South Africa Case Law

J.J and Others v Minister of Home Affairs and Another (3626/2024)

J.J and Others v Minister of Home Affairs and Another (3626/2024) [2024] ZAFSHC 286 (12 September 2024)

Court

Free State High Court, Bloemfontein

Case number

3626/2024

Judge

Mhlambi

The court found that section 26(1)(a)-(c) of the Births and Deaths Registration Act 51 of 1992 and Regulation 18(2)(a) of the Regulations on the Registration of Births and Deaths, 2014, discriminate on the basis of gender by failing to afford male spouses the right to assume the surname of their female spouse upon marriage. This statutory and regulatory framework entrenches patriarchal norms and violates the constitutional right to equality and dignity. The limitation imposed does not meet the rational connection and proportionality tests and is not justifiable under the limitation clause. Th…

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• Gender Discrimination
• Surname Change
• Births And Deaths Registration Act
• Marital Status
• Equality Clause

Van Wyk and Others v Minister of Employment and Labour (2022-017842)

Van Wyk and Others v Minister of Employment and Labour (2022-017842) [2023] ZAGPJHC 1213; [2024] 1 BLLR 93 (GJ); (2024) 45 ILJ 194 (GJ); 2024 (1) SA 545 (GJ) (25 October 2023)

Court

South Gauteng High Court, Johannesburg

Case number

2022-017842

Judge

Sutherland DJP

The court found that the BCEA's parental leave provisions unfairly discriminate between mothers and fathers, and between different categories of parents (birth, adoptive, commissioning), in violation of sections 9 and 10 of the Constitution. The differentiation is not justified by physiological differences except for the period of recovery after childbirth, and the statutory scheme fails to recognise egalitarian family structures and equal caregiving roles. The restriction of adoption leave to children under two years is irrational. The statutory framework is inconsistent with the objectives…

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• Equality Clause
• Parental Leave
• Unfair Discrimination
• Basic Conditions Of Employment Act
• Unemployment Insurance Fund
• Human Dignity

Nesengani Royal Family and Others v Douglass and Others (148/2020)

Nesengani Royal Family and Others v Douglass and Others (148/2020) [2022] ZALMPTHC 9 (14 November 2022)

Court

Limpopo High Court, Thohoyandou

Case number

148/2020

Judge

Naudè-Odendaal

The court found that the exclusion of females from succession to traditional leadership in the Nesengani Royal Family was based solely on gender and constituted unfair discrimination, violating Section 9(3) of the Constitution. The administrative actions taken by the Respondents in identifying and recognizing the 1st Respondent as Senior Traditional Leader failed to consider constitutional imperatives of equality and gender non-discrimination. The process was procedurally unfair, as the Applicants' submissions were disregarded and undue weight was given to the 11th Respondent's version. Custo…

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• Gender Discrimination
• Customary Law Succession
• Promotion Of Administrative Justice Act
• Bill Of Rights Limitation
• Traditional Leadership
• Equality Clause

Taljaard and Another v Land and Agricultural Development Bank of South Africa and Others (1094/2022)

Taljaard and Another v Land and Agricultural Development Bank of South Africa and Others (1094/2022) [2022] ZANCHC 59 (11 October 2022)

Court

Northern Cape High Court, Kimberley

Case number

1094/2022

Judge

Mamosebo

The court found that the exclusion of individuals and trusts from business rescue under Chapter 6 of the Companies Act does not amount to unconstitutional discrimination. The differentiation is rationally connected to a legitimate government purpose, namely, the efficient rescue and recovery of financially distressed companies. The applicants failed to establish that the exclusion denied many natural persons and trusts their right to protection under Chapter 6 or that it resulted in unfair discrimination. The court declined to extend business rescue to natural persons and trusts by way of rea…

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• Business Rescue
• Constitutional Validity
• Winding Up
• Sequestration
• Equality Clause
• Powers Of Liquidators

Rafoneke and Others v Minister of Justice and Correctional Services and Others (Makombe Intervening) (CCT 315/21, CCT 321/21, CCT 06/22)

Rafoneke and Others v Minister of Justice and Correctional Services and Others (Makombe Intervening) (CCT 315/21, CCT 321/21, CCT 06/22) [2022] ZACC 29; 2022 (6) SA 27 (CC); 2022 (12) BCLR 1489 (CC) (2 August 2022)

Court

Constitutional Court

Case number

CCT 315/21, CCT 321/21, CCT 06/22

Judges

Kollapen, Madlanga, Majiedt, Mathopo, Mhlantla, Mlambo, Tshiqi, Unterhalter

The Constitutional Court held that section 24(2) of the Legal Practice Act, which restricts admission as legal practitioners to citizens and permanent residents, is not unconstitutional. The differentiation is rationally connected to legitimate governmental purposes, including the protection of opportunities for citizens and permanent residents and the regulation of the legal profession in the public interest. The exclusion of other foreign nationals, even those lawfully entitled to live and work in South Africa, does not amount to unfair discrimination under section 9 of the Constitution, as…

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• Legal Practitioners Admission
• Unfair Discrimination
• Equality Clause
• Immigration Status
• Legislative Rationality
• Section 9 Constitution

Modise v The Master of the High Court of South Africa and Others (2019/42772)

Modise v The Master of the High Court of South Africa and Others (2019/42772) [2021] ZAGPJHC 595 (4 November 2021)

Court

South Gauteng High Court, Johannesburg

Case number

2019/42772

Judge

K.E. Matojane

The High Court dismissed a constitutional challenge to intestate succession and maintenance provisions, holding the applicant lacked locus standi and the marriage was invalid.

• Equality Clause
• Intestate Succession
• Maintenance Of Surviving Spouses
• Bigamy
• Locus Standi
• Customary Marriage

Rafoneke v Minister of Justice and Correctional Services and Others (3609/2020)

Rafoneke v Minister of Justice and Correctional Services and Others (3609/2020) [2021] ZAFSHC 229; [2022] 1 All SA 243 (FB); 2022 (1) SA 610 (FB) (16 September 2021)

Court

Free State High Court, Bloemfontein

Case number

3609/2020

Judges

C.J. Musi, P.E. Molitsoane, G.J.M Wright

Section 24(2)(b) of the Legal Practice Act, read with section 115, differentiates between citizens/permanent residents and non-citizens regarding admission as legal practitioners. The court found that while the differentiation is rationally connected to legitimate government purposes—such as regulating the profession, protecting the local job market, and ensuring compliance with immigration and employment laws—the blanket exclusion of non-citizens from admission as non-practising legal practitioners is irrational and unconstitutional. The exclusion does not serve a legitimate governmental pur…

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• Admission Of Legal Practitioners
• Citizenship Discrimination
• Legal Practice Act
• Bill Of Rights Limitation
• Equality Clause
• Employment Of Foreign Nationals

Dzumba v Minister of Defence and Military Veterans and Another (12619/20)

Dzumba v Minister of Defence and Military Veterans and Another (12619/20) [2021] ZAGPPHC 524; (2021) 42 ILJ 2485 (GP) (17 August 2021)

Court

North Gauteng High Court, Pretoria

Case number

12619/20

Judge

Cochrane

The court found that while the PTI course assessment criteria differentiate between SANDF members who can and cannot swim, this differentiation is rationally connected to the legitimate purpose of ensuring that Physical Training Instructors are competent and able to safely conduct water-based training and act as lifeguards. The criteria are applied consistently to all members, and the applicant was not treated unfairly. The decision of the Military Ombud to dismiss the complaint was lawful and reasonable, as the entry requirements serve a valid military objective and do not amount to unfair d…

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• Military Ombud Act
• Unfair Discrimination
• Review Of Administrative Action
• Equality Clause
• Selection Criteria

EJ and Others v Haupt NO (63756/2020)

EJ and Others v Haupt NO (63756/2020) [2021] ZAGPPHC 556; 2022 (1) SA 514 (GP) (11 August 2021)

Court

North Gauteng High Court, Pretoria

Case number

63756/2020

Judge

Neukircher

The court held that section 40 of the Children’s Act must be interpreted to include spouses in a civil union, in line with the constitutional imperative to avoid discrimination and promote equality. The use of the word 'spouse' in section 40(1) demonstrates legislative intent to include same-sex couples, and the exclusionary wording in section 40(3)(b) is limited to the context of a male gamete donor. The court found that both applicants, as spouses in a civil union, automatically acquire full parental rights and responsibilities in respect of the minor child born via artificial insemination,…

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• Civil Union Act
• Parental Rights And Responsibilities
• Artificial Insemination
• Birth Registration
• Equality Clause
• Best Interests Of Child

Cape Bar v Minister of Justice and Correctional Services and Others (9435/19)

Cape Bar v Minister of Justice and Correctional Services and Others (9435/19) [2020] ZAWCHC 51; [2020] 3 All SA 413 (WCC); 2020 (6) SA 165 (WCC) (10 June 2020)

Court

Western Cape High Court, Cape Town

Case number

9435/19

Judges

Mabindla-Boqwana, Papier

The Court held that the Regulations and Rules governing the composition of Provincial Councils under the Legal Practice Act do not constitute unfair discrimination against black people or women. The quota system guarantees representation for historically disadvantaged groups and is rationally connected to the transformation and restructuring objectives of the Act. The inclusion of a seat for a white man does not invalidate the scheme, as the majority of seats are reserved for disadvantaged groups. The Minister acted within his powers in promulgating the Regulations, and the scheme is neither…

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• Legal Practice Act
• Affirmative Action
• Equality Clause
• Unfair Discrimination
• Judicial Review
• Quota Systems