Re-Assessment 2013

SUPPLEMENTARY/AEGROTAT EXAMINATIONS – 2013

FACULTY OF COMMERCE, ADMINISTRATION AND LAW

DEPARTMENT OF LAW

LPLP101 – LAW OF PERSONS

DURATION: 3 HOURS                                                      MARKS:   100

Internal Examiner(s)                                                         

Mrs. L Ramaccio Calvino

Moderator

Dr. D Iyer

INSTRUCTION TO CANDIDATES

1. Please ascertain that this paper have 4 pages inclusive of the cover page.
2. You may start with any question, provided the question is numbered correctly and clearly.
3. Answer each question on a new page.
4. Neat writing will be to your advantage.
5. When answering problem scenarios questions, please ensure that your legal opinion includes an introduction and conclusion. In addition each new thought should be expressed in a new paragraph.
6. Reference to authority (legislation and/or case law) is important in substantiating your answers.

Question 1:

Maradeth and Derek are life partners. They decided to make use of a surrogacy

agency, Baby Inc. to find a suitable surrogate mother. Mrs. Lexi Grey, a director of Baby

Inc. guaranteed that their surrogate mothers are all medically fit to give birth to healthy

babies.

Derek’s sperm and Maradeth’s ova were harvested and artificially fertilised. Dr.

Montgomery attended to implant the fertilise eggs into Arizona, the surrogate mother.

One month later Maradeth and Derek received confirmation that they were going to

have twins.

During the second trimester of the pregnancy, Arizona was involved in a vehicle

accident. Shortly after the accident Dr. Montgomery performed an ultra sound on

Arizona and noticed that one of the twins was developing a breathing problem. Dr.

Montgomery informed Maradeth and Derek that due to the injury sustained during the

accident, one of the twins will not be able to live a normal life. Dr. Montgomery

suggested that blood tests be performed to confirm his prognosis. Arizona however

refused to give her consent to draw blood from her or the unborn babies and threatened

to terminate the pregnancy if Maradeth and Derek were going to insist on blood tests. 

During the third trimester of the pregnancy Arizona had to undergo an emergency

operation after the twin with the lung injury, showed signs of distress. During the

emergency delivery it was discovered that the babies were conjoined twins as their two

bodies fused at the pelvic bone, resulting in them sharing a pelvis. At birth the twin with

the lung injury stopped breathing for 2 minutes. Luckily, Dr. Montgomery managed to

resuscitate (revive) him by using a respirator. The twins were immediately separated

after delivery.

Dr. Montgomery indicated that Baby Inc. should have scanned Arizona for addiction

problems, as he discovered that Arizona was using non prescribed drugs during the

pregnancy that probably contributed towards the twins being born as conjoined

twins. After being accused of the aforementioned, Arizona decided that she wanted to

cancel the surrogacy agreement. 

Derek, a manic depressant, disappeared shortly after the birth of the twins.    

Answer the following questions based on the aforementioned set of facts.

1.1       If Derek’s best friend, Mark, was setting up a business and wanted to give co-ownership of the business to Derek’s children, could Derek accept co-ownership of the business on behalf of their unborn children?                                         (10)

1.2       If Derek committed murder whilst domiciled in RSA and he then flees to Nigeria and does not intend to return RSA, is he domiciled in RSA or Nigeria? Substantiate your answer.                                                                                           (10)

                                                                                                                       

1.3.      Based on the aforementioned set of fats, what is the presumption regarding paternity and how can such presumption be rebutted?                                            (10)

1.4.1   If Arizona was a single woman that had a child as a result of artificial fertilisation, would the child be born from married or unmarried parents? Substantiate your answer with reference to case law.                                                                         (10)                                                                

1.4.2   Would the answer to question 1.4.1 differ if Arizona co-habitated with Susan, another woman?                                                                                                            (5)

1.4.3   Would your answer to question 1.4.1 differ if Arizona was married to Susan?

                                                                                                                                                (5)

1.5       Discuss the provisions of the Children’s Act 38 of 2005 that deal with parental responsibilities and rights of unmarried fathers.                                       (10)

1.6       Critically discuss whether the protection of the interest of the Nasciturus implies that an unborn child is sometimes a legal subject with reference to case law. 

                                                                                                                                                (10)

Question 2:

Jill is a minor. She enters into a marriage with John, without obtain the necessary

consent. Jill furthermore signed an antenuptial contract in terms whereof the

matrimonial property regime excluded the accrual system. Discuss whether the

aforesaid marriage is a valid, voidable or void marriage and the matrimonial property

consequences of such marriage with reference to case law and legislation.                      (10)

Question 3:

Ben is 17 years old. He concludes a contract with Mrs Shabangu, an adult, to buy a

second-hand computer for R3 500. Ben brings Mrs Shabangu under the false

impression that he is 18 years old by producing a forged identity document. Ben pays a

deposit of R350 and Mrs Shabangu delivers the computer to him. Ben now refuses to

pay the remainder of the contract price on the ground that he is a minor and therefore

not liable in terms of the contract.

3.1       A minor who makes a misrepresentation (like Ben did in this question) commits a

delict and can therefore be held delictual liable. This means that the prejudiced

party has a claim for damages against the person committing the delict (the

minor). What are the requirements for delictual liability in these circumstances?  

(5)

3.2       Can Ben recover his deposit? Briefly explain your answer with reference to

authority.                                                                                                                   (5)

Question 4:

Briefly explain how the following diverse factor/s may affect a person’s legal

capacity:

4.1       A person that is a declared prodigal enters into a hire-purchase contract?

                                                                                                                                                (5)

4.2       A person kills another person whilst driving a vehicle under the influence of alcohol.                                                                                                                 (5)

THE END

June 2013 Examination Paper

EXAMINATION – 7 JUNE 2013

FACULTY OF COMMERCE, ADMINISTRATION AND LAW

DEPARTMENT OF LAW

LPLP101- LAW OF PERSONS 

DURATION: 3 HOURS                                                                  MARKS:   100

                                                                                                            SUBMINIMUM: 40%

Internal Examiner(s)                                                         

Mrs. L Ramaccio Calvino

Moderator

Dr. D Iyer

INSTRUCTION TO CANDIDATES

1. Please ascertain that this paper has _____ pages inclusive of the cover page.
2. You may start with any question, provided the question is numbered correctly and clearly.
3. Answer each question on a new page.
4. Neat writing will be to your advantage.
5. When answering problem scenarios questions, please ensure that your legal opinion includes an introduction and conclusion. In addition each new thought should be expressed in a new paragraph.
6. Reference to authority (legislation and/or case law) is important in substantiating your answers.

Question 1:

Maradeth and Derek are life partners. They decided to make use of a surrogacy agency, Baby Inc. to find a suitable surrogate mother. Mrs. Lexi Grey, a director of Baby Inc. guaranteed that their surrogate mothers are all medically fit to give birth to healthy babies.  

Derek’s sperm and Maradeth’s ova were harvested and artificially fertilised. Dr. Montgomery attended to implant the fertilise eggs into Arizona, the surrogate mother. One month later Maradeth and Derek received confirmation that they were going to have twins.

During the second trimester of the pregnancy, Arizona was involved in a vehicle accident. Shortly after the accident Dr. Montgomery performed an ultra sound on Arizona and noticed that one of the twins was developing a breathing problem. Dr Montgomery informed Maradeth and Derek that due to the injury sustained during the accident, one of the twins will not be able to live a normal life. Dr. Montgomery suggested that blood test be performed to confirm his prognosis. Arizona however refused to give her consent to draw blood from her or the unborn babies and threatened to terminate the pregnancy if Maradeth and Derek is going to insist on blood tests.  

During the third trimester of the pregnancy Arizona had to undergo an emergency operation after the twin with the lung injury, showed signs of distress. During the emergency delivery it was discovered that the babies were conjoined twins as their two bodies fused at the pelvic bone, resulting in them sharing a pelvis. At birth the twin with the lung injury stopped breathing for 2 minutes. Luckily Dr. Montgomery managed to resuscitate (revive) him by attaching a respirator to the baby. The twins were immediately separated after delivery.

Dr. Montgomery indicated that Baby Inc. should have scanned Arizona for addiction problems, as he discovered that Arizona was using non prescribed drugs during the pregnancy that probably contributed towards the twins being born as conjoined twins. After being accused of the aforementioned, Arizona decided that she wanted to cancel the surrogacy agreement. 

Derek, a manic depressant, was so distraught that he volunteered to be a fisherman on a fishing boat, never to be heard of again.   

Answer the following questions based on the aforementioned set of facts.

1.1       Considering that one of the twins is not ‘viable’, as well as considering the requirements for the beginning and end of legal personality and the provisions of the Birth and Death Registration Act 51 of 1992, advise Maradeth and Derek on whether they are obliged to register the babies, and if not, what is expected of them?                                               (10)

                                                           

           

1.2       Considering section 12(2) of the Constitution of South Africa 1996 providing for “everyone’s right to bodily and psychological integrity” as well as section 40 of the Children’s Act 38 of 2005, does Maradeth have the right to request that Arizona or the babies be submitted for blood tests. In addition what would be the requirements should Arizona have terminated the pregnancy in the second trimester of her pregnancy? Reference must be made to legislation and case law in substantiating your answer.                                                                                                                                (20)

1.3       As Derek was not married to Maradeth and the children were born by means of surrogacy, what is the presumption regarding paternity in these circumstances. In addition discuss whether Derek would have any parental rights and responsibilities in respect of the born children. Reference must be made to legislation and case law in substantiating your answer.                                                                                                (20)

1.4       Considering that Mrs. Lexi Grey guaranteed that Arizona is medically fit to give birth to a healthy child, as well as considering the fact that Arizona was involved in a vehicle accident causing the one twin to be born with a breathing problem,  would Maradeth be able to institute a civil action/s, and if so, against whom? Reference must be made to legislation and case law in substantiating your answer.                                                                                                                                                 (20)

1.5       Propose Maradeth married Steven 5 years after Derek’s disappearance and she wants Steven to adopt the minor children, how would she go about in having Derek declared presumably dead?                                                                                                               (10)

Question 2:

Discuss fully the question of the liability of a minor who fraudulently misrepresents himself to an adult, or claims to be emancipated or to be acting with the necessary assistance –following which the party contracts with him on these grounds. If there is liability, on what grounds is the minor liable?                                                                                                                                   (10)

  

Question 3:

Briefly explain how the following diverse factor/s may affect a person’s status:

8.1       A juristic act performed by a certified mentally ill person during a lucidum intervallum?                                                                                                                                               (5)

8.2       An intoxicated blind person shooting at a noise outside his out house, killing his neighbour.                                                                                                                           (5)

  

THE END

Revision Questions

Please note that these questions and answers are purely to assist you in understanding the way in which to answer problem questions. Similar questions MAY be asked in the assessment, as MAY other questions relating to other aspects of Chapters 5 & 6.

Chapter 5

Question 1:

Ben and Karin, both unmarried, were involved in a relationship as a result of which Karin fell pregnant. She gave birth to a girl three years ago. Ben requested Karin to submit herself and her daughter for blood tests in order to attain certainty whether he could be the father of the child. With reference to case law, discuss the question as to whether the court can compel Karin to submit herself and her daughter for blood tests.         

Answer 1:

·         In cases where people voluntarily submit to blood tests the courts accept blood tests as prima facie proof that a man cannot be a child's father.

·         However, there is no certain answer to the question of whether the court may compel a person to undergo blood tests despite that person's refusal.

·         The following cases deal with the question of whether the court can compel children to undergo blood tests despite the parent's refusal:

-          In 0 v 0 1992 (4) SA 137 (C), Seetal v Pravitha 1983 (3) SA 827 (D) and M v R 1989 (1) SA 416 (0). The courts decided that they could order a child to be submitted for blood tests despite the parent's refusal, if the tests are in the best interests of the child.

-          However, in S v L 1992 (3) SA 71 3 (E) the court decided that it did not have the power to interfere with the decision of the mother that the child should not undergo blood tests, even if the court would have come to a different decision. The court held that ordering someone to submit to a blood test is not merely a procedural order.

·    The following cases deal with the question whether the court can compel adults to undergo blood tests in spite of the parent's refusal:

-          In M v R the court decided that it did have the power to compel an adult to undergo blood tests in order to establish paternity, since the High Court has the inherent power to regulate its own procedures.

-          In S v L and Nell vNell1990 (3) SA 889 (T), the courts decided that they did not have the power to compel an adult to undergo blood tests, because such an order was not merely a procedural order. In O v O above, the court stated that there was no statutory or common-law power enabling the court to order an adult to undergo blood tests for the purpose of establishing paternity.

·         Section 2 of the Children's Status Act 82 of 1987 creates a presumption that, if a party in a paternity dispute has been requested by the other party to submit himself or herself, or the child over whom he or she has parental authority, to blood tests, and he or she refuses to do so, that party wishes to conceal the truth concerning the child's paternity. Heaton (57-58) indicate that it may be argued that an order compelling a person to undergo blood tests infringes his or her right to privacy and bodily and psychological integrity (which includes the right to security in and control over the body, as well as the right not to be subjected to medical or scientific experiments without informed consent - Constitution of the Republic of South Africa 108 of 1996 - ss 12 & 14). They add that the infringement of the rights of privacy and bodily integrity would be justifiable if it were in the best interests of the child to determine paternity by ordering a person to undergo a blood test.        

Question 2:

John has been married to Jill since April 2006. John worked in Dubai for a few months from April 2009 to February 2010. During this time, Jill had an affair with Jack. She found out last week that she is 12 weeks pregnant. John knows that he cannot be the father, but Jill has told him that because they are married, the law presumes that he is the father of the unborn child, and that there is nothing he can do about it. John now approaches you for advice. Answer the following questions:

2.1       What is the principle in terms of which it is presumed that John is the father of the child? Briefly advise John whether there is any way in which he can prove that he is not the father of the child.                                                                                                                                                            

2.2       Suppose that Jill decided to divorce John when she found out about the pregnancy and then immediately married Jack (before the birth of her child). Who would the child’s presumed father be in terms of the presumption of paternity?                             

Answer 2:

2.1       If a child is born to a married woman or a woman who is a party to a civil union, it is presumed that the child is born of the spouses or civil union partners. This presumption is expressed in the maxim pater est quem nuptiae demonstrant (the marriage indicates who the father is). John can rebut the presumption of paternity in the following ways:

He can prove that he did not have sex with Jill at the time when the child could have been conceived; the gestation period may be considered, he can prove that he is sterile; through blood tests. (Heaton 58-64)          

2.2    The pater est quem nuptiae demonstrant presumption applies to children conceived before a marriage or civil union but born during its existence, as well as children conceived during the marriage or civil union but born after its dissolution.Thus if a woman remarries or enters into a civil union shortly after the dissolution of hr previous marriage or civil union and the  presumption is consistently applied, both men could be considered the father of the child born during the early stages of the new marriage or civil union. In such a case it is rebuttably presumed that the new husband or civil union partner is the child’s father. It is thus presumed that Jack is the father, unless it is proved that John is the father. (Heaton 56)                                                           

Question 3:

If an unmarried single woman has a child as a result of artificial fertilization, is the child

legitimate or extra-marital? Substantiate your answer with reference to case law.                        

Answer 3:

Legitimate- J v Director General case. A lesbian couple who were living together in a

same-sex partnership had twins as a result of AI. The couple wanted the twins to be

registered as their legitimate children. Challenged section 5 of the children’s status act,

act 82 of 1987. Sec 5 (1)(a) stated that a child born to spouses who consented to the

use of another person’s gamete  for purposes of AI the wife, is deemed to be the

couple’s legitimate child. Dbn high court- declared the section unconstitutional. Because

a statutory provision was declared unconstitutional the declaration of unconstitutionality

had to be considered by the constitutional court. Constitutional court found section

discriminates unfairly against same sex life partners on the ground of their sexual

orientation. Today ito Civil Union Act, same-sex couple can be married. 

Question 4:

Derek and Maradeth are married. Maradeth has an affair with Stevens. Nine months

later a child is born, Grey Junior. 

4.1       Who will be responsible to maintain Grey Junior, Derek or Stevens?                                   

Answer 4.1

If a women is legally married at the time of conception or birth of the child, it is

presumed that the mother’s husband is in fact the child’s father. The presumption is

expressed as the maxim pate rest quem nuptiae demonstrant. The marriage indicates

who the father  is.  In this regard Derek will be liable to maintain Grey Jnr. The

presumption is however rebuttable. 

4.2       Will your answer to 7.1 be different if Maradeth was unmarried and had sexual relations with Derek and Stevens respectively? Motivate your answer by referring to the concept exception plurium concubentium?                                                                                                     

Answer 4.2

Where she was unmarried- position used to be that the mother named a particulars man

as the child’s father and he admitted/proofed that he had sexual relations with her at

any time he was presumed to be the father. Sec 1 of Children’s status act, act 82 of

1987 a man is now presumed to be the father of an extra-marital child if it is now

proofed by judicial admission or otherwise. Depending on the judicial evidence Derek or

Stevens may be declared the biological father-hence liable to support. If a man admits

to having sexual intercourse with a women when child could have been conceived but

alleges that and proves that the women had relations with another man during the

period–the reputable resumption can be rebutted.                                                                                         

4.3    If Maradeth was married to another female, Arizona, and the child was conceived by means of artificial insemination, would the child be acknowledged as Arizona’s child? Reference must be made to case law in answering the question.                                                               

Answer 4.3;

Yes- in J v Director General, dept. of home affairs a lesbian couple who were living

together in a same-sex partnership had twins as a result of AI. The couple wanted the

twins to be registered as their legitimate children. Challenged section 5 of the children’s

status act, act 82 of 1987. Sec 5 (1)(a) stated that a child born to spouses who

consented to the use of another person’s gamete  for purposes of AI the wife, is

deemed to be the couple’s legitimate child. Dbn high court- declared the section

unconstitutional. Because a statutory provision was declared unconstitutional the

declaration of unconstitutionality had to be considered by the constitutional court.

Constitutional court found section discriminates unfairly against same sex life partners

on the ground of their sexual orientation. Today ito Civil Union Act, same-sex couple

can be married. 

CHAPTER 6:

                                                                                               

Question 5:

Thembi is seventeen years old. She decides to buy a second-hand car. She visits Mrs. Bester, a dealer in second-hand cars. Without the assistance or consent of her guardian, Thembi concludes a contract of sale with Mrs.Bester. In terms of the contract, Mrs. Bester sells Thembi a car at the discount price of R25 000. The actual value of the car at the time of the conclusion of the contract is R30 000. During the negotiations Thembi tries to represent herself as a major, but it is obvious to Mrs. Bester that she is

dealing with a minor. On 20 April, two weeks after the car is delivered to Thembi, she sells it for R20 000. She spends R15 000 of this money on a luxury lounge suite, and the remaining R5 000 she uses to pay for her lodging. She does not pay any of her debt to Mrs. Bester. On 3 May, Mrs. Bester institutes an action against Thembi.

(i) On what basis could Thembi be held liable to Mrs. Bester? Explain briefly. (2)

(ii) What do you understand by the concept "undue enrichment"? (2)

(iii) What do you understand by the so-called "benefit theory"? Which decision introduced this theory into our law? (2)

(iv) Does the benefit theory still form part of our law? Explain briefly with reference to authority. (3)

(v) At which moment should the extent of the minor's enrichment be calculated? What is that date in the question under discussion? (2)

(vi) One of the principles that are applied when calculating the extent of the minor's enrichment, is that the minor is liable for the lesser of two specific amounts. What are these two amounts? (2)

(vii) In which way should the minor's enrichment be calculated if the minor has sold the performance before litis contestatio, and has used the proceeds to purchase luxury and necessary items respectively? Apply these principles to the question under discussion.

(viii) Write down the amount of Thembi's enrichment.

Answers 5:

(i) The basis of liability is undue enrichment. Thembi cannot be held delictual liable on the basis of the misrepresentation, since it was obvious to Mrs. Bester that she was dealing with a minor (one of the requirements for delictual liability are thus not present).

(ii) Undue enrichment takes place if a person gains a patrimonial benefit at the cost of another, without there being a recognized legal ground justifying the transfer of the benefit.

(iii) The benefit theory entails that once the contract, taken in its entirety, is to the minor's benefit, the minor is contractually liable. The benefit theory was introduced into our law in the case of Nel divine Hall & Co.  

(iv) No, the benefit theory no longer forms part of our law. It was authoritatively rejected by the Appellate Division in Edelstein v Edelstein, where the court decided that the contract of a minor who acted without assistance can never be valid merely because it is to his or her benefit. However, the minor is indeed liable for the extent to which he or she has been unduly enriched.

(v) The moment on which the calculation must be made is litis contestatio. In the

question under discussion litis contestatio took place on 3 May. (2)

(vi) The relevant two amounts are the amount by which the other party's estate is decreased as a result of the performance and the amount by which the minor's estate is increased as a result of 'the performance. Both these amounts are based on the actual value of the performance, not the contract price. (2)

(vii) If the minor has sold the performance before litis contestatio, and purchased necessary items with the proceeds, he or she is liable for the purchase price of these items. If the minor has purchased luxury items with the proceeds, he or she is liable for the value of whatever still remains. In the question Thembi will thus be liable for the R15 000 spent on the lounge suite (luxury item that is still intact), as well as for the R5 000 spent on her lodging (necessary item). (3)

(viii) The amount of Thembi's enrichment is R20 000. (1)

Question 6:

Discuss fully the question of the liability of a minor who fraudulently misrepresents himself to an adult, or claims to be emancipated or to be acting with the necessary assistance –following which the party contracts with him on these grounds. If there is liability, on what grounds is the minor liable?                                                               (10)

Answer 6:

Contractual or delictual liability? Cannot be contractual as not have ability to act. Therefore delictual liability.

Requirements :

The minor will be liable only if he or she made a fraudulent misrepresentation regarding his or her majority/capacity to contract(1), if the other party to the contract was indeed induced to contract by the misrepresentation(1) and if the other party suffered damage as a result of the misrepresentation(1).

Yes.(1) In Louw v MJ & H Trust 1975 (4) SA 268 (T)(½) the court did not allow the minor to recover his deposit by means of the restitutio in integrum(½). However, as indicated by Heaton, the court should have permitted the minor to recover his deposit by means of the condictio(1), as the minor was not bound by the contract(1).

Liability is therefore delictual.                                                                                             [10]