Question & Answers - Assessment 1-2012

Question 1:

On the 1^st 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.

Example of 1st Assessment 2011

UNIVERSITY OF ZULULAND

FACULTY OF COMMERCE, ADMINISTRATION AND LAW

LAW OF PERSONS – LPLP101

1st ASSESSMENT 2011

ASSESSOR:  MRS L RAMACCIO CALVINO

INTERNAL MODERATOR: MR D IYER

DURATION: 1 HOUR                                                                                                                                                 MARKS 50

INSTRUCTIONS:

1.                    ENSURE THAT YOUR NAME AND STUDENT NUMBER ARE CLEARLY REFLECTED ON THE ANSWER BOOK.

2.                    QUESTIONS MAY BE ANSWERED IN ANY ORDER. CLEARLY INDICATE EACH QUESTION ANSWERED AND LEAVE AT LEAST TWO LINES OPEN BETWEEN ANSWERING THE QUESTIONS.

3.                    IN ANSWERING THE QUESTIONS PARAGRAPHS SHOULD BE USED (EACH NEW IDEA SHOULD BE ADDRESSED IN A NEW PARAGRAPH).

Question 1:

Derek and Sloan are joint partners of DIESEL STANDS. During the 2011 inter varsity between the University of Zululand and The University of KwaZulu Natal one of their spectator stands collapses resulting in Bailey sustaining injuries resulting in medical expenses to the extend of R100 000-00. In lieu of the definition of law of persons as well as the classes of legal subjects recognised in South African law, against whom should Bailey institute a civil claim? Substantiate your answer. (5)

Question 2:

Arizona and her life partner, Maradeth are expecting their first child. During the delivery of Arizona Junior the fetus experience an oxygen deficiency and dies shortly after birth. 

2.1           Briefly mention the legal requirements for the beginning and end of legal personality in South African law with reference to relevant case law.                                                                                                                                                            (5)

2.2           Briefly discuss the provisions of the Births and Deaths Registration Act, Act 51 of 1992 that will be relevant in lieu of the aforesaid set of facts.                                                                                                                                                         (5)

Question 3:

Although the nasciturus fiction had limited use in the common law, its application in South African law has been extended protecting any conceivable interest.

3.1           Briefly discuss with reference to case law the patrimonial and pre-natal interests in which the nasciturus fiction has been applied in our law.                                                                                                                                                           (4)

3.2           Does the protection of the interest of the nasciturus imply that an unborn child is sometimes a legal subject? Substantiate your answer.                                                                                                                                                                           (6)

Question 4:

Mc Steamy, an experienced pilot, has been missing for 10 years since he left Durban airport on route to Botswana. Mrs Mc Steamy wishes to sell property jointly owned by her and Mr Mc Steamy. 

4.1           Briefly differentiate between the common law and statutory process of having a person declared presumably dead.                                                                                                                                                                              (5)

4.2           Mention which process (common law application or statutory law process) will be applicable in lieu of the aforesaid set of facts.                                                                                                                                                                               (5)

4.3           Should the order be granted in terms of paragraph 4.2 herein above, can Mrs Mc Steamy get remarry? Substantiate your answer.                                                                                                                                                                         (5)

Question 5:

Stevens is a UK citizen and is domiciled in London. He visits South Africa where he meets Issie, a

German holidaymaker. They decide to get married at Phinda Game Reserve, South Africa.

5.1           Which legal system will be applicable to the solemnization of their marriage and what will determine the said system. Briefly mention the requirements that Stevens will have to comply with should he wish to change his domicile to Phinda, South Africa.                                                                                                                                                                                       (5)

5.2           How would Issies’s legal capacity be affected should she be minor at the time of the intended marriage?                    (5)

THE END

Definitions and terminology

SECTION ONE: INTRODUCTION  TO THE MODULE:

Contents of the module:

Law of persons, focuses on the distinction the law makes between persons as “natural persons” and juristic persons and also the point at which a person’s legal personality begins, namely at birth and special rules applicable (Nasciturus fiction) should the interests of an unborn child be affected.

Presumption of death, the end of legal personality including the rules applicable where a person disappears and it is uncertain whether he/she is still alive.

Status of the legal subject i.e. a person’s standing in law, legal capacity, to act/litigate and to be held accountable for crimes and delicts.

Domicile, is an aspect of law that influences a person’s status.

Extra-marital children.

Age, as an important factor influencing a persons status i.e. the capacity of infants.  Termination of minority.  Diverse factors that influence a person’s status i.e. mental illness, intoxication etc.

General Concepts

1.     Agreement:  Conscious meeting of minds (consensus ad idem) between 2 or more persons.  An agreement creating obligations is known as a contract.

2.     Capacity to act:  The capacity to perform valid juristic acts.

3.     Capacity to litigate:  The capacity to appear in court as party to a suit.

4.     Contract:  An agreement entered into with the intention to create an obligation

5.     Curator:  A person who manages another person’s affairs on behalf of the latter because he or she is not capable of doing so.  A curator ventris acts, in general on behalf of an unborn child, A curator ad litem acts on behalf of another only for the purposes of litigation and a curator bonis administers another’s property.

6.     Damages:  The amount which a person can claim as compensation for actual patrimonial loss he or she has suffered as a consequence of delict or breach of contract.  See also “reparation” infra.

7.     Delict:  A wrongful and intentional or negligent act as a consequence of which another suffers a loss.  “Wrongful” signifies the infringement of a subjective right or the non- fulfilment of a legal duty.

8.     Enrichment:  Undue enrichment occurs where one person obtains a patrimonial benefit at the expense of another without a valid legal ground existing for the transfer of the benefit.

9.     Estoppel:  The doctrine that provides that if someone culpably represents that a certain state of affairs exists, and another person acts to his or her own disadvantage in consequence of such a representation, the deceiver is precluded from raising the true facts.

10.   Exceptio non adimpleti contractus:  A defence which a party to a reciprocal contract may, under certain circumstances, employ against the other party when the latter sues the former on the contract and latter him or herself has not performed or tendered performance.

11.   Juristic act:  A human act to which the law attaches at least some of the consequences desired by the party or parties performing the act.  The distinction between a void and voidable uristic act is important.  A void juristic act is void ab initio and devoid of all legal consequences.  The position is simply as if the juristic act had never taken place.  A voidable juristic ac, on the other hand, is valid and has all the usual legal consequences until it is nullified or set aside (i.e. by a party to the contract or a third party).  It differs from a valid juristic act un that it has some or other defect that might lead to its nullification, but does not render the juristic act void from the outset.

12.   Law of succession:  The law of intestate succession determines how and on whom a person’s estate devolves when he or she dies without a valid will.  The law of testate succession determines how and on whom a person’s estate devolves where a testator has left a valid will.

13.   Legal Capacity:  The capacity to be the bearer of rights and duties

14.   Legal/Juristic Fact:  Fact to which the law attaches consequences.

15.   Legal object:  Anything to which a legal subject may have rights

16.   Legal or juristic personality:  The attribute of having, rights duties and capacities in the eyes of the law.

17.   Legal subject:  A person or entity subject to the law.  A legal subject is a member of the legal community to whom the law applies and for whose benefit the law exists.  Legal subjectivity is the capacity of being a legal subject.  Legal subjectivity is apparent from the fact that every legal subject is the bearer of rights, duties and capacities

18.   Liability:  A person is legally liable if a performance which is due arising inter alia from contract or delict, can be legally enforced against him or her.

19.   Majors and minors and mondig and onmondig:  Majors and minors indicate whether a person is older or younger than 21 years, mondig en onmondig indicate a person is legally regarded as being capable of conducting his/her own affairs or not.

20.   Marital and extra-marital (legitimate and illegitimate) Children:  (An extra-marital child is also called an illegitimate child, but the preferred term is extra-marital)  A Marital child is a child born from parent who are legally married at the time of its conception,  birth or at any intervening time, and is also probably a child born from a  putative marriage.  Extra-marital children are all children who do not meet the requirements stated above.

21.   Negotiorum gestio:  That is the administering of another’s affairs to his or her advantage, but without his or her knowledge.

22.   Obligation: A juristic bond in term of which on the one hand a person/s has a right to a performance and, on the other hand, a person/s has a duty to render performance.  A civil obligation is legally enforceable while a natural obligation is unenforceable.

23.   Performance:  Human conduct which may consist of either doing or not doing something.  An obligation consists of a duty to render performance.

24.   Presumption:  An assumption made by the law on the basis of the available facts.  An irrebuttable presumption cannot be rebutted by proving facts to the contrary - in such a case the presumption is actually a legal rule which states that a certain acceptance must be made by the law if certain facts are proved to exist.   A rebuttable presumption is an acceptance which is made but which can be made rebutted by proving the contrary.

25.   Putative marriage:  A void marriage where one or both of the parties to the marriage are bona fide unaware of the defect invalidating the marriage.  As long as one or both of the parties remain bona fide unaware of the fact that the marriage is in fact invalid,  the putative marriage has the legal consequences of a valid marriage.

26.   Ratification:  That behaviour (tacit or express) whereby an error in a juristic act is rectified to that it acquires full validity retrospectively.

27.   Reparation (genoegdoening, solatium, satisfaction):  Compensation which a person may claim in regard to non-patrimonial loss that he or she has suffered as a result of a delict.  The word “damages” is often used both in the sense of patrimonial and non-patrimonial loss.  The distinction is nevertheless very important since different rules apply in regard to recovery of the two types of loss.  See also “Damages” Supra.

28.   Restitutio in Integrum:  A legal remedy by means of which the former position is restored, that is the return of whatever had been performed in term of a contract.