Monday 2 June 2014

June 2013 Examination Paper

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EXAMINATION – 7 JUNE 2013

FACULTY OF COMMERCE, ADMINISTRATION AND LAW

DEPARTMENT OF LAW

LPLP101- LAW OF PERSONS 



DURATION: 3 HOURS                                                                  MARKS:   100
                                                                                                            SUBMINIMUM: 40%

Internal Examiner(s)                                                         
Mrs. L Ramaccio Calvino


Moderator
Dr. D Iyer





INSTRUCTION TO CANDIDATES


  1. Please ascertain that this paper has _____ pages inclusive of the cover page.
  2. You may start with any question, provided the question is numbered correctly and clearly.
  3. Answer each question on a new page.
  4. Neat writing will be to your advantage.
  5. When answering problem scenarios questions, please ensure that your legal opinion includes an introduction and conclusion. In addition each new thought should be expressed in a new paragraph.
  6. Reference to authority (legislation and/or case law) is important in substantiating your answers.

Question 1:


Maradeth and Derek are life partners. They decided to make use of a surrogacy agency, Baby Inc. to find a suitable surrogate mother. Mrs. Lexi Grey, a director of Baby Inc. guaranteed that their surrogate mothers are all medically fit to give birth to healthy babies.  

Derek’s sperm and Maradeth’s ova were harvested and artificially fertilised. Dr. Montgomery attended to implant the fertilise eggs into Arizona, the surrogate mother. One month later Maradeth and Derek received confirmation that they were going to have twins.

During the second trimester of the pregnancy, Arizona was involved in a vehicle accident. Shortly after the accident Dr. Montgomery performed an ultra sound on Arizona and noticed that one of the twins was developing a breathing problem. Dr Montgomery informed Maradeth and Derek that due to the injury sustained during the accident, one of the twins will not be able to live a normal life. Dr. Montgomery suggested that blood test be performed to confirm his prognosis. Arizona however refused to give her consent to draw blood from her or the unborn babies and threatened to terminate the pregnancy if Maradeth and Derek is going to insist on blood tests.  

During the third trimester of the pregnancy Arizona had to undergo an emergency operation after the twin with the lung injury, showed signs of distress. During the emergency delivery it was discovered that the babies were conjoined twins as their two bodies fused at the pelvic bone, resulting in them sharing a pelvis. At birth the twin with the lung injury stopped breathing for 2 minutes. Luckily Dr. Montgomery managed to resuscitate (revive) him by attaching a respirator to the baby. The twins were immediately separated after delivery.

Dr. Montgomery indicated that Baby Inc. should have scanned Arizona for addiction problems, as he discovered that Arizona was using non prescribed drugs during the pregnancy that probably contributed towards the twins being born as conjoined twins. After being accused of the aforementioned, Arizona decided that she wanted to cancel the surrogacy agreement. 

Derek, a manic depressant, was so distraught that he volunteered to be a fisherman on a fishing boat, never to be heard of again.   



Answer the following questions based on the aforementioned set of facts.

1.1       Considering that one of the twins is not ‘viable’, as well as considering the requirements for the beginning and end of legal personality and the provisions of the Birth and Death Registration Act 51 of 1992, advise Maradeth and Derek on whether they are obliged to register the babies, and if not, what is expected of them?                                               (10)
                                                           
           
1.2       Considering section 12(2) of the Constitution of South Africa 1996 providing for “everyone’s right to bodily and psychological integrity” as well as section 40 of the Children’s Act 38 of 2005, does Maradeth have the right to request that Arizona or the babies be submitted for blood tests. In addition what would be the requirements should Arizona have terminated the pregnancy in the second trimester of her pregnancy? Reference must be made to legislation and case law in substantiating your answer.                                                                                                                                (20)

1.3       As Derek was not married to Maradeth and the children were born by means of surrogacy, what is the presumption regarding paternity in these circumstances. In addition discuss whether Derek would have any parental rights and responsibilities in respect of the born children. Reference must be made to legislation and case law in substantiating your answer.                                                                                                (20)


1.4       Considering that Mrs. Lexi Grey guaranteed that Arizona is medically fit to give birth to a healthy child, as well as considering the fact that Arizona was involved in a vehicle accident causing the one twin to be born with a breathing problem,  would Maradeth be able to institute a civil action/s, and if so, against whom? Reference must be made to legislation and case law in substantiating your answer.                                                                                                                                                 (20)


1.5       Propose Maradeth married Steven 5 years after Derek’s disappearance and she wants Steven to adopt the minor children, how would she go about in having Derek declared presumably dead?                                                                                                               (10)


Question 2:

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)

  

Question 3:

Briefly explain how the following diverse factor/s may affect a person’s status:

8.1       A juristic act performed by a certified mentally ill person during a lucidum intervallum?                                                                                                                                               (5)


8.2       An intoxicated blind person shooting at a noise outside his out house, killing his neighbour.                                                                                                                           (5)
  


THE END





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