South Africa Case Law

Zolani Godloza and Another v The State

The majority held that condonation should be granted and that this Court's jurisdiction is engaged because the applicants' complaints implicate the right to a fair trial and the right not to be deprived of freedom arbitrarily and without just cause. Leave to appeal was granted, and the appeal was partially upheld by setting aside the Supreme Court of Appeal's order and substituting an order granting the applicants leave to appeal to the High Court, to be heard with Mr Grifhs' appeal if practically possible. The majority did not decide the merits of the conviction and sentence directly.

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• Single-witness evidence
• Cautionary rule
• Fair trial
• Right to freedom and security of the person
• Equality
• Leave to appeal

(a) Werner van Wyk and Others v Minister of Employment and Labour (b) Commission for Gender Equality and Another v Minister of Employment and Labour and Others

The challenged BCEA and UIF provisions unlawfully differentiate between birth mothers and other parents, and the age cap on adoption-related leave for children below two years is also unjustified. The discrimination impairs equality and human dignity and cannot be saved by the Minister’s reliance on administrative or budgetary considerations. The constitutional invalidity should be confirmed, suspended for 36 months, with interim reading-in for the BCEA and deferred supplementary relief for the UIF Act and the age-cap issue if needed.

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• Maternity leave
• Parental leave
• Adoption leave
• Commissioning parental leave
• Surrogacy
• Unfair discrimination

Jana Jordaan and Others v Minister of Home Affairs and Another

Section 26(1)(a)-(c) of the Births and Deaths Registration Act differentiates on the ground of gender by allowing only women, and not men, equivalent surname-assumption options after marriage. That differentiation serves no legitimate government purpose, unfairly discriminates on the listed ground of gender, and infringes dignity. The limitation is not justifiable under section 36. The declaration of invalidity is therefore confirmed and suspended for 24 months with interim reading-in style relief to avoid continued discrimination while Parliament remedies the defect.

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• Equality
• Unfair discrimination
• Dignity
• Surname change after marriage
• Confirmation of constitutional invalidity
• Remedy and suspension of invalidity

(a) KG v Minister of Home Affairs and Others and (b) EB (Born S) v ER (Born B) N.O. and Others (Consolidated matters)

Section 7(3) creates a relevant distinction only within old ANC marriages between dissolution by divorce and dissolution by death, and also between old and new ANC marriages. The exclusion of death cases lacks a rational and legitimate governmental purpose, while the limitation to old ANC marriages constitutes indirect discrimination on the ground of gender because it disproportionately prejudices women in new ANC marriages. The impugned distinctions are therefore unconstitutional, and the defects are cured only temporarily by reading in an interim remedy into the Matrimonial Property Act pen…

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• Equality
• Unfair discrimination
• Redistribution order
• Divorce
• Death of spouse
• Antenuptial contract

VJV and RT v Minister of Social Development and Another

Section 40 of the Children’s Act unjustifiably limits equality, dignity, and children’s best interests by restricting automatic parental rights and responsibilities in artificial fertilisation cases to married persons; this exclusion unfairly discriminates on marital status and, in its impact on lesbian permanent life partners, indirectly on sexual orientation. No legitimate governmental purpose or section 36 justification was shown, so the constitutional invalidity was confirmed and remedied by reading in permanent life partner wording, with suspension and transitional consequences.

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• Equality
• Unfair discrimination
• Sexual orientation
• Marital status
• Human dignity
• Best interests of the child

V.J.V and Another v Minister of Social Development and Another (27706/2021)

V.J.V and Another v Minister of Social Development and Another (27706/2021) [2022] ZAGPPHC 114 (22 February 2022)

Court

North Gauteng High Court, Pretoria

Case number

27706/2021

Judge

C Van Veenenendaal

The High Court held that section 40 of the Children's Act unjustifiably excluded permanent life partners from automatic parental recognition in artificial fertilisation cases.

• Children's Act
• Artificial Fertilisation
• Permanent Life Partnership
• Parental Responsibilities
• Equality And Dignity
• Reading In Remedy

Jane Bwanya v The Master of the High Court, Cape Town

The majority held that excluding surviving partners in permanent opposite-sex life partnerships, where reciprocal duties of support had been undertaken, from maintenance under the Maintenance of Surviving Spouses Act and inheritance under the Intestate Succession Act constituted unfair discrimination on the ground of marital status and was not justified under section 36 of the Constitution; the impugned omissions were therefore unconstitutional and invalid, with reading-in and suspension to allow Parliament to cure the defects.

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• Equality
• Dignity
• Maintenance claims by surviving partners
• Intestate succession
• Permanent life partnerships
• Reading-in

Voice of the Unborn Baby NPC and Another v Minister of Home Affairs and Others (16402/17)

Voice of the Unborn Baby NPC and Another v Minister of Home Affairs and Others (16402/17) [2021] ZAGPPHC 161; 2021 (4) SA 307 (GP) (26 March 2021)

Court

North Gauteng High Court, Pretoria

Case number

16402/17

Judge

MNGQIBISA-THUSI

The court found that the impugned provisions of BADRA and Regulation 1 unconstitutionally exclude bereaved parents from burying fetal remains in cases of pregnancy loss other than stillbirth, infringing their rights to dignity, privacy, religion, and equality. The differentiation based on viability was not rationally connected to a legitimate government purpose, as the emotional impact of pregnancy loss is similar regardless of gestational age. The court held that the denial of burial rights is insensitive and disrespectful to bereaved parents and that the law should accommodate those who wis…

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• Right To Burial
• Dignity
• Equality
• Privacy
• Religious Freedom
• Constitutional Invalidity

Mahlangu and Another v Minister of Labour and Others

Section 1(xix)(v) of COIDA irrationally and unfairly excludes domestic workers employed in private households from statutory compensation, thereby violating equality and dignity rights and denying vulnerable workers and their dependants access to social security protections; no justification was shown, so the declaration of invalidity is confirmed with immediate retrospective effect from 27 April 1994.

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• Constitutional validity of statutory exclusion
• Equality
• Human dignity
• Access to social security
• Intersectional discrimination
• Retrospective constitutional invalidity

Bwanya v Master of the High Court, Cape Town and Others (20357/18)

Bwanya v Master of the High Court, Cape Town and Others (20357/18) [2020] ZAWCHC 111; 2020 (12) BCLR 1446 (WCC); 2021 (1) SA 138 (WCC) (28 September 2020)

Court

Western Cape High Court, Cape Town

Case number

20357/18

Judge

PMagona

The court held that the Intestate Succession Act unfairly excluded surviving opposite-sex life partners with reciprocal support duties, but left the maintenance claim bound by precedent.

• Intestate Succession
• Maintenance Of Surviving Spouses
• Unfair Discrimination
• Reading In Remedy
• Equality And Dignity
• Stare Decisis