Wednesday 29 February 2012

Example of 1st Assessment 2011


UNIVERSITY OF ZULULAND
FACULTY OF COMMERCE, ADMINISTRATION AND LAW
LAW OF PERSONS – LPLP101

1st ASSESSMENT 2011

ASSESSOR:  MRS L RAMACCIO CALVINO
INTERNAL MODERATOR: MR D IYER

DURATION: 1 HOUR                                                                                                                                                 MARKS 50


INSTRUCTIONS:
1.                    ENSURE THAT YOUR NAME AND STUDENT NUMBER ARE CLEARLY REFLECTED ON THE ANSWER BOOK.
2.                    QUESTIONS MAY BE ANSWERED IN ANY ORDER. CLEARLY INDICATE EACH QUESTION ANSWERED AND LEAVE AT LEAST TWO LINES OPEN BETWEEN ANSWERING THE QUESTIONS.
3.                    IN ANSWERING THE QUESTIONS PARAGRAPHS SHOULD BE USED (EACH NEW IDEA SHOULD BE ADDRESSED IN A NEW PARAGRAPH).

Question 1:

Derek and Sloan are joint partners of DIESEL STANDS. During the 2011 inter varsity between the University of Zululand and The University of KwaZulu Natal one of their spectator stands collapses resulting in Bailey sustaining injuries resulting in medical expenses to the extend of R100 000-00. In lieu of the definition of law of persons as well as the classes of legal subjects recognised in South African law, against whom should Bailey institute a civil claim? Substantiate your answer. (5)

Question 2:

Arizona and her life partner, Maradeth are expecting their first child. During the delivery of Arizona Junior the fetus experience an oxygen deficiency and dies shortly after birth. 
2.1           Briefly mention the legal requirements for the beginning and end of legal personality in South African law with reference to relevant case law.                                                                                                                                                            (5)
2.2           Briefly discuss the provisions of the Births and Deaths Registration Act, Act 51 of 1992 that will be relevant in lieu of the aforesaid set of facts.                                                                                                                                                         (5)

Question 3:
Although the nasciturus fiction had limited use in the common law, its application in South African law has been extended protecting any conceivable interest.
3.1           Briefly discuss with reference to case law the patrimonial and pre-natal interests in which the nasciturus fiction has been applied in our law.                                                                                                                                                           (4)
3.2           Does the protection of the interest of the nasciturus imply that an unborn child is sometimes a legal subject? Substantiate your answer.                                                                                                                                                                           (6)

Question 4:
Mc Steamy, an experienced pilot, has been missing for 10 years since he left Durban airport on route to Botswana. Mrs Mc Steamy wishes to sell property jointly owned by her and Mr Mc Steamy. 
4.1           Briefly differentiate between the common law and statutory process of having a person declared presumably dead.                                                                                                                                                                              (5)
4.2           Mention which process (common law application or statutory law process) will be applicable in lieu of the aforesaid set of facts.                                                                                                                                                                               (5)
4.3           Should the order be granted in terms of paragraph 4.2 herein above, can Mrs Mc Steamy get remarry? Substantiate your answer.                                                                                                                                                                         (5)

Question 5:
Stevens is a UK citizen and is domiciled in London. He visits South Africa where he meets Issie, a
German holidaymaker. They decide to get married at Phinda Game Reserve, South Africa.

5.1           Which legal system will be applicable to the solemnization of their marriage and what will determine the said system. Briefly mention the requirements that Stevens will have to comply with should he wish to change his domicile to Phinda, South Africa.                                                                                                                                                                                       (5)
5.2           How would Issies’s legal capacity be affected should she be minor at the time of the intended marriage?                    (5)


THE END

Friday 3 February 2012

Definitions and terminology


SECTION ONE: INTRODUCTION  TO THE MODULE:

Contents of the module:

Law of persons, focuses on the distinction the law makes between persons as “natural persons” and juristic persons and also the point at which a person’s legal personality begins, namely at birth and special rules applicable (Nasciturus fiction) should the interests of an unborn child be affected.

Presumption of death, the end of legal personality including the rules applicable where a person disappears and it is uncertain whether he/she is still alive.

Status of the legal subject i.e. a person’s standing in law, legal capacity, to act/litigate and to be held accountable for crimes and delicts.

Domicile, is an aspect of law that influences a person’s status.

Extra-marital children.

Age, as an important factor influencing a persons status i.e. the capacity of infants.  Termination of minority.  Diverse factors that influence a person’s status i.e. mental illness, intoxication etc.

General Concepts

1.     Agreement:  Conscious meeting of minds (consensus ad idem) between 2 or more persons.  An agreement creating obligations is known as a contract.

2.     Capacity to act:  The capacity to perform valid juristic acts.

3.     Capacity to litigate:  The capacity to appear in court as party to a suit.

4.     Contract:  An agreement entered into with the intention to create an obligation

5.     Curator:  A person who manages another person’s affairs on behalf of the latter because he or she is not capable of doing so.  A curator ventris acts, in general on behalf of an unborn child, A curator ad litem acts on behalf of another only for the purposes of litigation and a curator bonis administers another’s property.

6.     Damages:  The amount which a person can claim as compensation for actual patrimonial loss he or she has suffered as a consequence of delict or breach of contract.  See also “reparation” infra.

7.     Delict:  A wrongful and intentional or negligent act as a consequence of which another suffers a loss.  “Wrongful” signifies the infringement of a subjective right or the non- fulfilment of a legal duty.

8.     Enrichment:  Undue enrichment occurs where one person obtains a patrimonial benefit at the expense of another without a valid legal ground existing for the transfer of the benefit.

9.     Estoppel:  The doctrine that provides that if someone culpably represents that a certain state of affairs exists, and another person acts to his or her own disadvantage in consequence of such a representation, the deceiver is precluded from raising the true facts.

10.   Exceptio non adimpleti contractus:  A defence which a party to a reciprocal contract may, under certain circumstances, employ against the other party when the latter sues the former on the contract and latter him or herself has not performed or tendered performance.

11.   Juristic act:  A human act to which the law attaches at least some of the consequences desired by the party or parties performing the act.  The distinction between a void and voidable uristic act is important.  A void juristic act is void ab initio and devoid of all legal consequences.  The position is simply as if the juristic act had never taken place.  A voidable juristic ac, on the other hand, is valid and has all the usual legal consequences until it is nullified or set aside (i.e. by a party to the contract or a third party).  It differs from a valid juristic act un that it has some or other defect that might lead to its nullification, but does not render the juristic act void from the outset.

12.   Law of succession:  The law of intestate succession determines how and on whom a person’s estate devolves when he or she dies without a valid will.  The law of testate succession determines how and on whom a person’s estate devolves where a testator has left a valid will.

13.   Legal Capacity:  The capacity to be the bearer of rights and duties

14.   Legal/Juristic Fact:  Fact to which the law attaches consequences.

15.   Legal object:  Anything to which a legal subject may have rights

16.   Legal or juristic personality:  The attribute of having, rights duties and capacities in the eyes of the law.

17.   Legal subject:  A person or entity subject to the law.  A legal subject is a member of the legal community to whom the law applies and for whose benefit the law exists.  Legal subjectivity is the capacity of being a legal subject.  Legal subjectivity is apparent from the fact that every legal subject is the bearer of rights, duties and capacities

18.   Liability:  A person is legally liable if a performance which is due arising inter alia from contract or delict, can be legally enforced against him or her.

19.   Majors and minors and mondig and onmondig:  Majors and minors indicate whether a person is older or younger than 21 years, mondig en onmondig indicate a person is legally regarded as being capable of conducting his/her own affairs or not.

20.   Marital and extra-marital (legitimate and illegitimate) Children:  (An extra-marital child is also called an illegitimate child, but the preferred term is extra-marital)  A Marital child is a child born from parent who are legally married at the time of its conception,  birth or at any intervening time, and is also probably a child born from a  putative marriage.  Extra-marital children are all children who do not meet the requirements stated above.

21.   Negotiorum gestio:  That is the administering of another’s affairs to his or her advantage, but without his or her knowledge.

22.   Obligation: A juristic bond in term of which on the one hand a person/s has a right to a performance and, on the other hand, a person/s has a duty to render performance.  A civil obligation is legally enforceable while a natural obligation is unenforceable.

23.   Performance:  Human conduct which may consist of either doing or not doing something.  An obligation consists of a duty to render performance.

24.   Presumption:  An assumption made by the law on the basis of the available facts.  An irrebuttable presumption cannot be rebutted by proving facts to the contrary - in such a case the presumption is actually a legal rule which states that a certain acceptance must be made by the law if certain facts are proved to exist.   A rebuttable presumption is an acceptance which is made but which can be made rebutted by proving the contrary.

25.   Putative marriage:  A void marriage where one or both of the parties to the marriage are bona fide unaware of the defect invalidating the marriage.  As long as one or both of the parties remain bona fide unaware of the fact that the marriage is in fact invalid,  the putative marriage has the legal consequences of a valid marriage.

26.   Ratification:  That behaviour (tacit or express) whereby an error in a juristic act is rectified to that it acquires full validity retrospectively.

27.   Reparation (genoegdoening, solatium, satisfaction):  Compensation which a person may claim in regard to non-patrimonial loss that he or she has suffered as a result of a delict.  The word “damages” is often used both in the sense of patrimonial and non-patrimonial loss.  The distinction is nevertheless very important since different rules apply in regard to recovery of the two types of loss.  See also “Damages” Supra.

28.   Restitutio in Integrum:  A legal remedy by means of which the former position is restored, that is the return of whatever had been performed in term of a contract.

Case law LPLP 101

Law of Persons Cases


  1. Ex parte Boedel Steenkamp

Facts: Testator left estate to his daughter and her children. At the time that daughter was pregnant when the testator died.

Issue: Should the nasciturus inherit?

Ratio Decidendi/Held: Yes, A child already conceived will be regarded as already born and will therefore inherit if it is subsequently born alive
  1. Pinchin v Santam Insurance Co Ltd

Facts: A women who was six months pregnant was involved in a motor car accident due to the negligent driving of another person, causing her child to be born with cerebral palsy

Issue: Does a person have an action in respect of injury inflicted upon him while he was still a foetus in his mother’s womb?

Held: The court held that the nasciturus fiction has to apply so that he can claim for damages.
  1. Christian Lawyers’ Association of South Africa v The Minister of Health 1998

Facts: Christian Lawyer’s Association sought to declare the Choice of Termination of Pregnancy Act 72 of 1996 unconstitutional on the basis that a foetus has a right to life as contained in the bill of rights.

Issue: Is the Act constitutional?

Held: Yes, the Act was constitutional and women have the right to terminate pregnancies in accordance to act.
  1. Christian Lawyers’ Association v National Minister of Health 2004

Facts: A minor was pregnant and wanted to terminate her pregnancy.

Issue: Whether she could have an abortion without consent from her family

Held: The court held that she could terminate her pregnancy according to the Choice on Termination of Pregnancy Act 92 of 1996, as long as she was able to give her informed consent, which she did.
  1. Re Beaglehole

Facts: A beneficiary to a will, had not been located in 15 years

Issue: Should an application for a presumption of death succeed?

Held: No, the court held that an application fro a presumption of death should be left to the discretion of the judge (Roman-Dutch), hence the period of absence of a person is not required to order a presumption of death.
  1. Ex parte Pieters

Facts: The applicant’s father disappeared, and was unable to obtain the money left to him by his wife despite having a rule nisi granted

Issue: Should the application for a presumption of death be successful?

Decision: No, however the court authorised the Master to distribute the money equally between the applicant and his siblings without the necessity of their providing security.

Ratio Decidendi: The presumption of death is refused, because the evidence surrounding Mr. Pieters death is not conclusive.
  1. J v Director – General

Facts: Two applicants in a same sex life partnership, 2nd applicant gave birth to twins via artificial insemination

Issue: Is a child born due to artificial insemination legitimate?

Held: Yes, Children born as a consequence of artificial insemination are covered by the Children Status Act 82 of 1987, therefore the child was legitimate.
  1. M v R

Facts: The applicant and the respondent met in July 1978, and from then on had sexual intercourse regularly. Applicant claimed the respondent had another boyfriend. Respondent informed applicant that she was pregnant + gave birth to S. the applicant paid maintenance for 8 years. The respondent then wanted to increase the amount of maintenance, thus the applicant applied for an order, for the mother + the child to undergo blood test, to determine paternity.

Issue: Can the court order an adult to submit to a blood test?

Held: Yes, because the court is empowered to search + collect evidence, which is a procedural matter.
  1. S v L

Facts: Father of child wants a DNA test to be taken in order to prove paternity, but the mother refused. Father claimed “exceptio plurium concubentium”

Issue: Should the mother and the child be compelled to take a DNA test?

Held: No, the court, as upper guardian of minors, doesn’t have the power to interfere with
the decision of the child’s parents not to submit the child to blood tests, even if the court
would have made a different decision.    



  1. B v P

Facts: The appellant was the father of an extra-marital child. When the child was born the appellant and respondent were living together. In 1984 they stopped living together and the child lived with her mother. Until February 1989 he was allowed access to the child, since then he hasn’t been allowed access to his child, thus he has applied for an order declaring that he was entitled to reasonable access to the child.

Issue: Should the father have access to his extra-marital child?

Held:

11. Van Erk v Holmer

Facts: Applicant and respondent in a relationship from Feb 1988- Jan 1991. During Jan 1989 a child was conceived, things didn’t work out so respondent left applicant when the child was 2 years old and the respondent was denied access to the child.

Issue: Whether father must be granted access to his illegitimate child?

Held: Yes, court held that there wasn’t enough evidence except for the fact that the mother kept the child from father because of her own personal vendetta, thus father granted reasonable access to his child.
12. B v S

Facts: Appellant + Respondent lived together for most of 1988 + 1989 but separated when respondent was pregnant (son was born in July 1990). Some months before the birth they again started living again but separated again after baby’s birth. The respondent agreed that appellant could have access to his child. Their relationship soured + respondent refused appellant access to child thus appellant stopped paying maintenance. He approached the court for an order granting him access to his son, the application was dismissed in the court a quo but an appeal against this decision was successful.

Issue: Should the father have access to his extra-marital child?

Held:
13. Fraser v Children’s Court, Pretoria North

Facts: Ex-girlfriend tried to give unborn child up for adoption. Fraser tried to stop adoption asking for child to be given to him instead.

Issue: Do both parents of an illegitimate child need to give consent to adoption?

Held: Yes, court declared Child Care Act to be unconstitutional, Child Care Act amended to require the consent of both parents of an illegitimate if paternity is acknowledged and the father’s whereabouts are known.

14. Petersen v Maintenance Officer

Facts: A single mother (the applicant), received inadequate maintenance contributions from the father of the extra-marital child, launched an application for an order directing the Maintenance Officer (1st respondent) to summon the paternal grandparents to the maintenance court to establish their ability to pay maintenance.

Held: the common-law rule, as interpreted by Motan v Joosub, constitutes unfair discrimination on the ground of birth + amounts to an infringement of the dignity of the extra-marital child, it is also contrary to the best interest of the extra-marital child, thus paternal grandparents of child have a legal duty to support the extra-marital child.
15.  Government of South Africa V Grootboom

Facts: Mrs. Grootboom + 510 children lived in a squatter camp, on privately owned property. When evicted they applied to high court for an order requiring the govt. to provide adequate basic housing/shelter until permanent accommodation obtained.

Issue: Are section 26 + section 28(1)(c) of the constitution valid?

Held: No, these 2 sections have to be read together. The CC held that the rights enshrined in these sections doesn’t create separate + independent right for children + doesn’t entitle them to shelter on demand. CC warned, that the constitutional scheme for progressive realisation of socio-economic rights would make little sense if it could be trumped in every case by the rights of children to get shelter from the state on demand + children could become stepping stones to housing for their parents, instead of being valued for who they are.
16. Jooste v Botha

Facts: Plaintiff was born out of wedlock + his father (defendant) refused to admit that the plaintiff was his child, and didn’t provide any love/interest towards him. The plaintiff alleged that his father had a legal duty to give him love + recognition, due to constitutional provisions. Due to emotional stress + loss of amenities he claimed damages for R. 450 000, however the boy’s claim was rejected as it had no legal foundation.;

Issue: Do the best interests of the child demand an environment of love, affection +consideration legally enforceable?

Held: No, there rests no legal duty on defendant to afford the plaintiff love, affection + consideration. According to s28 (1)(b) of the constitution, envisages: “ A child in care of somebody who has custody over them” + the word ‘parental’ must necessarily be read as pertaining to a custodian parent. According to this approach a legitimate child’s non-custodian parent +biological father of an extra-marital child fall outside the scope of the section, + a child isn’t entitled to parental care by such parents.

17. Louw v MF & H Trust    

Facts: Minor had bought a motorcycle from an adult with the assistance of his guardian + wanted to reclaim the purchase price, he fraudulently represented himself as an adult.

Issue: Could he reclaim his money + rely on restutio in integrum?

Held: No, court held that because he misrepresented himself he couldn’t reclaim his money + also the contract was void + unenforceable, thus he couldn’t reclaim his money by means of restutio in integrum.
18. Edelstein v Edelstein

Facts: The appellant (minor) entered into an ante nuptial contract without the necessary consent.

Issue: Was the contract valid?

Held: No, court held than an ante nuptial contract concluded by a minor without assistance is void + cannot be ratified by the minor or her guardian after marriage.
19. Dickens v Daley

Facts: Respondent (minor) entered into a contract of lease with the appellant, and a cheque was issued to the appellant, but was dishonoured as payment had been stopped by the respondent.

Issue: Whether there was an effect of emancipation on the minor’s capacity to act.

Held: Yes, the minor’s parents had given him “complete freedom of action with regard to his mode of living + earning his livelihood”, he is emancipated for all purposes.