PVL1501/104/1/2023

Tutorial Letter 104/1/2023

Law of Persons
PVL1501

Semester 1

Department or Private Law

This tutorial letter contains important information

about your module.

BARCODE

Open Rubric
 CONTENTS
1 REGISTRATION OF BIRTH ......................................................................................................... 3
2 DUTY TO BURY THE DECEASED .............................................................................................. 4
3 MINIMUM AGE OF CRIMINAL ACCOUNTABILITY .................................................................... 4
4 ASSIGNMENT OF GUARDIANSHIP BY ORDER OF COURT ..........……..………...……………..4

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Dear Student

This tutorial letter contains some important new developments in the law of persons. As
indicated in Tutorial Letter PVL1501/101/3/2023, tutorial letters that contain additional study
material, such as this one, are part of your study material for assignment and examination
purposes. It is therefore very important that you study this tutorial letter.

1 REGISTRATION OF BIRTH

If you are using the previous edition of the textbook, namely Heaton The South African Law of
Persons 5 ed (2017), it is very important to take note of this important new development.
Students who have the new edition of the textbook (Heaton The South African Law of Persons 6
ed (2021)) may disregard this paragraph, as their textbooks are up to date with the new
development (see pages 9-10). However, keep this new development in mind when you study
the relevant section in the study guide (Learning Unit 3, par 3.3).
Previously, the Births and Deaths Registration Act 51 of 1992 (BDRA) distinguished between
children born of married parents and children born of unmarried parents, when dealing with the
surname under which the child’s birth could be registered. The Act provided that the birth of a
child born of unmarried parents had to be registered under the surname of the child’s mother,
unless the parents jointly requested that the father’s surname be used (s 10(1)(a)). For the birth
to be registered under the father’s surname, it was required that the father had to acknowledge
paternity in writing in the presence of the person to whom the notice of birth was given and
enter his particulars on the notice of birth (s 10(1)(b)). Section 10 did not allow registration
under a double-barrel surname.
In Centre for Child Law v Director-General: Department of Home Affairs (2022 (2) SA 131 (CC))
the Constitutional Court held that this differentiation between children born of married parents
and children born of unmarried parents is unjustifiable. The court found that section 10 of the
BDRA violated the rights of unmarried fathers to equal protection and benefit of the law
(Constitution of the Republic of South Africa, 1996, s 9(1)), and constituted unfair discrimination
against unmarried fathers on the grounds of their sex, gender and marital status (all listed
grounds in s 9(3) of the Constitution). The court also highlighted that the discrimination
constitutes “a barrier to their full participation as parents and perpetuates gendered narratives
about men’s caregiving” (para [52]). Furthermore, section 10 of the BDRA infringed the
unmarried father’s right to dignity (Constitution, s 10).
From the child born of unmarried parents’ perspective, the court held that section 10 of the
BDRA infringed the child’s constitutional right not to be discriminated against on the grounds of
social origin and birth (both listed grounds in s 9(3) of the Constitution), the child’s right to
dignity (Constitution, s 10), and the child’s right have his or her best interests given paramount
importance (Constitution, s 28(2)). For these reasons, the court declared section 10 of the
BDRA to be unconstitutional and ordered that the entire section be severed from the BDRA.
Following this decision, the legal position is as follows: any one of the parents of a child who is
born alive, regardless of their marital status, can give notice of the child’s birth. The notice of
birth can be given under the surname of either the father or the mother of the child, or the
surnames of both parents joined together as a double-barrel surname.

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2 DUTY TO BURY THE DECEASED

On page 33 of the sixth edition of the textbook (2021), Heaton indicates that a burial order is
issued only after a notice of stillbirth has been given. In terms of section 20(1) of the BDRA,
read with the definitions of “still-born” and “still-birth” in section 1 of the Act, a notice of stillbirth
may only be given in respect of a foetus that has had at least 26 weeks existence in the womb.
A burial order can therefore not be issued, and foetal remains cannot be lawfully buried if the
foetus did not survive for at least 26 weeks. In this case the remains are disposed of as
“medical waste”. In a recent decision of the Gauteng Division of the High Court, Pretoria in
Voice of the Unborn Baby NPC v Minister of Home Affairs (2021(4) SA 307 (GP)), the court held
that the 26-week requirement is unconstitutional as it infringed the right to dignity of the parents
of foetuses that are miscarried before 26 weeks. This declaration of constitutional invalidity was
referred to the Constitutional Court for confirmation.
Please note that the High Court’s order of constitutional invalidity was not confirmed by the
Constitutional Court. In The Voice of the Unborn Baby NPC v Minister of Home Affairs ([2022]
ZACC 20, 15 June 2022), the Constitutional Court held that section 20(1) of the BDRA only
requires a burial order for the burial of a corpse, which is either a dead human body or a
stillborn child. As a pre-viable foetus is neither a dead human body nor a still-born child, the
burial of a pre-viable foetus simply falls outside the two categories of corpses that the BDRA
regulates. The court therefore concluded that there is no prohibition in the BDRA on the burial
or cremation of a pre-viable foetus.
Because of the way the case was pleaded, there was no evidence before the court on how
hospitals would manage the burial or cremation of pre-viable foetuses. Therefore, the court
could not grant the declaratory relief sought, namely that there is a right to bury a pre-viable
foetus. Given the conclusion the court reached on the interpretation issue, namely that the
BDRA does not prohibit the burial of a pre-viable or terminated foetus, the court held that the
issue of constitutional validity did not arise.
Following this decision, the legal position is as follows: The BDRA does not prohibit the burial or
cremation of foetuses who did not survive to 26 weeks in the womb. As a pre-viable foetus is
not a corpse (ie either a dead human body or a stillborn child) for purposes of the BDRA, it is
not necessary that a burial order be issued before a foetus is buried or cremated.

3 MINIMUM AGE OF CRIMINAL ACCOUNTABILITY

Heaton indicates on page 113 of the sixth edition of the textbook (2021) that, in terms of the
Child Justice Act 75 of 2008, the minimum age of criminal accountability is 10 years. She also
indicates that when the Child Justice Amendment Act 28 of 2019 comes into operation, the
minimum age of criminal accountability will be raised to 12 years. Please take note that the
Child Justice Amendment Act 28 of 2019 came into operation on 19 August 2022. The minimum
age of criminal accountability has thus now been raised to 12 years, which means that a minor
below the age of 12 years cannot be held accountable for any crime he or she commits.
Furthermore, a child between the ages of 12 and 14 years of age is presumed to lack criminal
capacity, which means that the State will have to prove that he or she has criminal capacity.

4 ASSIGNMENT OF GUARDIANSHIP BY ORDER OF COURT

Currently, in terms of section 24 of the Children’s Act, any person having an interest in the care,
well-being and development of a child may apply to the High Court for an order granting
guardianship of the child to the applicant. The High court is thus the only court with jurisdiction
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to grant guardianship to a person. On 22 December 2022 the President assented to (approved)

Act 17 of 2022, the Children’s Amendment Act, 2022 (CAA), which includes an important
change regarding the acquisition of guardianship. The CAA has not yet come into operation, but
when it does, a children’s court will have concurrent jurisdiction over the guardianship of a child
and will thus also be able to assign guardianship of a child to an applicant. We shall let you
know when it does come into effect, either in a tutorial letter or by way of an announcement on
the module site.
We hope that you enjoy this module, and we wish you every success with your studies.

DR CS VAN DER WESTHUIZEN 012 429-8525

PROF JM KRUGER 012 429-8502
PROF S FERREIRA 012 429-8717
UNISA