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
- Please ascertain that
this paper has _____ pages inclusive of the cover page.
- You may start with any
question, provided the question is numbered correctly and clearly.
- Answer each question
on a new page.
- Neat writing will be
to your advantage.
- 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.
- 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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