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]