Louis Case Reports

PERMANENT LIFE PARTNERS – ARTIFICIAL FERTILISATION
X v Minister of Social Development [2022] 27706-2021 (GP)

The applicants have been involved in a lesbian same-sex permanent life partnership and are regarded as a permanent couple by their families, friends and their community. Applicants wish have children by artificial fertilisation but s 40 of the Children’s Act 38 of 2005, which deals with children so conceived, does not cater for permanent life partner along with spouse and husband. The applicants seek that the section be declared inconsistent with the Constitution to that extent.

Van Veenendaal AJ discusses the definition of “parent” in s 1 of the Act and the donation of gametes; the contention by the first applicant that her status of parent not being recognised legally is unfair to her and that her position will not be legally secure; the best interests of the child; and that the section is no longer worded to cater for the reality of unmarried couples who want to undergo artificial fertilisation.

Section 40 is declared inconsistent with the Constitution to the extent that it does not include “permanent life partner” after the words “spouse” and “husband” and the words are to be read into the section until the Act is amended.

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SERVICE ON POST BOX AND PRESCRIPTION
Mathome Training v Finsch Diamond Mine Training Center [2022] ZANCHC 8

Mathome entered into a Service Level Agreement (SLA) with Finsch Diamond Mine Training Centre in terms of which it would provide mining training services to TNC Mining. Mathome claims against Finsch and TNC for services rendered alternatively damages from breach of contract. TNC raised a special plea of prescription.

A few days prior to the three-years’ prescription running out, the sheriff served the summons on TNC by affixing it to the outer postbox of the nominated address chosen by Finsch and in terms of the SLA. But the summons was only handed to TNC after the date the claim would have prescribed.

Williams J discusses whether the summons has been served timeously on TNC in order to interrupt prescription; Rule 4(1)(a)(iv) of the Uniform Rules regarding service at the nominated address; s 15(1) of the Prescription Act 68 of 1969 on judicial interruption of prescription; that the sheriff affixed a copy of the summons to the postbox and went further by sending the summons by registered mail to the chosen address. The court finds that legal service took place when the summons reached the P.O. Box when the sheriff attended on the Post Office to affix the summons to the box, or shortly thereafter.
The special plea of prescription is dismissed.

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SURETY AND LIABILITY FOR COSTS
V&A Waterfront Holdings v Caffe San Marco [2022] 20333-2021 (WCC)

The V&A Waterfront signed a lease agreement with Caffe San Marco and Mr Yilmax signed as surety. The terms provided that the Caffe was to procure the transfer of the liquor licence for the leased premises to the replacement tenant and provide a copy to the V&A. Despite various requests, the Caffe failed to deliver the licence and the V&A sought specific performance by way of an urgent application, which resulted in an order. The lease had expired and the Caffe had vacated the premises by that time. The Caffe was to be held liable for the costs, but Mr Yilmax disputed his liability to pay costs.

Van Zyl AJ discusses whether the wording of the suretyship was wide enough to cover the legal costs incurred by the Caffe towards V&A; the phrase “all sums of money” in the context of being indebted to the landlord and arising from the lease; and whether Mr Yilmax was erroneously joined to the proceedings and that this absolves him from his obligation under the suretyship.

The court finds the terms broad enough to cover costs and notes that Mr Yilmax’s liability for the costs arose from the suretyship itself and that he had been joined in the application.

The respondents are ordered to pay costs of the application on the scale between attorney and client (as stipulated in the lease agreement).

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ABOUT THE EDITOR

Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes.​ During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law

You can read his full CV and more about Louis on his LinkedIn profile where he shares interesting and recent cases.

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