Law of Persons, the Constitution, and Transformative Constitutionalism in South Africa: A First-Year Student's Guide

If you are starting your LLB degree, the Law of Persons can feel deceptively simple. After all, it is about people: when legal personality begins and ends, what limits your capacity to act, and where your legal "home" (domicile) is. Yet beneath these textbook headings lies one of the most politically charged areas of South African private law. The Constitution of the Republic of South Africa, 1996¹ does not merely sit above the Law of Persons; it has fundamentally re-engineered it through a project known as transformative constitutionalism. This guide explains what first-year students need to know, why it matters for exams, and how the courts have redrawn the boundaries of legal status, family, and dignity.

---

1. What Is the Law of Persons?

The Law of Persons is the branch of private law that determines who counts as a legal subject, what attributes govern their legal existence, and how their personal status affects their rights and duties.² Standard first-year syllabi cover four pillars:

1.1 Legal Personality

Legal personality begins at birth and ends at death.³ The common law recognises a nasciturus (an unborn child) only if it is born alive and viable, although the Children's Amendment Act⁴ and Children's Second Amendment Act⁵ have layered statutory protections over the common-law baseline. Registration of birth under the Births and Deaths Registration Act³ is the gateway to nationality, identity, and access to social rights.

1.2 Status and Capacity

Not every person can perform every juristic act. Status refers to a person's position in law; capacity refers to their power to create rights and duties. The most important status factor in South African law is minority: a person under 18 generally lacks full contractual capacity, though there are exceptions (assisted marriages, emancipation, and statutory provisions).² Other limiting factors include mental illness, prodigality, and insolvency.

1.3 Domicile

Domicile determines which legal system governs a person's status and capacity. South African law recognises domicile of origin, domicile of choice, and domicile of dependence (for minors).⁶ In exam answers, always state the domicile rule first, then apply it to the facts.

---

2. The Constitution as the Anchoring Framework

Before 1994, the Law of Persons was shaped by Roman-Dutch common law and apartheid-era statutes that entrenched racial hierarchy and gender inequality. The advent of the Constitution of the Republic of South Africa, 1996¹ changed everything. Several Bill of Rights provisions now serve as the lens through which status and capacity must be viewed:

In practical terms, this means no exam answer on status, capacity, or family law is complete without asking: Does this rule comply with the Bill of Rights?

---

3. What Is Transformative Constitutionalism?

Transformative constitutionalism is the idea that the South African Constitution is not only a legal text but a "manifesto for positive transformation towards an equal society."⁷ It goes beyond traditional liberal constitutionalism (which focuses on limiting state power) and demands that law actively dismantle apartheid's social and economic legacy.

The concept was crystallised by Karl Klare in his seminal 1998 article, Legal Culture and Transformative Constitutionalism, where he described the 1996 Constitution as "an enterprise of inducing large-scale social change through nonviolent political processes grounded in law."⁸ Justice Pius Langa later elaborated that the Constitution is "not merely a formal document regulating public power" but a tool for "transforming our society towards a more equitable and just social order."⁷

Theunis Roux, in his analytical study of the first decade of the Constitutional Court, demonstrated how the Court navigated principle and pragmatism in giving content to this transformative vision.⁹ For first-year students, the key takeaway is simple: whenever you encounter a common-law or customary-law rule in the Law of Persons, you must ask not only what the rule is, but whether it should still exist in light of the Constitution's transformative goals.

---

4. How Transformative Constitutionalism Reshapes the Law of Persons

South African courts have used the Bill of Rights to strip away discriminatory status rules and to recognise new forms of personal and family life. Below are the landmark areas that regularly appear in first-year assessments.

4.1 Equality, Dignity, and the End of Subordinate Status

The Constitutional Court's equality jurisprudence has fundamentally altered who counts as a full legal subject.

In Bhe and Others v The Magistrate, Khayelitsha and Others¹⁰, the Court struck down the customary-law rule of male primogeniture, which excluded women from intestate succession. The Court held that the rule violated the right to equality (s 9) and dignity (s 10) of women and extramarital children. The judgment was not merely a correction of a discriminatory rule; it was a transformative act that redefined status and capacity within customary law. Parliament later gave statutory effect to this transformation through the Reform of Customary Law of Succession and Regulation of Related Matters Act¹¹.

In National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others¹², the Court held that discrimination on the ground of sexual orientation is unconstitutional. This laid the foundation for recognising same-sex relationships as equally deserving of legal protection.

NM and Others v Smith and Others¹³ reaffirmed dignity (s 10) as a right that contradicts the apartheid-era denial of common humanity. The judgment is foundational for all status-related jurisprudence because it reminds courts that any rule diminishing a person's worth must be viewed with deep suspicion.

4.2 Family Life and Domestic Partnerships

Transformative constitutionalism has also expanded the definition of "family" beyond the nuclear, marriage-based model inherited from the common law.

In Du Toit and Another v Minister for Welfare and Population Development and Others¹⁴, the Constitutional Court held that same-sex life partners are entitled to jointly adopt a child. The Court stressed that family life reflects constitutional values of dignity, equality, and freedom, and that the Children's Amendment Act⁴ must be read to give effect to these values.

The Court went further in AB and Another v Minister of Social Development¹⁵, holding that there is "no one correct version of the family." The Constitution, the Court ruled, recognises and protects the diversity of family forms. This directly links family diversity to transformative constitutionalism: if the law insists on a single, traditional definition of family, it perpetuates the exclusion of those who were marginalised under apartheid and colonial law.

Richard Gordon Volks NO v Ethel Robinson¹⁶ examined whether a surviving domestic partner could claim maintenance from the deceased partner's estate. While the majority dismissed the claim on the facts, the minority judgment—highly influential in later cases—stressed the need to move from a rigid "definitional approach" to a "functional approach" in family law. This shift is at the heart of transformative adjudication: rather than asking "Is this a marriage?", courts now ask "Does this relationship function in a way that warrants legal protection?"

That functional approach bore fruit in Bwanya v Master of the High Court, Cape Town and Others¹⁷, where the Constitutional Court extended intestate succession protections to surviving permanent life partners who had not entered into a civil or customary marriage. The judgment signals the ongoing constitutional transformation of personal and family status, confirming that legal consequences can no longer be reserved exclusively for formally married couples.

The right to family life is not merely incidental to dignity; it is, as the Court held in Nandutu and Others v Minister of Home Affairs and Others¹⁸, "a core ingredient of it." This principle is vital in immigration, adoption, and domestic-partnership contexts.

4.3 Children's Rights

Section 28 of the Constitution has revolutionised the Law of Persons for minors. In C and Others v Department of Health and Social Development, Gauteng and Others¹⁹, the Court set out the s 28 framework: every child has the right to a name and nationality from birth, to family care or parental care, and to protection from abuse and neglect. The judgment connects directly to the Births and Deaths Registration Act³ and the Births and Deaths Registration Amendment Act, 2010²⁰, which together ensure that legal identity is not arbitrarily denied.

The Court reinforced this in AB and Another v Pridwin Preparatory School and Others²¹, holding that the best interests of the child (s 28(2)) are "paramount" and form the benchmark for all matters concerning children. For first-year students, this means that whenever a question involves a minor, the starting point of your analysis must be s 28(2).

4.4 Customary Law and Living Rights

Transformative constitutionalism does not demand the erasure of customary law; it demands that customary law develop to meet constitutional values. In Shilubana and Others v Nwamitwa²², the Constitutional Court held that customary law is a "living" system that must be allowed to evolve, provided that its development respects dignity, equality, and the rights of vulnerable members of the community. The Court stressed that community-led change is preferable to top-down imposition, but that courts retain the ultimate duty to ensure constitutional compliance.

This judgment is crucial for the Law of Persons because it governs status, succession, and leadership within traditional communities. When answering exam questions on customary marriage or succession, always reference Shilubana²² and explain how the rule in question aligns with the Constitution.

---

5. Key Statutes Every First-Year Must Know

Beyond the Constitution, several statutes form the statutory backbone of the Law of Persons. You should be able to state their purpose and link them to constitutional provisions:

• Births and Deaths Registration Act³ and Births and Deaths Registration Amendment Act, 2010²⁰: Establish legal identity and nationality from birth; connect to s 28 rights.
• Marriage Act 25 of 1961²³ – Governs civil marriages; increasingly read alongside constitutional equality and dignity values.
• Recognition of Customary Marriages Act, 1998²⁴ and Recognition of Customary Marriages Amendment Act, 2021²⁵ – Recognise customary marriages for all purposes, including proprietary consequences and guardianship.
• Children's Amendment Act⁴ and Children's Second Amendment Act⁵: Define parental responsibilities, child abandonment, and commissioning parenthood; operationalise s 28.
• Reform of Customary Law of Succession and Regulation of Related Matters Act¹¹: Gives statutory effect to Bhe¹⁰ by removing male primogeniture and extending intestate succession to more family members.

---

6. Study Tips and Exam Approach

6.1 Structure Your Answers

Examiners reward structure. A good Law of Persons answer follows this pattern:

1. Identify the issue: Is this about the beginning/end of personality, status, capacity, or domicile?
2. State the common-law or statutory rule accurately.
3. Apply the Constitution: Does the rule engage s 9, 10, 28, 30, or 31? Is the limitation justifiable under s 36?
4. Refer to precedent: Cite at least one relevant Constitutional Court case.
5. Conclude: State the likely outcome and, where appropriate, note any gaps or reforms.

6.2 Remember the Transformative Question

Transformative constitutionalism is not a vague slogan. It is a method. When you analyse a status rule, ask:

• Who was excluded by the old rule?
• Does the new rule (or the Constitution) correct that exclusion?
• Is the court moving from a formalistic approach to a functional one?

These questions will elevate a descriptive answer into an analytical one.

6.3 Know Your Cases

You do not need to memorise every paragraph. You need the ratio, the constitutional provision engaged, and the transformative outcome. For example:

• Bhe: male primogeniture unconstitutional; equality and dignity transform customary succession.
• Bwanya: unmarried life partners can inherit; functional approach to family.
• Shilubana: customary law must develop; courts facilitate but do not impose.

6.4 Do Not Neglect Domicile

Domicile is a favourite exam topic because it is technical and precise. Revise the three types of domicile, the requirements for acquiring a domicile of choice (presence plus intention to remain indefinitely), and the special rules for minors and mentally incapacitated persons.⁶

---

7. Conclusion

The Law of Persons is no longer a dry cataloguing of birth, death, and minority. In post-apartheid South Africa, it is a dynamic field in which the Constitution and transformative constitutionalism constantly reshape who counts in law, what families look like, and whose dignity the legal system protects. For first-year students, mastering this intersection is not only academically essential; it is the foundation of understanding South African private law as a tool for social change.

When you sit your exam, remember: state the rule, engage the Constitution, cite the case, and ask the transformative question. That is the difference between a pass and a distinction.

---

Endnotes

Footnotes

1. Constitution of the Republic of South Africa, 1996. ↩ ↩²

2. University of the Western Cape, "Law of Persons" LibGuide <. ↩ ↩²

3. Births and Deaths Registration Act. ↩ ↩² ↩³ ↩⁴

4. Children's Amendment Act. ↩ ↩² ↩³

5. Children's Second Amendment Act. ↩ ↩²

6. UNISA, PVL1501 Study Guide: Unit 6 (Domicile) <. ↩ ↩²

7. P Langa "Transformative Constitutionalism" (2006) 17 Stellenbosch Law Review 351, 354. Available at https://files.su.ac.za/public/documents/2025-09/transformative-constitutionalism.pdf. ↩ ↩²

8. K Klare "Legal Culture and Transformative Constitutionalism" (1998) 14 South African Journal on Human Rights 146, 150. See also Semantic Scholar summary https://www.semanticscholar.org/paper/Legal-Culture-and-Transformative-Constitutionalism-Klare/9aa080d59bff5564c1242c800920126f3ad595a6. ↩

9. T Roux The Politics of Principle: The First South African Constitutional Court, 1995–2005 (Cambridge University Press, 2013). See <. ↩

10. Bhe and Others v The Magistrate, Khayelitsha and Others 2005 (1) BCLR 1 (CC). ↩ ↩²

11. Reform of Customary Law of Succession and Regulation of Related Matters Act. ↩ ↩²

12. National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others CCT 10/99. ↩

13. NM and Others v Smith and Others (CCT 69/05) [2007] ZACC 6. ↩

14. Du Toit and Another v Minister for Welfare and Population Development and Others CCT 40/01 (2002). ↩

15. AB and Another v Minister of Social Development [2016] ZACC 43. ↩

16. Richard Gordon Volks NO v Ethel Robinson CCT 12/04 (2005). ↩

17. Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51. ↩

18. Nandutu and Others v Minister of Home Affairs and Others [2019] ZACC 24. ↩

19. C and Others v Department of Health and Social Development, Gauteng and Others (CCT 55/11) [2012] ZACC 1. ↩

20. Births and Deaths Registration Amendment Act, 2010. ↩ ↩²

21. AB and Another v Pridwin Preparatory School and Others [2020] ZACC 12. ↩

22. Shilubana and Others v Nwamitwa (CCT 03/07) [2008] ZACC 9. ↩ ↩²

23. Marriage Act 25 of 1961. ↩

24. Recognition of Customary Marriages Act, 1998. ↩

25. Recognition of Customary Marriages Amendment Act, 2021. ↩