Question 1:
On the 1st day of April 2011 Kim was
riding her bicycle in a park, whilst her dog, Paris (a French poodle) was
running beside her on a leash. Whilst cycling, “Papa Joes CC” hot dog stand, belonging to Joe Rich exploded due to a gas
leak, resulting in Kim sustaining injuries resulting in medical expenses in the
amount of R10 00-00 and Paris being killed.
1.1
In lieu of the
aforesaid advise Kim as to whether she and/or Paris have any right of recourse?
Substantiate your answer. (5)
Students
were expected to differentiate between a legal subject and legal object. A
legal object has economic value whilst a legal subject refers to any entity
that can have rights, duties and capacities. In this regard Kim is a legal
subject with rights and responsibilities, whilst Paris is a legal object as a
dog can not be the holder of rights and responsibilities.
1.2
In the
event of Kim and/or Paris having a right of recourse, explain to her/them against
who such action will be instituted. Substantiate your answer. (5)
Students
were expected to differentiate between a natural person and a juristic person. A
natural person is therefore all human beings irrespective of their age, mental
capacity and intellectual ability, whilst a juristic person, such as a close
corporation, enjoys a legal experience independent from that of its members or
persons that created it. In this regard Kim, as a legal subject, will have a
right to institute a civil claim against Papa Joe CC and not Joe Rich, as Papa
Joe CC is a legal entity with rights and responsibilities, separate from its shareholder
(Joe Rich).
Question 2:
Ricky and John are permanent life partners. They
decide to have a family by making use of a surrogate mother. Whilst the
surrogate mother is giving birth to twins, one of the twins experience oxygen
deficiency and dies shortly after birth.
In lieu of the aforesaid, mention and discuss the legal requirements
for the beginning and end of legal personality in South
African law and advice Ricky and John as to whether South Africa law
will recognize them as the twin/twins parents, as well
as whether they should register both twins in terms of the Birth
and Death Registration Act, Act 51 of 1992, as they have
been told by a friend that due to one of the twins not being viable
after birth, it will not be required to register that twin.
Substantiate your answer with reference to case law. (10)
Requirements for beginning of life are that the
foetus must be born alive and that birth must be fully completed (separated from
the mother), despite some authors also maintaining that the child should also
be viable. The requirements for the end of legal personality are that a person
must have no brain, heart or lung functions.
In lieu of J
v Director General, Department of Home Affairs it was held that same-sex
couples may have children born as a result of artificial insemination
registered as their children as it was held that section 5 of the Children’s Status
Act 82 of 1987 was unconstitutional by not providing that the name of the spouse
in the case of same-sex partners be reflected on the birth certificate.
In lieu of the circumstances it will be required to
register both children in terms of sections 4 and 9(1) of the Birth and death
Registration Act 51 of 1992, as the requirements for the beginning of life was
fulfilled. The twin died shortly after his birth. The twins should therefore be
registered within 30 days after their birth by either Rick or John. Viability
is not a requirement for the beginning of legal personality. In the event of
the twin being stillborn notice of stillbirth should be given to the Director
General, Home Affairs in terms of section 18 of the said Act.
Question 3:
Briefly discuss with reference to case law the patrimonial and per-natal interests in which the
nasciturus fiction has been
applied in our law with reference to case law and address whether the
Choice of Termination of Pregnancy Act 92 of 1996 is
in violation of section 10 of the Constitution 108 of 1996? (10)
Patrimonial interests relate to inter alia
succession. In this regard reference could be made to Ex Parte Boedel Steenkamp whilst Pinchin v Santam Insurance Co
Ltd or RAF v Mtali relates to per-natal
injuries.
With regards to the second part of the question, although
the law protects the potential interest of the nasciturus by employing the
fiction that he or she is regarded as having been born at the time of his/her
conception whenever it is to his/her advantage, it was confirmed in Christian Lawyers Association of South Africa
v The Minister of Health that due to
a unborn not having any rights prior to birth, the issue of conflict between
the unborn child’s constitutional right to life i.t.o. section 10 of the
Constitution and those of the pregnant women dies not arise as a pregnant women
has the right to solely decide to terminate her pregnancy.
Question 4:
John and Jill have been married for 10 years. After
an argument, John drives off in his vehicle never to return home. Two years
later Jill was told by a friend of John that he was told that John died in an
aeroplane accident. Jill approaches you and
informs you of the assumption that John is deceased and esquires from you
whether she can now get remarried.
Explain to Jill what remedy is available to her and what the remedy
entail. Substantiate your answer with reference to
legislation and case law. (10)
In lieu of the aforesaid circumstances the common
law procedure for an application for the presumption of death will apply, as
there is no reason to suspect that John’s death was due to unnatural causes.
If a person disappear and there is no certainty as
to whether the person is dead or alive an application can be brought in the
High Court by any interested for an order declaring such person dead. Prior to Ex Parte Beaglehole the English rule was
that a intereste4d party must wait 7 years before bringing such an application.
Subsequent to the aforesaid case there is no time restriction.
In bringing such application the applicant must
finish the court with relevant factors, where after the court will issue a rule
nisi to enable the applicant to publish such
application in the Government Gazette as well as two local news papers where
the missing person used to live. The court may under certain circumstances
request that the applicant file security, as in the case of Ex Parte Kannemeyer.
Jill will therefore have to bring an application
for the presumption of John’s death as well as a separate application in terms
of section 1 of the Dissolution of Marriages on Presumption of death Act 23 of
1979 thereby dissolving the marriage of the missing person at the same time as
the presumption of death order.
Question 5:
John is born in South Africa. After his studies he is employed in London
on a 6 month contract. During his stay in
London, he fell in love with Helga, a Swiss citizen, and got married in
Bali.
5.1 A year later John
institutes a divorce action against Helga. Helga alleges that John was
domiciled in London, therefore the English law should regulate the patrimonial
consequences of their marriage. Do you agree with Helga’s submission?
Substantiate your answer with reference to the requirements of choice of
domicile? (5)
For John to have changed his domicile of choice he needs to fulfill two
requirements, namely he must have the
intention (animus)to settle in
London indefinitely and he should be in London for a period of physical
residence(factum). In
these circumstances it is evident that John did not intend to
reside in London for an indefinite
period of time as he was
appointed on a 6 months contract, hence he did not comply with the
animus requirement. As a result John’s domicile
remained RSA and accordingly the lex
domicilli matrimonii , being RSA will apply to John and Helga’s patrimonial
consequences of their marriage.
5.2 If Helga was a minor
at the time of the marriage, how would her marriage to John have affected her
status? (5)
Status
refers to a person’s standing in law. Once Helga is married she is emancipated,
hence is regarded as a major. One’s status determines ones capacities to have rights
and duties and as such Helga will have the capacity to act, litigate and be
held accountable.
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