South Africa: marriage, divorce, inheritance and abortion

Fundamental rights

The Constitution is the supreme law. Its Bill of Rights binds public authorities. It can also bind private people or organisations where the nature of the right and the duty makes it applicable. Equality, dignity, bodily integrity and freedom of expression are among the rights it protects. [ss2,8–12,16]

Social rights can be enforced, but their wording matters. Housing, health care, sufficient food and water require reasonable state measures, within available resources, toward progressive realisation. Basic education has a different guarantee, without that same progressive-realisation wording. Further education does have a progressive-access requirement. Emergency medical treatment may not be refused. [ss26–29]

People may approach a competent court for appropriate relief, including in the public interest or on behalf of others under the standing rules. Evicting someone from their home requires a court order made after considering the relevant circumstances. Rights may be limited only under the constitutional conditions, not simply because an authority finds compliance inconvenient. [ss26(3),36,38]

The South African Human Rights Commission can receive complaints, investigate and pursue appropriate redress. Under its procedures, it may also refer a matter elsewhere or decline it. The Public Protector deals with improper conduct in public administration and may take remedial action, but cannot review court decisions. Legal Aid South Africa assesses eligibility and the type of case before it provides assistance. [ss182–184] [chapter4] [How it works: Legal Aid South Africa]

The Biowatch principle normally protects an unsuccessful private litigant who brings a genuine constitutional case against the state from having to pay the opposing party’s costs. It has exceptions for frivolous, vexatious or manifestly inappropriate litigation, and it does not automatically apply to disputes solely between private parties. It does not pay your own lawyer’s bill, and it does not remove every financial risk. [paras21–26]

South Africa has ratified the African Court protocol, but it has not made the declaration that would allow individuals and NGOs to bring cases directly against it. A complaint to the African Commission is a different route. It is subject to the Commission’s admissibility rules; the Commission may refer eligible matters to the Court. [ratification and Article34(6) declarations]

Sources

• Constitution of the Republic of South Africa — ss2,8–12,16,26–29,36,38,172,181–184
• Biowatch Trust v Registrar Genetic Resources [2009] ZACC14 — Paragraphs 1–4,21–26,43–47 and the operative order; official PDF
• Complaints Handling Procedures — Chapter 4: filing, refusal/redirection, urgency and old complaints
• Basic Information, ratifications and direct access declarations — Ratification & Declaration, list of States and the consequence of not having made a declaration
• How it works: Legal Aid South Africa — Who qualifies and types of case; the whole page is relevant
• Equality Courts guidance — General guidance from the department; not a historical definition of hate speech
• South African Government — Geography and climate
• South African Government — The Constitution
• Department of Justice — Bill of Rights, sections 9, 10, 14
• South African Government — Getting married
• South African Government — Recognition of Customary Marriages Act
• Department of Justice — Constitution, section 211(3)
• Recognition of Customary Marriages Act 120 of 1998 — Sections 3–4,7–8: validity, registration, property and divorce. Section 4(9): non-registration does not itself invalidate the marriage.
• Judicial Matters Amendment Act 15 of 2023 — Sections 14–15, effective 3 April 2024: permanent life partners with reciprocal duties of support, intestate succession and survivor maintenance. Cohabitation alone is insufficient.
• Children’s Act 38 of 2005 — Department of Justice compilation — Relevant sections 7,10,18–24,32–34,40–41,76,230–242 and 292–303. Read section 40 with VJV and commencement notices for amendments; distinguish care, contact, guardianship, childcare, adoption and surrogacy.

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