Theme 8 Cases

Question 1

S v M

Answer 1

It is not seen as an overbearing and unrealistic trump of
other rights by in the same manner as any other constitutional right, subject to limitation in terms of
section 36 of the Constitution.

Question 2

WW v EW

Answer 2

1) Guardianship now includes the common law concepts of
“custody” and “access.”
2) The court held that the intention of the legislature was to bring the common law concepts in line with the broader
statutory terms and, while the use of the common law terminology would not be wrong, it is preferable to use the
new terminology in pleadings and court orders.

Question 3

YG v S

Answer 3

1) The court declared that the common law defence of reasonable chastisement was unconstitutional and no longer applied in our law.
2) This means that a parent can no longer defend themselves against a charge of assault, on the basis of chastising a child

Question 4

VVJ and Another v Minister of Social Development and
Another

Answer 4

1) The court declared section 40 unconstitutional as the section was held to violate artificially conceived children’s right to family and/or parental care, and
their right to have their best interests considered of paramount importance

Question 5

QG and Another v CS and Another

Answer 5

1) In the case of surrogacy and adoption the court assigns full parental responsibilities and rights to the applicants.
2) The procedure and consequences of
adoption and surrogacy are entirely regulated by statute in Chapters 15 and 19 of the Children’s Act.

Question 6

J v J

Answer 6

1) Due consideration does not mean that rhe decision making party is bound to give effect to the wises and
views of the co-holder

Question 7

TC v SC

Answer 7

The High Court may, in the exercise of its inherent jurisdiction as the upper guardian of minor children:
1)Appoint a parenting coordinator (PC) with the consent of both
2) Appoint a PC without consent of both parties

Question 8

Van Der Linde v Van Der Linde

Answer 8

1) Despite the rejection of the rule, however, the court still ruled that the maternal preference rule is a helpful departure point.

Question 9

Ex Parte Citchfield

Answer 9

1) The court held that the fact that the mother gave birth to the child was a factor to consider, but it would amount to unfair discrimination in terms of the Constitution if the court attached excessive and improper weight to it when the decision of care was made

Question 10

Van Der Linde v Van Der Linde

Answer 10

The court held that all things being equal,
siblings should not be separated
unnecessarily.

Question 11

Van Rooyen v Van Rooyen

Answer 11

The court limited a homosexual parent’s right to contact in specific and detailed terms to protect the child from experiencing “confusing signals” resulting from homosexual behavior.

Question 12

V v V

Answer 12

After the Bill of Rights was enacted, the court criticized the judgement in Van Rooyen and held that in the view of
the equality clause it is legally wrong to describe homosexual orientation as abnormal.