June/July Supplementary Exam 2011

SUPPLEMENTARY EXAMINATIONS

 JULY 2011

Time:                        3 Hours

Subject:                    Law of Persons

This paper consists of five pages including the cover page.

Internal Examiner                                                 

Mrs L Ramaccio Calvino                                              HOD : Mr L. Ndlovu

Internal Moderator

Mr D Iyer                                                      

Instructions to Candidates

1. Answer all questions

2. It is in your best interest to write clearly and legibly.

3. Rely on relevant case law and statutory provisions and refer to the 

    legal position in South Africa.

Question 1: (2 marks each)

1.1        Indicate which one of the following entities is not recognized as a juristic person in our law:                                                                                                

a.         A bank

b.         Trade unions

c.         Partnerships

d.         Churches                                                                                             

1.2        Indicate which one of the following statements is correct:                  

a. In South African law, a common-law presumption of death can only be granted after the person concerned has been missing for seven years.

b. A statutory presumption of death can only be ordered if the judicial officer is certain on a preponderance of probabilities that the person is dead.

c. If a common-law presumption of death is expressed, it automatically dissolves the marriage of the person concerned.

d. Once a presumption of death has been expressed, the person’s estate may be divided.                                                                                     

1.3        In terms of the Births and Deaths Registration Act 51 of 1992, the Director-General of Home Affairs must be notified of the birth of every child who is born alive. In the case of a child born of parents who are not married to each other and are also not each other’s civil union partners at the time of the child’s conception or birth or at any intervening time, the birth is registered under                                          

            a. The surname of the child’s mother

b. The surname of the mother’s guardian

c. The surname that the high court decides on for the child

d. The parents’ surnames joined together as a double-barrel surname        

1.4        In which one of the following cases did the court decide that an action for pre-natal injuries should be based on the law of delict?                                                         

a. Road Accident Fund v M obo M

b. Pinchin v Santam Insurance Co

c. Ex parte Boedel Steenkamp

d. Ex parte Pieters                                                                                            

1.5        Which one of the following statements is correct?                                          

a. In terms of the nasciturus fiction, the unborn child is a legal subject from the date of conception.

b. For birth to be complete, it is not necessary that the umbilical cord be severed.

c. Any termination of pregnancy may only be performed by a medical practitioner.

d. The Choice on Termination of Pregnancy Act violates section 11 of the Constitution.                             

1.6        Indicate which one of the following statements is correct:                              

a. The lexloci domicilii of a woman at the time of her marriage determines what the matrimonial property regime of the marriage will be.

b. Children below the age of 18 follow the domicile of their father.

c. If a person has relinquished his or her previous domicile but has not yet acquired a new domicile, the person's domicile of origin revives.

d. The animus requirement for domicile of choice refers to the intention to settle at a particular place for an indefinite period.             

1.7               Indicate which one of the following four contracts is valid:                             

a. Zinzi is six years old. Her uncle gives her a radio as a gift. She accepts the gift without any assistance.

b. Vuyo is 16 years old. He buys a motor cycle, without any assistance, from a     dealer.

c. Michael is six years old. Michael's father, on his behalf, buys him a tricycle from a dealer.

d. John is 16 years old. He takes out a life insurance policy, without any assistance.                                                                                            

1.8        In which one of the following examples will the minor's guardian not incur personal (contractual) liability for the minor's contract?                                                        

a. If the minor has acted as the guardian's agent.

b. If the guardian has ratified a contract that the minor concluded as his or her agent.

c. If the minor has concluded a contract with the consent of his or her guardian.

d. If the guardian has guaranteed performance by the minor.

1.9        lndicate which one of the following statements is correct:                              

a. A minor can be a director of a company.

b. A minor can be the trustee of an insolvent estate

c. A minor can be appointed as someone else's guardian.

d. A minor can act as someone else's agent without the consent of his or her guardian.

1.10      Indicate which one of the following statements is incorrect:                           

a. Tacit emancipation terminates minority for all purposes.

b. A person who has been declared a major in terms of the Age of Majority Act 57 of 1972 is for all purposes regarded as having reached the age of majority.

c. Venia aetatis refers to the concession to act as a major, granted to the minor by the sovereign at common law.

d. Release from tutelage refers to the authority the courts had at common law to confer full capacity to act on a minor.                       

                                                                                                                                                            [20]

Question 2:

The dependants of a breadwinner institute an action on the ground that his death was caused unlawfully and culpably.  With reference to case law discuss the possibility that their action may include a claim on behalf of an unborn fetus.                                                                                                                                     [10]

Question 3:

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:

3.1        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.                                                                                                                                                     

                                                                                                                                                                     

3.2       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?                                                                                        

                                                                                                                                                             [10]

Question 4:

After Jack and Jane had been married for 8 years, Jack, a soldier, was sent to Iraq by the South

African National Defense Force. Five years ago, it was reported that the truck he was traveling in

had burnt down. His body was never found. Jane applied for a presumption of death with regard to

Jack. Her application was successful. She now wants to marry James. Jane comes to you for

advice. Advise her on the validity of the planned marriage, with reference to authority.                          [(10)]

Question 5:

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 to blood tests in order to attain certainty on whether he could be the father of the child. However, she refused. With reference to case law, discuss the question whether the court can compel Karin to submit herself and her daughter to blood tests.                                                                                                                                       [(20)]

Question 6:

Amy is 15 years old and mentally incapacitated. She was born in Pretoria and lived there with her

parents until they divorced eight years ago. After the divorce, her mother moved to Durban while

her father stayed in Pretoria. Amy has been living with her sister in Kimberley for the past six years.                                                                                                                                                   [5]

Question 7:

Discuss the provisions of the new Children’s Act 38 of 2005 that deal with parental

responsibilities and rights of unmarried fathers.                                                                                     [(10)]

Question 8:

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.

8.1        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)

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

authority.                                                                                                                                     (5)

                                                                                                                                                  

                                                                                                                                                 [10]

Question 9:

John is a declared prodigal and an alcoholic, whom is also unable to manage his own affairs. The court interdicted him from administering his estate.  Discuss John’s legal capacity in lieu of the aforesaid facts.                                                                                                                                                             [(5)]

THE END