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South Africa Case Law

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Constitutional law

(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.

Source excerpt

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

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.

Source excerpt

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

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.

Source excerpt

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

Daniels v Scribante and Another

The Constitutional Court held that, properly interpreted in light of the Constitution and ESTA’s purpose, an occupier’s right to reside includes the right to make basic improvements reasonably necessary to render the dwelling fit for human habitation and consistent with human dignity; owner consent is not a prerequisite, but the occupier must meaningfully engage the owner or person in charge and may not ignore their rights.

Source excerpt

  • Security of tenure
  • Occupier rights under esta
  • Human dignity
  • Improvements to dwelling
  • Consent of owner
  • Meaningful engagement
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Constitutional law

Teddy Bear Clinic For Abused Children and Another v Minister of Justice and Constitutional Development and Another (Justice Alliance of South Africa, Trustees for the time being of the Women's Legal Centre Trust and Tshwaranang Legal Advocacy Centre as Amici Curiae)

Sections 15 and 16 of the Sexual Offences Act unjustifiably limit the rights to dignity, privacy and the best interests of adolescents under section 28(2) because they criminalise developmentally normative consensual sexual conduct, create stigma and reporting burdens, and are not shown on evidence to be rationally connected to their protective purpose; less restrictive and more targeted means are available. The provisions are therefore unconstitutional to the extent that they impose criminal liability on children under 16 years.

Source excerpt

  • Consensual sexual conduct between adolescents
  • Criminalisation of statutory rape and statutory sexual assault
  • Human dignity
  • Privacy
  • Best interests of the child
  • Remedy and suspension of invalidity
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Constitutional law

The Citizen (1978) (Pty) Ltd and Others v McBride

The Court held that amnesty under section 20(10) does not make it false to describe Mr McBride as having committed murder or to discuss those historical acts in public debate, because the provision expunges the conviction and its legal consequences but not the underlying historical facts. Most of the Citizen's criticism of Mr McBride was therefore capable of amounting to protected comment on a matter of public interest. However, the separate allegation that he lacked contrition was false and unsupported by the stated facts, so liability and damages were confined to that statement. Leave to ap…

Source excerpt

  • Freedom of expression
  • Human dignity
  • Fair comment
  • Amnesty under the promotion of national unity and reconciliation act
  • Truth and reconciliation
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Constitutional law

Lesbian and Gay Equality Project and Eighteen Others v Minister of Home Affairs and Others

The common law definition of marriage and section 30(1) of the Marriage Act are inconsistent with the Constitution to the extent that they make no provision for same-sex couples to enjoy the status, benefits and responsibilities afforded to heterosexual couples; the Court suspended the declaration of invalidity for 12 months to allow Parliament to cure the defect, with read-in relief to follow if Parliament failed to act timeously.

Source excerpt

  • Same-sex marriage
  • Equality and non-discrimination
  • Human dignity
  • Remedial constitutional orders
  • Direct access
  • Separation of powers
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Constitutional law

South African Human Rights Commission and Another v President of the Republic of South Africa and Another

Section 23 of the Black Administration Act and its regulations were racially discriminatory and inconsistent with equality and dignity, and the rule of male primogeniture in its application to intestate succession unfairly discriminated against women and extra-marital children. The Court held that these provisions could not be justified and that, pending legislation, the Intestate Succession Act would apply to the estates formerly governed by section 23, with tailored accommodation for polygynous unions and transitional arrangements.

Source excerpt

  • Intestate succession
  • Male primogeniture
  • Equality
  • Human dignity
  • Children’s rights
  • Remedy and constitutional invalidity
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Constitutional law

Shibi v Sithole and Others

Section 23 of the Black Administration Act and the Regulations for the Administration and Distribution of the Estates of Deceased Blacks were invalid because they imposed a racially discriminatory parallel system of intestate succession that violated equality and dignity, and the customary rule of male primogeniture was invalid to the extent that it excluded or hindered women and extra-marital children from inheriting property. The Court held that section 1(4)(b) of the Intestate Succession Act was also invalid, and that the Intestate Succession Act should apply interimly to estates previousl…

Source excerpt

  • Intestate succession
  • Equality discrimination
  • Human dignity
  • Children’s rights
  • Male primogeniture
  • Remedy and retrospective invalidity
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Constitutional law

Bhe and Others v Khayelitsha Magistrate and Others

The majority held that section 23 of the Black Administration Act and the associated regulations were a racist, discriminatory parallel succession regime inconsistent with the Constitution; the customary law rule of male primogeniture, as applied to intestate succession, unfairly discriminated against women and extra-marital children and could not be justified; section 1(4)(b) of the Intestate Succession Act was also invalid. The Court accordingly replaced the impugned regime with the Intestate Succession Act as an interim measure, subject to tailored treatment for polygynous unions and a lim…

Source excerpt

  • Equality
  • Human dignity
  • Children’s rights
  • Intestate succession
  • Male primogeniture
  • Retrospectivity
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About this LexChat collection

South Africa decisions are organised by court, judge, legal area and indexed issue so a practitioner can move from a proposition to a citable authority with the surrounding context intact.

Source links and collection timestamps are retained alongside the indexed records.