Family law case studies

Question 1

What are the facts in the KLVC case?

Answer 1

The appellant of the case was the biological mother of the minor and the first respondent was the biological father. The appellant was appealing the ruling of the court that ruled that the respondent met the requirements to acquire full rights and responsibilities on the basis of inadequate counsel.

The appellant argued that because of the wording of section 21(1)(b) of the children’s act requirements where never fully met and only one requirement was met, and even if they were met at the time of the removal of the monitor the respondent was not practicing them at that time

Question 2

What is the issue in the KLVC case?

Answer 2

Did the first respondent acquire full rights and responsibilities before the minors removal from the republic or after?

Question 3

What are the principles in the KLVC case?

Answer 3

• The applications defence was found on the judgement that stated all the requirements have to meet according to section 21(b) to acquire full rights and responsibilities according to RRS v DAL
• The respondents defence was that section 21 enables father’s to gain automatic rights and responsibilities if he meets all the requirements and this protects the child’s right to parental care according to section 28 of the Constitution

Question 4

What is the application in the KLVC case?

Answer 4

The respondent consented to be identified as the minors father meeting the requirements in section 21(b)(i). The respondent met the requirements in section 21(b)(ii) by purchasing necessities for the minor and the respondent offered to put the minor on his medical aid and was denied. The respondent met the requirements of section 21(b)(iii) contributed approximately R14000 to the minor’s expenses before he was removed from the republic.

Question 5

What is the conclusion of the KLVC case?

Answer 5

The first respondent demonstrated that he met the requirements of section 21 by November 2012 and therefore the applicant required consent to remove the minor from the republic. As this appeal was first abandoned due to insufficient reason the respondent team was granted a dismissal of the case with the costs covered by the appellant.

Question 6

What are the facts in the Wilsnach case?

Answer 6

The first respondent is the father and the second respondent the mother states they should get the deceased child’s inheritance as they are the parents. The third respondent the grandmother says she has a claim as she was awarded parental rights and responsibilities of guardianship by the court, and was M (the deceased child) caregiver and M stayed with her from birth to death. M’s parents were never married or cohabited, the father never fulfilled any of the clauses of section 21 (b).

M was born disabled. M was awarded money from the state of R21 000 0000 due to problems at the hospital that led to his disability; there was R15 000 0000 left at the time of his death.

The mother lived with the grandmother at the time of M’s birth but suffered depression and never had a job. The grandmother had to give up her job to be Ms caregiver as Ms mother was often not present and would leave M unattended

The grandmother went to court to attain rights and responsibilities in concern of M and the application concluded that the grandmother be awarded full rights and responsibilities with M living with the grandmother and the mother having contact as per the advise of the family advocate

Question 7

What is the issue in the Wilsnach case?

Answer 7

Who is the parent referred to in section 1(1)(d) of the Intestate Succession Act and therefore who inherits this money?

Question 8

What are the principles in the Wilsnach case?

Answer 8

• Intestate Succession Act Section 1(1)(d) which states if the child does not outlive the parents their inheritance must be shared equally by both parents
• The children’s act definition of parent as well as the children’s act section 21 was considered to figure out who is defined as a parent
• Children’s Act 53 section 28 the best interest is paramount should continue after the child’s death

Question 9

What is the application in the Wilsnach case?

Answer 9

The father of M did not acquire full rights and responsibilities of M and the father was recognised by name only but for all other purposes was not the parent. The quality of mothering is defined by the catering and loving and not gender and the grandmother was in essence a parent.

Question 10

What is the conclusion in the Wilsnach case?

Answer 10

The mother of M is recognised by the children’s act as a parent having full rights and responsibilities and therefore is considered a parent for all purposes and is entitled to M state. The father of M was not recognised as a parent according to section 1(1)(d) and is not entitled to any part of M’s state. The mother and grandmother are declared parents of M in purpose of section 1(1)(d) of the ISA and shall inherit in equal shares the full estate after the estate has covered each respondent’s legal chargers.

Question 11

What are the facts in the RC v HC case?

Answer 11

The respondents son in question is BC and 4 years old, the application is not his biological father. The applicant is a divorced account who is unable to have children

The respondent and applicant met on tinder when the respondent was 6 months pregnant with BC. The respondent moved in with the applicant when BC was 1 years old.
There was a close relationship between BC and the applicant but DC was feeling dismissed and unwanted as he couldn’t compete for DC attention.

The respondent was prepared for some contact between the applicant and the boys when she moved out as she didn’t want BC to feel the respondents absence and was intimidated by litigation. By the time of signing the affidavit the respondent was allowing contact and phone calls but now she has taken a decision to terminate contract due to the intensity of the relationship

The respondent after having initially agreeing to the assessment in part A now opposes both parts of the application and states it’s because she’s realised that the assessment wanted in part A will tend to have a negative impact on family relationships and BC

Question 12

What is the issue in the RC v HC case?

Answer 12

Is it in BC best interest of BC that a psychologist assessment be done and that contact be allowed pending the assessment report and application for final relief in part B?

Question 13

What are the principles in the RC v HC case?

Answer 13

• Section 23(1) of the Children’s Act states any person can apply for contact or care if the court deems it necessary
• Section 23(2) states factors that must be taken into account before the application is accepted
• Section 24 deals with the assignment of guardianship by applying to the High court
• Section 24(2) lists factors that must be taken into account for an application.
• Section 24(3) states that if the child already has a child the applicant must submit reasons why the child’s existing guardian is unsuitable.

Question 14

What is the application in the RC v HC case?

Answer 14

The task is to see that the best interest of the child is being served by allowing the applicant to embark on the litigation process not only to see if the child should be assessed. The behavior of the applicant has clearly caused the family pain in how he relates differently with the boys.

Section 24 shows that it is not necessarily in the child’s best interest to have more than one person having parental rights. Section 24(3) requires that the applicant must submit reasons why the existing guardian is not suitable; this was not done and the provision states that if the child has an available capable guardian there is no reason for another. If the child is cared for properly there would need to be a compelling motivation as to why another person should be accorded legal rights to the child

Question 15

What is the conclusion in the RC v HC case?

Answer 15

The applicant has not established that the best interests of BC are served by granting the applicant any legal rights. The applicant has failed to establish locus standi when considering the fact and the last thing BC needs is the father figure such as the applicant.

The expert opinion sought won’t have any real effect on the application and isn’t in the best interest of the child. The respondent stopping contact between the applicant and BC is in his best interest and this application shouldn’t go further and the decision to revoke contact stands. Part A is dismissed with costs

Question 16

What are the facts in the Ex Parte Three Surrogacy Applications?

Answer 16

The question had to be considered before three surrogate parents applications could be considered. Nine legal scholars including four legal professors where admitted as amici curiae

The three surrogacy applicants are known as the appellants. The amici and appellants are referred to as the parties and their stance is there should not be any general requirement that children should be subject to an eval

The parties don’t seek a ban on child evaluations but think they should be considered if necessary in the case

Question 17

What is the issue in the Ex Parte Three Surrogacy Application?

Answer 17

Should it be mandatory that a clinical psychologist assess the child(ern) of surrogate parents and surrogate mothers?

Question 18

What are the principles of Ex Parte Three Surrogacy Application?

Answer 18

• Parliament has enacted procedural and subsidiary safeguards and boundaries in chapter 19 of the Children’s Act 38 with the entire agreement done with the court’s oversight
• The parties state that if it is a principle it will be at odds with the law that the child’s best interests must be examined on a case by case basis. The parties submit that focusing on the emotional wellbeing of the mother is sufficient and in the best interest of the children
• The parties state that in accord with the provisions of section 295(c)(ii) of the Children’s Act as interpreted by this Court in Ex Parte KAF and others they should admit the psych eval on a case by case basis based on the emotional availability of the surrogate mother

Question 19

What is the application in Ex Parte Three Surrogacy Application?

Answer 19

Parties presented evidence of the serious risks of psych assessments on children.
The parties and experts all endorse the criteria and hinge their argument in this Court on the emotional availability of the mother as provided in the last aspect in KAF 2 particularly, whether the surrogate mother is emotionally available for her own child or children and that this is sufficient and ensures the best interest of the child is protected. The focus on the emotional availability of the mother in KAF 2 is in line with section 7 of the Children’s Act 38

Question 20

What is the conclusion in Ex Parte Three Surrogacy Application?

Answer 20

Section 28 demands that the child’s best interests must be determined with reference to the concrete facts before a court, on a case by case basis and a court must consider the particular circumstances of the child before the court and a general requirement that all children be accessed is not in line with this.

The court cannot endorse a mandatory assessment of all children before they accept a surrogacy agreement but they will require one if necessary.

Question 21

What are the facts of Ex Parte MS?

Answer 21

The application is for confirmation by the Court of a surrogate agreement, commissioning parents are the first and second applicants and the surrogate mother is the third applicant

The surrogate mother was 33 weeks pregnant at the time of the agreement brought to court. The pregnancy was a result of the surrogate mother donor egg and the sperm of the commissioning father. The insemination took place after a verbal agreement between parties

The first and second applicants are married and are citizens. The first applicant was diagnosed with a chronic medical condition that interfered with her ability to fall pregnant and so was advised to do fertility treatments, none of which worked and led to two miscarriages. Medical experts then advised that her condition was permanent and irreversible and were advised to consider an egg donor and surrogacy.

The applicants entered a confirmed surrogacy agreement with the two failed surrogates before meeting the third surrogate and decided to wait for a viable pregnancy before they contacted their attorney and they just entered a verbal agreement.

The third applicant has four children of her own and confirmed she entered into the agreement with altruistic reasons.

Question 21

What is the issue in Ex Parte MS?

Answer 21

Whether the high court should confirm a surrogacy agreement that was only put into writing and sought confirmation after the artificial insemination and pregnancy? And if so what is the correct approach to be adopted in such cases?

Question 22

What are the principles in Ex Parte MS?

Answer 22

• Chapter 19 of the Children’s Act 38 of 2005 governs surrogacy agreements it also states the agreement must be vetted and confirmed by the high court before steps are taken that may result in the child’s conception
• Section 292 of the Act states what is required for a valid surrogacy agreement it must be in writing, signed by all parties and confirmed by the High Court
• Section 295 regulates the discretion of the court and states the requirements for a surrogacy agreement to be accepted
• Section 296(1)(a) states fertilisation cannot take place before the agreement is confirmed by the court
• Section 303(1) read with section 305(6-7) that artificial insemination in surrogacy without the courts authorisation is punishable by a fine or imprisonment
• Section 297(1) deals with the effects of a valid surrogacy agreement on the status of the child while 297(2) deals with the status due to an invalid agreement
• In Ex parte WH and others it stated a surrogacy agreement is a contract that is unique in its subject matter and aimed at ensuring the best interests of the child

Question 23

What is the application in Ex Parte MS case?

Answer 23

The Act does not deal with validity of the written agreement due to the non-compliance. The absence of the written agreement made it unlawful by common law however by seeking to confirm the agreement they render it enforceable between them. The statutory interpretation must promote the Bill of Rights according to section 39(2) of the Constitution

Section 296 and 301 render artificial insemination without confirmation from the court unlawful and a punishable offence however it does not render the invalidity of the agreement as a penalty. To interpret the Act as the court can’t confirm the agreement after insemination has taken place would undermine the constitutional rights of the parties involved and automatically make the agreement invalid and child the surrogates child and impinge on the dignity of the commissioning parents as they would be denied the opportunity to experience a family life of their own and impeded on their right to make reproductive choices

An invalid surrogacy agreement could have potentially detrimental effects on the legal and parental status of the child born to the surrogate mother.

Question 24

What is the conclusion in the Ex Parte MS?

Answer 24

The provisions concerning the power of the court to confirm a surrogacy agreement does not stop the court from agreeing even if the surrogate mother is already pregnant due to a verbal agreement

The Act doesnt stop a court from confirming the agreement after the artificial insemination of the surrogate mother. This doesn’t mean parties are free to ignore the agreement process but that discretion must be used to seek the best interest of the child

In addition to the normal information required for a surrogacy agreement the court could require that the applicants must place sufficient facts explaining why they are only seeking confirmation at such a late stage and why the court should confirm even though they breached the Act. The parties also have to prove that they didn’t try to circumvent the legal proceedings and their agreement stood within the scope of a lawful surrogacy agreement.

The period in which a post-fertilisation agreement can be confirmed is only before the child is born and cannot be made after birth so sufficient time is needed for the court to go over the fact and therefore the application shouldn’t be presented too late. If found that the application is unconfirmed or rejected the child is deemed the surrogates and the parties need to seek other relief such as adoption. Granting of the surrogacy agreement will only be if it is in the best interest of the child.

The court is satisfied that the applicants met all the requirements and confirmed the specific surrogate motherhood agreement.

Question 25

What are the facts in the Butter case?

Answer 25

The inter allia (eastern cape high court) declared that a universal partnership existed between the appellant and respondent of all the assets acquired during 1998 and 15 November 2007.

The respondent and appellant met in 1988 and fell in love, they then had two children, in 1993 they cohabitated as a married couple and the appellant started a business which succeeded, in 2007 the appellant married another woman.

The inter allia declared the universal partnership to be dissolved from the date of the marriage and that the respondent was entitled to 30% of the net of the assets.

Question 26

What is the issue in the Butter case?

Answer 26

Whether the High Court had authority to vary its own judgement order and whether the error was the High courts or the respondents legal representative?

Question 27

What is the application in the Butters case?

Answer 27

The respondents attorney on 22 November 2012 sent a letter to the appellant attorney stating there is no need for a liquidator and receiver they can submit an audit statement stating what assets were acquired by both parties in the time period and then 30% will be paid, the aim was to exclude the bulk of the assets and his source of wealth as a businessman. The respondent argued that the year 1998 was an error by the high court and should have been 1989 which is when the relationship commenced.

The appellant argued that 1998 was not an error as it is the date the parties agreed to marry. The appellent council stated that the amendment made by the High court was court and that the court cannot at a late stage interfere with the order in a sense of an amendment of the particular claims.

Question 28

What is the conclusion in the Butters case?

Answer 28

As seen in the previous judgement the date upon when the universal partnership commenced was spoken to in the high court and found that Potheir requirements were met as the contributions didn’t have to be financial.

The appellent case is not about when the partnership began but his refusal to share anything with the respondent. Once the court establishes a universal partnership, the establishment date is irrelevant.

The rule is once a court has pronounced a final judgement it has no authority to correct, alter or supplement it as its jurisdiction has gone. The court concludes that the High Court did make a typographical error and the order must therefore be endorsed by this court. The appellant is to pay the respondents cost in this appeal including cost of counsel.

Question 29

What is the issues in the Bwanya case?

Answer 29

Can the serving partner in a permanent heterosexual partnership where reciprocal duties existed claim maintenance under the Maintenance of Surviving Spouse Act? Whether the serving permanent partners are entitled to inherit from the deceased partner under the Intestate Succession Act?

Question 30

What is the facts in the Bwanya case?

Answer 30

The applicant Ms Jane Bwanya seeks to appeal to the court against the constitutionality of the definition of survivor under section 1 of the Maintenance of Surviving Spouse Act, this is due to the fact that spouse only makes reference to marriage. Ms Bwanya also wants the court to confirm the unconstitutionality of the section 1(1) of the intestate Succession Act made by the high court.

Ms Bwanya and the deceased Mr Anthony S Ruch entered into a relationship in 2014 and moved in together later that year. Mr Ruch and Ms Bwanya relationship was publicly known to those around them, they referred to each other as husband and wife. Mr Ruch provided financially for the family, while Ms Bwanya provided love, care and emotional companionship. Mr Ruch and Ms Bwanya were also planning to open a business together. In November 2015 Mr Ruch proposed and they began making arrangements for the lobola negotiations. In April 2016 two months before their trip Mr Ruch passed away and in his will he had his mother who passed on as his sole heir.

The second respondent, the executor of Mr Ruch estate, rejected both claims on the basis that under the two Acts Ms Bwanya did not qualify for claimed benefits. Ms Bwanya and the excitor entered into an agreement and she was awarded 3 million due to her two claims this was made by the court, however she continues with her claim of unconstitutionality.

The Women’s Legal Center Trust and the commission for gender equality were admitted as amici curiae.

Question 31

What are the principles in the Bwanya case?

Answer 31

• Data in 2016 shows that approximately 3.2 million South Africans cohabit outside of marriage
• Ms Bwanya challenged the constitutionality on the basis of the claim was that it violated the her rights to equality and dignity
• The majority in Volks case found that the surviving partner in a permanent heterosexual partnership doesn’t have claim to maintenance under the Maintenance of Surviving Spouse Act and this is not unconstitutionally unfair.
• In Satchwell case the benefits of Judges spouses was considered in terms of section 8 and 9 of the Judges Remuneration and Conditions of Employment Act this didn’t include same sex partners and the court held the exclusion of same sex life partners was unjustifiable and discriminate unfairly
• In the Du Toti case lesbians who lived in permanent partnership wanted to adopt but couldn’t according to section 17(a) and (b) of the Child care act which made it impossible for them to adopt the children living with them as their was no joint adoption of same sex life partners which the court ruled was unjustifiable and discriminated on the grounds of marital status and orientation which limited their dignity and the child’s best interest
• In J case two lesbians had a child through surrogacy however section 5(1)(a) Children’s Status Act didn’t register them as a mother due to their marital status based on their sexual orientation which the court stated was unfair based on discrimination
• Section 2(1) of the Maintenance of Surviving Spouses Act affords surviving spouses the right to lodge maintenance claims against the estate of their deceased sposes, the act defines survivor as the surviving spouse if marriage
• In the Dawood case Judge O’Regan states families come in many shapes and sizes and the definition of families changes as traditions and social practices change
• In the Gory case judge Van Heerdwn states that once the statutory provision that allowed same sex couples to marry their is no reason to distinguish between unmarried heterosexual couples and homosexual couples in respect to intestate succession.

Question 32

What are is the application in the Bwanya case?

Answer 32

The high court dismissed the constitutional challenge of the Maintenance Act due it being bound by the judgement of Volks and declared the Interstate Act unconstitutional due to its exclusion.

Ms Bwanya argues that the exclusion of permanent heterosexual partners from section 2(1) unjustifiably limits her right not to be unfairly discriminated against on the grounds of marital status and dignity.

The court states that the reasoning in Volks and judgement is wrong. The court agrees with Volks that marriage and families are important in society. There is a substantial number of families cohabitation outside marriage. Evidence presented by WLCT the amicus curiae that there is not always a choice to marry, the court does not agree with Volks choice argument.

In the Paixao the familial nature of the issue was central in the conclusion of the supreme court. Courts have to accept the existence of permanent life partnership can be proved regardless of the type of permanent partnership. Based on the Daniels case the court’s reasoning is that the right of a spouse to inherit in intestacy may be interpreted on a need basis.

Question 33

What is the conclusion in the Bwanya case?

Answer 33

The exclusion of permanent heterosexual life partners from benefiting in section 2(1) amounts to discrimination on the grounds of marital status. Permanent life partnerships are similar to marriages however there are differences. The court concludes that denial of section 2(1) maintenance benefit to permanent life partners constitutes unfair discrimination.

The purpose of section 2(1) is to protect the surviving spouse from destitution. The factors that need to be considered for a permanent partnership to be accepted are whether they have children, whether they are associated in public as an intimate couple and appropriate proof. Section 2(1) failed the justification exercise and therefore is declared constitutionality invalid.

The exclusion of same sex permanent partners is unfair and the exclusion of permanent opposite sex life partners amounts to discrimination in section 9(3) of the constitution. The exclusion of surviving permanent opposite life partners from benefiting under section 1(1) of the Intestate Succession Act amounts to unfair discrimination that is unreasonable and unjustifiable.

The remedy is the confirmation of the high courts order of the interstate act being unconstitutional and reading in changes in the Maintenance Act and in the Interstate Act to include permanent life partners. The Minister of Justice must pay the cost of counsel.

Question 34

What are the facts of the EW case?

Answer 34

The applicant and respondent were previously involved in a romantic relationship for a period of 8 to 9 years until 2022 when the respondent vacated the common home, three young children were born from this relationship. An amount of approximately R100 000 per month was historically paid to the applicant by the respondent, and the respondents trust paid for the family home, the applicant and minor children also beneficiaries of this trust.

When the parties commenced their romantic relationship they were still entangled with their previous partners and the applicant had not terminated her relationship with her former boyfriend and the respondent remained married until 2019. The respondent and applicant partook in a wedding ceremony abroad akin to a wedding and they manifested their intention to be bound together in a permanent relationship in the presence of witness and they received a wedding certificate.

The applicant sought cash maintenance of 56000 per month and payment of her medical and motor vehicle expenses. In 2022 the applicant obtained an interim order in Eastern Circuit Local Division in respect of the children’s maintenance for payment of: R69 000 per month cash, all of their educational expenses, all of their medical expenses and the rental of R28 500 per month as well as monthly utilities in respect of the home. Her father has tendered R750 000 as security in the event of this court awarding her interim maintenance.

Question 35

What are the issues of the EW case?

Answer 35

-Whether development of the common law is required and appropriate
- Whether the applicant should succeed in her claim for interim maintenance and contribution towards her cost

Question 36

What are the principles of EW case?

Answer 36

• In the EFF v Manuel case, when seeking development of common law there is a responsibility to show understanding of why the rule must be assessed and the parameters of the proposed development must be expressed and the consequences of amending the law in that way examined
• In Bwanya case chief Justice states common law principles will guide or help a court to determine whether it has been satisfactory demonstrated that a legally enforceable duty of support exists in permanent life partnership that bears at least some hallmarks of a marriage relationship
• Mighty Solutions Orlando Service Station v Engen Petroleum case states that before a court proceeds to develop the common law must: determine exactly what the common law position is; consider the underlying reason for it; enquire whether the rule offends the spirit of the Bill of Rights; consider precisely how the common law court be amended and take into account the wonder consequences of the proposed area of law
• In the Carmichele case the Constitutional Court states that when the court exercises its authority to develop the common law Judges should be mindful that the major engine for law reform should be the legislature and the principle of the separation of powers should be respected and that particularly where the factual situation is complex and the legal position uncertain issues involving the development of common law should be decided on the facts in which the decision has been made are determined after hearing all the evidence and can be given in the light of all the circumstances of the case with regard to all the relevant facts
• Eskom Holdings v Vaal River constitutional court case held that there is no impediment to a court finding that there is enough pointing to the determination of the legal question in the applicants favour to ground interim relief
• In the Kenya case cohabitation and the legal consequences are that the courts could presume that existence of any fact which is thought likely to have happened regarding the common course of natural events, human conduct and public and private business in relation to the facts of a particular case

Question 37

What is the application in the EW case?

Answer 37

The primary issue in the pending action is whether or not the parties relationship was a permanent life-partnership in terms whereof they had undertaken reciprocal duties of support towards each other as the applicant alleges.

When the issue regarding the final relief was brought to the applicants counsels stated that if the findings of this procedure was in favour by development of common law then the pending action would be withdrawn and if it’s not favourable that would be the end of the action. The applicant argued that the lack of legal recourse for life partners to claim maintenance from the termination of their partnership is constitutionally unacceptable since it discriminates on marital status and gender. The applicant maintains that since the publication of the draft Domestic Partnership Bill in 2008 nothing has been done by the legislature to protect those who bear the brunt of non-recognition.

As pointed out by the respondent The South African law reform commission(SALC) has been researching and developing proposals for legislative reform to regulate all domestic partnerships. SALC proposes that life partnerships is defined as any life partnership where the parties cohabit and have assumed permanent responsibility for supporting each other.
The amicus provide narratives of women describing the circumstances and reasons behind their life partnerships

Question 38

What is the conclusion in the EW case?

Answer 38

It is not for the court to advise the applicant, both counsel for the respondent and the amicus appeared to be tolerant of the stance adopted by the applicants counsels despite the pending action, therefore it’s not prudent for the court to take it further

The applicant already has a common law remedy (Bwanya case) and her entitlement to maintenance rests squarely on that remedy.

In reaching these conclusions we make it clear that they pertain only to the particular case presented by the applicant and are not intended to be of some broader implication or consequence.

A permanent romantic relationship is not synonymous with a permanent life partnership where parties undertook reciprocal duties of support to one another within the context of familial settings.

The applicant clearly relied on legal advice throughout and should have been permitted the security offered by her father to advance her case in the pending action so as far as reasonably possible equally of arms at the trial.

Question 39

What is the minor application in the EW?

Answer 39

When dealing with issues with a constitution flavour a court must guard against applying black letter law.

The applicants case is that this court should encourage the development of common law in a manner that gives effect to the extent that the common law legislation do not adequately do so, this must be done by recognizing a legal duty of support for unmarried permanent life partners following the termination of the life partnership

The applicant states she can’t wait until the termination of the pending action as she will be left destitute in the interim. The objective of the interim relief is to restore the status quo between the parties pending the action. The applicant’s case is that she seeks the same protection awarded to spouses upon divorce insofar as maintenance is concerned

Question 40

What is the minor conclusion in the EW case?

Answer 40

A core issue in this application is the issue of prejudice, the applicant will suffer if the interim relief is not granted to her and the prejudice the respondent will suffer if the interim relief is granted

The lack of recognition of permanent life partnerships is constitutionally unacceptable because it discriminates based on both marital status and gender and the discrimination here maintains the traditional power structure in which the partner dictates the nature of the relationship and its consequences. The current legal position of life partners and the lack of recognition of the rights of life partners is unequal and discriminatory

Given the reasoning adopted in the majority judgement of Eskom l am inclined to grant interim financial relief, in summary a court should be alive and prepared to grant interim relief in situations that dictate that a constitutional wrong is corrected.

Question 41

What are the facts in the KOS case?

Answer 41

The issue came to court because transgender persons that got married under the marriage Act are experiencing difficulties by the Department of Home Affairs to change their sex, under the Alteration of Sex Description and Sex Status Act

The first to sixth applicants are three married couples, they entered marriage as a heterosexual couples after they married they underwent treatment to change from a male to female. The first applicant is KOS, the second GNC and the third WJV. The applications to change their sex and gender had the blessings and support of their spouses.

KOS was raised male, got married in 2011, a year before she was diagnosed with gender dysphoria and since 2013 has been going hormone therapy. KOS submitted her application in terms of the Alteration Act in 2014 with her wife, the official advised KOS that it must be an offence of some kind and didn’t look at the application, they went to see a different official who accepted the application but expressed reservations about its feasibility. Despite repeated enquiries KOS and her family were unable to obtain any information or feedback about the application. During the prolonged period KOS gradually was coming to look more like a woman. In 2015 KOS approached the Department headquarters in Capetown and set out her unsatisfactory history. It was discovered the Department’s head office in Pretoria had not directed the application or recorded it. The Department head office advised that more information in the form of expert reports was required, specifically a letter from a medical doctor stating the operation was done.

GNC was born male and got married in 1988 and has a daughter born 1992. The spouse has been understanding of GNC and her decision to transition. GNC has undergone gender reassignment surgery, she has succeeded in changing her forename and obtained new identity documents that reflect her appearance as female but her gender still states male. In 2016 the same official who dealt with KOS application stated the Departments computer wouldn’t allow an amendment to her gender as she was married on terms of the Marriage Act.

WJV came close to physically transitioning in the early 1900 but was persuaded by her psychologist that medical intervention might not be necessary. WJV met her partner after getting discharged from the army, married in 1997, WJV told her wife about gender dysphoria before the marriage. WJV commenced the process of physical transitioning in 2012, the official she dealt with advised that it’s better to go about the application in two stages, first changing her name and then applying for her sex description to be altered. As if it was done together It would confuse the system and slow down the application. In 2015 WJV and her spouse was told that as a consequence of the registration of WJV gender change the Department had to delete its record of them being married and the spouses surname was now her maiden name.

The Department states the applications under the Alteration Act can’t be granted while they’re still married due to the fact that they were married under the Marriage Act. The parties were under the impression that only marriages with parties of opposite sex can enter into a marriage under the Marriage Act as S30(1) is unchanged. The respondent contends there is a gap in legislation that needs to be filled if the applicants’ complaints are to be effectively addressed. The respondents accept that there is nothing in the Alteration Act read on its own that supports the notion that the applicant’s marital status has any effect on their obtaining an altered birth certificate.

Question 42

What are the issue in the KOS case?

Answer 42

The relief sought is a delectation that the refusal to process KOS and GNC applications under the Alteration Act is unconstitutional. That the deregistration of WJV marriage is also unlawful and unconstitutional. They also sought interdicts to grant KOS and GNC applications and correct the marriage status of WJV.

Question 43

What are the principles in the KOS case?

Answer 43

• The Alteration Act highlights the legal consequences and formal acknowledgement of the treatments, it allows for alliteration to their birth certificates and birth register upon application to the Department
• Section 3(3) of the Alteration Act stated that the rights and obligations entered into before the alteration are not affected as the Act works prospectively
• S5 of the Divorce Act states that a divorce would be obtainable only if it could be proved that there is an irretrievable breakdown in the marriage or that one of them is suffering from a mental illness or is continuous unconscious
  Civil marriages can be solemnised under the Civil Union Act or Marriage Act
• In the Equality Project cases the court declared that the common law definition of marriage only pertaining to same sex marriages was inconsistent with the constitution and invalid they further declared that s30(1) of the marriage Act should contain the words or spouse after or husband
  In the Bellinger case Lord Nicholls stated that a transexual person is to be distinguished from a homosexual person who is attracted sexually to a person of the same sex
• In the Corbett case Judgement by Ormod J states that sex is an essential determinant of a relationship called marriage and the capacity of natural heterosexual intercourse is essential
• In the judgement of the European Court of Human Rights in the Cossey case states marriage is far more than a sexual union and the capacity for sexual intercourse is not essential
• S237 of the constitution enjoins all constitutional obligations must be performed diligently and without delay

Question 44

What is the application in the KOS case?

Answer 44

The effect of s3(3) of the Alteration Act is that the change in sex has no effect on their mutual martial rights and obligations they ensure as long as the marriage does. Gender reassignment surgery is not a requirement for relief in terms of the Alteration Act

The character of a union entered into in terms of a Civil Act is no different to the Marriage Act and doesn’t have different legal effects or consequences. A person’s marital status does not affect the formulation of their identity number in terms of s7 if the Act

The essence of the respondent’s intentions is that the applicants are victims of a legislative conundrum. The respondents have not identified a single provision if any legislation to which they refer that expressly forbids the processing and positive determination of the transgender spouses applications under the Alteration Act. Strikingly absent from the respondent answer is any acknowledgement of the expressly enshrined constitutional principle that status must be interpreted in a manner consistent with the promotion of the spirit of the Bill of Right. The problem with the implementation of the Alteration Act that the respondents have sought to identify seems to come from their understanding of the Marriage Act and Civil Union Act

The Marriage Act does not contain anything prohibiting a party to be solemnised form undergoing a sex-chnage or obtaining an altered birth certificate, it would be unconstitutional to interpret the Act in a manner that undermines the spirit of the Bill of Rights

The actions of the respondent discriminate under s9(3) of the Bill of Rights and infringes the right to bodily and psychological integrity in s12(2)(b).

Question 45

What is the conclusion in the KOS case?

Answer 45

The Minister cannot rely on any shortcomings in the regulatory record keeping mechanism of the Marriage Act to deny transgender persons their substantive rights under the Alteration Act.

The applicants are entitled in the circumstances to the primary relief sought. The Department deletion of the record of WJV marriage is not taken in terms of any law as the marriage was valid.

It is declared that in terms s172(1)(a) of the Constitution the manner in which the Department handled the matter was unconstitutional. The respondents are authorised to determine applications submitted in terms of the Alteration Act as any person whose sexual characteristics have been altered irrespective of whether the person is married under the Civil union Act or Marriage Act

Question 46

What are the factors in Bwanya that show how the court will decide whether unmarried couples have undertaken reciprocal duties of support?

Answer 46

• the respective ages of the partners
• the duration of the partnership;
• whether the partners took part in a ceremony manifesting their intention to enter into a permanent partnership, what the nature of that ceremony was and who attended it
• how the partnership is viewed by the relations and friends of the partners
• whether the partners share a common abode
• whether the partners own or lease the common abode jointly;
  whether and to what extent the partners share responsibility for living expenses and the upkeep for the joint home
• whether and to what extent one partner provides financial support for the other
• whether and to what extent the partners have made provision for one another in relation to medical, pension and related benefits
• whether there is a partnership agreement and what its contents are; and whether and to what extent the partners have made provision in their wills for one another
• whether the cohabitants have children
• whether they have associated in public as an intimate couple

Question 47

What are the facts and outcome of the Paxio case?

Answer 47

• In the Paixo case Mrs Maria Paxio and Mr Jose Gomes met in 2002 at the time Mr Gomes was married but his wife and him were separated, their relationship grew as well as the relationship with Mrs Paixo daughters and they began cohabiting. Mrs Paxio got retrenched some time later and Mr Gomes became the sole income and paid for everything in the household as well as the daughter fees.
• Their community acknowledged them as husband and wife, Mr Gomes said he would marry her as soon as his divorce was through in Portugal this started in 2005. That year both parties made a will declaring each other as sole heir and the daughter’s as equal sharers.
• In 2006 the divorce in Portugal was finalised and they planned their wedding in Portugal for 2008 the day of Mr Gomes parents wedding anniversary.
• Mr Gomes died in a car accident a few months later after the divorce and Mrs Paixo wanted to claim for loss of support against the Road accident fund.
• The supreme court dealt with the appeal based on the claim that according to Mrs Paixo there was a tactile agreement between the parties and the relationship existed that was like a family relationship and was deserving legal protection and not recognizing it violated her rights to equality and dignity. The court ruled that there was a family relationship that had a duty of support

Question 48

What are the facts of Volks case and the conclusion?

Answer 48

The Volks challenge arose from a permanent heterosexual partnership of Mrs Robinson and Mr Shandling, they lived in a cape town flat in 1981 to 2001 when Mr Shandling died, he was an attorney and she was an independent journalist who was supported by Mr Shandling and she contributed household necessities.
- They were accepted as a couple and Mrs Robinson’s claim was under 2(1) was rejected by the executor and so the constitutional challenge, by the time of the appeal the executor accepted the unconstitutionality but this was not an automatic succuse for Mrs Robinson as the court had to accept it too.
- The courts ruled section 2(1) amounted to discrimination on marital status but the majority ruled it wasn’t unfair due to the importance of marriage and so was not unconstitutional.
- The Volks majority judgement suggests couples who don’t marry choose not to and that through marriage there is a reciprocal duty that doesn’t exist outside of marriage.
- The majority held Mrs Robinson wasn’t being told her dignity is worth less than married people but that in the regard to maintenance permanent life partnership differed fundamentally from marriage and so the unconstitutionality was not confirmed