intoxicated at the time.

Legal question. What degree of intoxication voids a contract, and is the contract void or voidable in SA?

Judgment. Rumpff J held the SA position to be voidness where the party was non compos mentis.

Significance. The leading SA intoxication authority and the SA/English divergence. The threshold is destruction of reason — not merely impairment.

Exam tip. Never say 'voidable' for SA intoxication — it is VOID. The threshold is very high: complete destruction of reason.

Memory hook. The spendthrift is treated like a minor — the deal merely limps, it doesn't die.

Facts. A declared prodigal concluded a contract; the question was its validity and whether the curator could ratify.

Legal question. Is a prodigal's unassisted contract void or voidable?

Judgment. Van Winsen J treated the prodigal like a minor; the contract was voidable and ratifiable.

Significance. The crucial distinction from mental illness (void, unratifiable).

Exam tip. Prodigal = like a minor (voidable, ratifiable); mentally ill = void, unratifiable.

Memory hook. Wherever you are in law, you have a home — and only one.

Facts. A question of domicile arose in the context of a matrimonial matter — where was the relevant party legally domiciled?

Legal question. What are the foundational principles of domicile in South African common law?

Judgment. The court laid down the basic common-law principles of domicile.

Significance. The locus classicus for the foundational common-law principles of domicile in SA: the rules of necessity (everyone has a domicile) and singularity (only one at a time).

Exam tip. State Mason for the foundational rules before discussing domicile of origin or choice.

Memory hook. Old law demanded absolute certainty — the Act relaxed the grip.

Facts. A husband was claimed to have acquired a domicile of choice in a new country; the question was whether his intention to settle was sufficiently fixed.

Legal question. What intention is required to acquire a domicile of choice under the common law?

Judgment. The Appellate Division applied the strict permanent-intention standard — mere intention to remain for an indefinite period was insufficient at common law.

Significance. The strict pre-Domicile Act standard for domicile of choice. Now superseded by the Domicile Act 3 of 1992, which replaced "permanently" with "for an indefinite period."

Exam tip. Eilon states the old (strict) common-law position. Always note that the Domicile Act 3 of 1992 changed the standard to "indefinite period" — Eilon is historical context.

Memory hook. Body and mind must arrive together — only then does a new legal home take root.

Facts. A question arose under the Domicile Act 3 of 1992 as to when a new domicile of choice was acquired.

Legal question. Under the Domicile Act 3 of 1992, when does a person acquire a domicile of choice?

Judgment. The court applied the Act and held that domicile of choice requires the simultaneous presence of factum and animus manendi.

Significance. The leading application of the Domicile Act 3 of 1992. Confirms that both physical presence and indefinite-settlement intention must exist at the same time.

Exam tip. Grindal is the Act-era authority — use it (not Eilon) for current law. Remember: both factum and animus manendi must coexist.

Memory hook. Gone for years isn't enough — the law demands proof, not just absence.

Facts. A person had been absent and unheard of for a period; an application was made to the court for a presumption of death.

Legal question. What is the correct legal standard for a presumption of death in South African law?

Judgment. The court established the flexible probabilities-based approach to presumption of death, rejecting arbitrary time periods.

Significance. The locus classicus for the common-law presumption of death in SA. Establishes the flexible factual test — not a mechanical time rule.

Exam tip. Cite Beaglehole for the flexible test; emphasise that time alone is never enough — all circumstances must point to death on a balance of probabilities.

Memory hook. The evidence speaks louder than the calendar.

Facts. A person had disappeared while swimming — a bathing suit was found, there was an eyewitness, and a bank manager testified. The question was whether the court should grant a presumption of death.

Legal question. Can a presumption of death be granted based on circumstantial evidence rather than mere passage of time?

Judgment. The court granted the presumption of death based on the compelling circumstantial evidence.

Significance. Reinforces Beaglehole: arbitrary timelines are rejected. Circumstantial evidence of death is sufficient on a preponderance of probabilities.

Exam tip. Use alongside Beaglehole to illustrate that strong circumstantial evidence (not just time) can ground the presumption.

Memory hook. The sea takes its toll faster — time and danger weigh together.

Facts. A person disappeared at sea (a maritime disappearance); the applicant sought a presumption of death.

Legal question. How must a court balance duration of absence against the probability of danger in granting a presumption of death?

Judgment. The court granted the presumption of death by balancing the duration of absence and the probability of acute danger on a balance of probabilities.

Significance. Illustrates the flexible weighing process: type of disappearance and inherent danger are factors in the probability assessment.

Exam tip. Apply the balancing exercise from Parker: duration of absence × probability of danger = preponderance of probabilities.

Memory hook. Running away from your creditors isn't dying — and the law won't pretend otherwise.

Facts. A person had disappeared, but credible evidence suggested they had a motive to disappear intentionally — to evade financial trouble.

Legal question. Will a presumption of death be granted where there is evidence of a plausible motive to disappear deliberately?

Judgment. The court refused the presumption of death because the evidence of a deliberate disappearance to evade financial obligations was credible.

Significance. Shows the limits of the presumption: where the alternative of deliberate disappearance is plausible, the court will not presume death.

Exam tip. Always check for an alternative explanation for the absence. A plausible motive to disappear blocks the presumption.

Memory hook. When no one can say who died first, the law calls it a tie — and no one inherits.

Facts. Two individuals died in the same disaster and it could not be determined which one died first.

Legal question. What is the legal presumption when individuals die simultaneously or in circumstances where the order of death cannot be determined?

Judgment. The court applied the commorientes presumption — simultaneous death was presumed and no inheritance between the deceased occurred.

Significance. The leading case on commorientes (simultaneous death). Establishes the presumption of simultaneous death and its consequence: neither estate benefits from the other.

Exam tip. Commorientes = presumed simultaneous death. Consequence: no inheritance between them. Highly relevant in succession disputes after disasters (e.g. car accidents, fires).

Memory hook. Biology fixed it at birth — until the law decided it didn't have to.

Facts. A marriage was challenged on the basis that one party had undergone a male-to-female sex reassignment. The English court had to determine whether the legal sex was the biological sex at birth or the post-operative sex.

Legal question. What determines legal sex — biological sex at birth or post-operative status?

Judgment. Ormrod J held that sex for the purposes of marriage was determined by biology at birth — the marriage was therefore void because both parties were, in law, male.

Significance. The English case that originated the biological/chromosomal test (the "Ormrod test") for legal sex. This test was adopted into SA law in W v W (1976) but has since been displaced by the Alteration of Sex Description and Sex Status Act 49 of 2003.

Exam tip. Cite Corbett for the origins of the Ormrod test; note immediately that it was adopted in W v W but is no longer current SA law after Act 49 of 2003.

Memory hook. Old law froze sex at birth — the Constitution thawed it.

Facts. A man married a person who had undergone a male-to-female sex-change operation. When the marriage later broke down, its validity was put in issue.

Legal question. Did the reassignment operation change the person's legal sex, so that a valid marriage existed?

Judgment. The court held the marriage void — the operation did not change the party's legal sex.

Significance. Adopted the Ormrod test (from Corbett) into SA law. Explicitly overridden by the Alteration of Sex Description and Sex Status Act 49 of 2003.

Exam tip. Cite W v W only as the historic position, then show how Act 49 of 2003 and Fourie changed it. Never present it as current law.

Memory hook. Your marriage doesn't prevent you from being yourself in law.

Facts. Applicants who had undergone sex reassignment sought to have their sex descriptions altered in terms of the Alteration of Sex Description and Sex Status Act 49 of 2003 but faced departmental delay and refusal.

Legal question. Must the Department of Home Affairs process sex-alteration applications without delay, and must a valid marriage be dissolved before a spouse can alter their sex description?

Judgment. The court granted relief requiring the Department to process applications timeously and ruled that the existence of a valid marriage was not a bar to alteration.

Significance. A key application of the Alteration of Sex Description Act — confirms both the right to alter and the obligation of the state to facilitate it without imposing barriers not found in the Act.

Exam tip. Use KOS for the procedural dimension: Home Affairs must act. Note the important ruling that marriage does not block alteration.

Memory hook. The Act gives you the right — the court makes sure the state delivers it.

Facts. The applicant sought to alter their sex description under the Act but faced prolonged administrative delay by the Department of Home Affairs.

Legal question. Does administrative delay by Home Affairs in processing sex-alteration applications undermine the statute and attract judicial relief?

Judgment. The court confirmed that departmental delay is reviewable and granted practical relief to compel processing.

Significance. Confirms that KOS (2017) remains binding and is enforced. Administrative failure to implement the Act attracts judicial intervention.

Exam tip. Pair with KOS. Together they confirm that the Act's rights are enforceable and the state cannot delay indefinitely.

Memory hook. Marriage is no longer defined as 'man and woman'.

Facts. A same-sex couple challenged the common-law and Marriage Act definition of marriage as a union between one man and one woman.

Legal question. Is the man-and-woman definition of marriage consistent with the rights to equality and dignity?

Judgment. The Constitutional Court declared the definition invalid but suspended the order to give Parliament time to cure the defect — which it did through the Civil Union Act 17 of 2006.

Significance. Removed the man-and-woman requirement for marriage. Together with Act 49 of 2003, it leaves W v W of historical interest only.

Exam tip. Use Fourie to show the constitutional shift away from the W v W premise; pair it with the Civil Union Act 17 of 2006.

Memory hook. She won at Strasbourg — on the fairness of her hearing, not on the rule itself.

Facts. Caster Semenya, an intersex South African athlete with naturally elevated testosterone, was barred from certain women's events unless she lowered it. She challenged World Athletics' DSD regulations before the Court of Arbitration for Sport, then the Swiss Federal Tribunal (which supervises CAS awards, CAS being seated in Lausanne), and finally the European Court of Human Rights — against Switzerland, not World Athletics.

Legal question. Does differential treatment based on natural biological characteristics amount to unfair discrimination — and did the Swiss courts review that question adequately?

Judgment. CAS (2019), by 2:1, found the regulations discriminatory but a necessary, reasonable and proportionate means of preserving fair competition. The Swiss Federal Tribunal (2020) dismissed the appeal on the sole ground available to it (substantive public policy). The ECtHR Chamber (2023), 4:3, found Switzerland violated Art 14 with Art 8, and Art 13 — on the inadequacy of Swiss judicial review, not on the validity of the regulations. The Grand Chamber (10 July 2025) narrowed this: a violation of Art 6 § 1 (fair hearing) only, the Swiss court having failed to conduct the rigorous review required; the Art 8/13/14 complaints were held inadmissible for want of a jurisdictional link to Switzerland.

Significance. An illustrative comparative study of sex/gender status and equality reasoning, and of the limits of judicial review over compulsory sports arbitration. Note what it did not do: no court annulled the DSD regulations, which remained formally in force (World Athletics replaced them with new eligibility rules from 1 September 2025 of its own accord).

Exam tip. Use as a comparative illustration only — never cite it as SA authority or claim a court applied s 9. Be precise about the outcomes: Semenya's ECtHR win was about the quality of the hearing she received in Switzerland, not a ruling that the regulations were unlawful. No South African court has ruled on the matter.

Memory hook. The company is its own person — not just a name tag for its owner.

Facts. Mr Salomon sold his business to a company he controlled. When the company became insolvent, creditors argued that Salomon and the company were really one and the same and that he should be personally liable for its debts.

Legal question. Is an incorporated company a separate legal entity distinct from its members, even when one person controls it?

Judgment. The House of Lords upheld the separate legal personality of the company. Salomon was not personally liable for its debts.

Significance. The locus classicus establishing the principle of separate corporate legal personality. The foundation for company law and the limited liability principle worldwide.

Exam tip. Use Salomon for the core principle of separate legal personality of juristic persons. Note that the "corporate veil" may sometimes be pierced in exceptional circumstances (fraud, sham, etc.) — but Salomon is the starting point.

Memory hook. Love — and the Constitution — recognised both mothers.

Facts. Two women in a same-sex life partnership had twins by artificial insemination. The first applicant provided the ova; the sperm came from an anonymous donor; the second applicant carried and gave birth. The birth-mother could be registered without difficulty — but the genetic mother could not, because she was not married to her. Note the irony students miss: it was the genetic mother who had to litigate for recognition, and the partner with no genetic link whose parenthood the law accepted automatically.

Legal question. Are children produced by artificial fertilisation of a woman who is a partner in a same-sex life partnership deemed legitimate?

Judgment. The Constitutional Court declared the relevant legislative provisions unconstitutional insofar as they failed to recognise the children as legitimate and the non-biological partner as a parent.

Significance. A landmark Constitutional Court decision on the status of children born to same-sex partners, based on the equality and dignity guarantees in the Constitution.

Exam tip. Use for the intersection of the status of extra-marital children and same-sex partnerships. Note that this preceded the Civil Union Act (Fourie) but was based on the same constitutional values.

Memory hook. The father of an extra-marital child has constitutional rights too.

Facts. Under the then Child Care Act, only the mother's consent was required for the adoption of an extra-marital child. The biological father challenged his exclusion.

Legal question. Is it unconstitutional to require only the mother's (and not the father's) consent for the adoption of an extra-marital child?

Judgment. The Constitutional Court declared the relevant provision unconstitutional insofar as it excluded the unmarried father's consent.

Significance. The leading authority on the unmarried father's constitutional right to be heard in adoption proceedings. The Children's Act 38 of 2005 now gives effect to these rights through the s 21 criteria for parental responsibilities.

Exam tip. Use Fraser to show that the Constitution protects the unmarried father's rights — distinguish the pre-1994 position. Pair with the Children's Act s 21 criteria for current law.

Memory hook. Children's rights begin at home — the state steps in when home fails.

Facts. A large group of people, including children, were evicted from a squatter settlement and left without shelter. They relied on, inter alia, the children's right to shelter in s 28(1)(c) of the Constitution.

Legal question. Does the state owe children a direct duty to provide shelter under s 28(1)(c) of the Constitution?

Judgment. The Constitutional Court held that the state's housing programme was unreasonable and ordered a revised programme, but clarified that s 28(1)(c) was not a free-standing right enforceable directly against the state independent of parental failure.

Significance. A foundational constitutional authority on children's socio-economic rights and the relationship between parental and state obligations. The primary duty to care for children rests with parents.

Exam tip. Use Grootboom for the limits of s 28(1)(c): it is not an unconditional right against the state. The state's s 26/27 duties are a separate question. Always link to the Children's Act's parental responsibility framework.