Faculty of Law
Department of Private Law
Selected Highlights from Research Findings
A casino patron was shot at a casino by annother patron, unrelated to the operator. In an action against the casino operator for failing to protect him adequately, the victim won an award in the trial court, but the Supreme Court of Appeal overturned this judgment, holding that the plaintiff had failed to establish wrongfulness on the defendant's part. This judgment (reported as Tsogo Sun Holdings (Pty) Ltd v Quing-He Son 2006 6 SA 537 (SCA)) is perplexing in that the court made a further (superfluous, if not meaningless) finding that both negligence and legal causation were lacking. Apart from this, the judgment will in future be extremely useful for the law of delict in the intricate process of establishing wrongfulness in the case of an omission.
Contact person: Prof TJ Scott.
After the much publicised American case of Baby M in 1988, many countries enacted legislation to address the complex legal questions arising from surrogate motherhood agreements. South Africa has now followed suit by incorporating a chapter in the new Children’s Act 38 of 2005 to regulate surrogate motherhood agreements. The contribution of AS Louw in the Commentary of the Children’s Act explains the impact of these new provisions in terms of which commissioning parents will henceforth be able to acquire parental responsibilities and rights automatically and immediately after the birth of the commissioned child. Surrogacy will thus become a viable option for infertile couples wishing to produce offspring genetically related to at least one of them. The provisions address the current unsatisfactory position which obliges commissioning parents to adopt their commissioned child from the surrogate mother. As far as the constitutionality of the provisions are concerned, it may be argued that while the legal recognition of surrogate motherhood agreements probably gives effect to the constitutional right enshrined in section 12(2)(a) of the Constitution, some of the limitations placed thereon, for example, obliging the surrogate mother to hand over the child at birth, may be considered a violation of inter alia, the surrogate mother’s right to privacy (s 13) and the child’s right to dignity (s 10).
Contact person: Ms AS Louw.
Ms Louw investigated the possibility of same-sex partners or spouses acquiring shared parental responsibility after formalisation of their relationship in terms of the Civil Union Act 17 of 2006, which came into operation on 30 November 2006. Because of their inability to produce offspring naturally through sexual intercourse, same-sex partners will have to resort to adoption and artificial fertilisation to enable them to become parents in the legal sense of the word. Section 40 of the new Children’s Act 38 of 2005, which essentially encapsulates the provisions of the repealed Children’s Status Act 82 of 1987, makes it possible for a lesbian couple, but not an all male civil union, to acquire shared parental responsibility in respect of a child conceived by artificial fertilisation. Ms Louw also briefly investigated the acquisition of parental responsibility by a same-sex partner in respect of a child or children conceived and born from a previous marriage or relationship of the other partner. The relevancy of the research is highlighted by a report of the first “legitimate” child born to a lesbian couple that appeared in Rapport of 26 October 2007.
Contact person: Ms AS Louw.
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