Friday, 3 February 2012

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?


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?

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.


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  4. so helpful, can you please try to use full citation of the cases..