Pvl 1501 Study Pack.pdf

LAW OF PERSONS THE ULTIMATE LAW OF PERSON’S EXAM PACK: 1 Simplified notes 2 Summarised court cases 3 Past exam papers with solutions For more information & other modules: Call 0123230662/0712468412

Prepared by Stacy Mulenga (BBL-Unisa) (071 161 5920)

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Introduction Law of persons Law of persons determines: 1. which beings are legal subjects 2. how a legal subject originates and comes to an end 3. what legal status involves 4. what effect various factors have on a person's legal status Confined to treatment of the natural person only: not juristic persons. Deals virtually exclusively with the status of natural persons in the field of private law. Different kinds of legal subjects Legal personality is bestowed only on legal subjects. In SA we have: 1. The natural person 2. The juristic person Factors determining recognition as a legal subjects Legal personality is conferred only to entities the law sees fit to recognize as legal subjects. The following factors determine what is recognized as a legal entity within a country: 1. Legal norms and views of a particular community 2. The needs of commercial traffic 3. Historic and cultural background of a specific nation Thus, as these factors change, what is recognized as a legal entity is subject to change. Natural Person All human beings, irrespective of age, mental capacity or intellectual capacity, are recognized as legal subjects: known as “natural persons” Thus: every human can have rights, duties and capacities based on mental capacity & age.

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Exceptions before modern law Slavery was not abolished in the Cape until 1834: until then slaves in SA were legal objects who could not have rights, duties or capacities. Monstra: babies born so deformed that they lacked the human form and human mind were not legal subjects under Roman & Roman Dutch law: today any abomination is regarded as a legal subject. Juristic person Legal personality is also bestowed on certain associations of natural persons. The association itself is granted legal personality and is called a juristic person. Characteristics of a juristic person 1. Enjoys a legal existence independent from its members or the people who created it 2. Must always act through its functionaries, i.e. directors of a company 3. When functionaries act on behalf of the juristic person, it juristic person acquires rights, duties and capacities, i.e. be bind itself to a contract, be owner of things, etc. What is recognized as juristic persons? 1. Associations incorporated in terms of general enabling legislation, i.e. companies, banks, close corporations and co-operatives 2. Associations especially created and recognized as juristic persons in separate legislation, i.e. universities, semi-state organizations, public corporations (Eskom, SABC) 3. Associations which comply with the common-law requirements for the recognition of legal personality of a juristic person, i.e. churches, political parties, trade unions: known as universitates: Must meet following requirements: a. Association must have a continued existence irrespective of the fact that its members may vary b. Must have rights, duties and capacities c. Its object must not be the acquisition of gain Trusts and partnerships are not recognized. Beginning of legal personality Legal personality begins at birth: foetus is not a legal subject. Requirements for the beginning of legal personality: 1. Birth must be fully completed: complete separation between mother & foetus; umbilical cord does not have to be severed 2. Child must live after the separation: stillborn foetus does not acquire legal personality.

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Viability (child can live independently of mother) is not a requirement for commencement of legal personality in South Africa due to viability being a vague concept that could lead to impossible problems of evidence (how to determine viability, length of life before viable, etc.). Determining whether a child was alive 1. Purposes of criminal proceedings: Section 239(1) of the Criminal Procedure Act 51 of 1977: if the child has breathed, it was alive; child did not have to have independent circulation; child does not have to be entirely separated from its mother. 2. Courts: rely on medical evidence: normally whether child breathed or not; any other medical evidence by which life may be proved should be acceptable. Registration of births Births and Deaths Registration Act 51 of 1992 1. The Director General of Home Affairs must be notified of the birth of every child that was born alive within 30 days of the child’s birth. 2. Duty rests on the parents to give notice: if neither can, notice must be given by: d. The person who has charge of the child e. The person the parents requests to do so 1. Anyone may apply to the Director General to assume a different surname 2. If a child’s surname has changed, the birth register may be changed to reflect the change. Naming of legitimate children under the act 1. Child must have a first name and a surname 2. Notice of legitimate child’s birth: must be given under the surname of either parent or both surnames joined together: double-barrelled. 3. Children born as a consequence of artificial fertilisation of a woman who is a partner in a same-sex life partnership are also legitimate due to J v Director General, Department of Home Affairs: (2) thus counts for them too Naming of extra-marital children under the act 1. An extramarital child is registered under surname of mother unless parents jointly request that the father’s surname be used 2. If an extramarital child is registered under father’s name, the father must acknowledge paternity in presence of person to whom the notice of birth is given and enter his particulars on the notice of birth

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4. 5. 6. 7.

A father who wants to acknowledge paternity of an extramarital child and enter his particulars on the notice of birth after the birth has already been registered, may do so with the mother’s consent If the mother withholds consent, the father may apply to the high court for a declaratory order confirming his paternity and dispensing with the mother’s consent If an extramarital child is registered under her father’s surname, the surname may only be changed with the father’s written consent. No provision is made in the act for double-barrelled surnames of extramarital children. If the parents of an extramarital child marry after the birth has been registered, the register can be altered as if the parents were married at the time of birth.

Definition of extra-marital/legitimate 1. “Child born out of wedlock” (extra-marital) does not include children whose parents were married at the time of conception or at any time thereafter before the completion of the child’s birth. 2. Concept of “marriage” has been expanded to include customary marriages and marriages concluded or solemnized according to the tenets of any religion: thus child = legitimate. 3. Religious marriages in (2) have not been afforded full recognition in our law, thus child is only considered legitimate for the purposes of registration of birth and not for all purposes. Interests of the unborn child (nasciturus) Nasciturus fiction Law protects the potential interests of the nasciturus by employing the fiction that the foetus is regarded as having been born at the time of conception when it is to his advantage. In such a case, the legal position is kept in abeyance (interests are kept aside) until birth of the child or until certainty has been reached that foetus will not become legal subject (abortion, miscarriage, etc.). If foetus does become a legal subject, he receives the rights that have been kept in abeyance for him. Unborn foetus cannot have rights, duties or capacities. Requirements when employing the fiction 1. Child must have been conceived at the time that the benefit would have accrued to him 2. Child must subsequently be born alive

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Limitations of the fiction 1. A third person may benefit from the application of the fiction if such a benefit is a natural consequence of the application of the fiction in favour of the nasciturus, but the fiction may not be employed if only a third person will benefit, thus: f. If inheriting nasciturus dies shortly after birth, fiction will not be employed as only a third party benefits and not the child. g. If nasciturus inherits an estate large enough to support it, the parents will not be liable for its maintenance: thus parents and nasciturus benefit. 1. Fiction cannot be employed to the detriment of the nasciturus Interests taken into account In common law the nasciturus fiction was mainly employed in the field of succession. In SA, he fiction’s application has been extended beyond the law of succession: Patrimonial interests Succession Intestate succession (person dies without a will) Nasciturus is employed: Distribution of assets is postponed until it is certain whether or not a live person has been born. If child is alive: inherits as if already alive at time of deceased’s death. If child is not alive: does not obtain rights and is not considered when estate is divided. Testate succession (testator leaves a valid will) If testator’s intentions regarding the unborn child is clear, testator’s intention is carried out. If intentions are unclear, rules of the law of succession must be employed. Examples: 1. If X leaves property specifically to A, B and C while D has already been conceived at the time of the testators death but has not yet been born, D gets nothing. 2. If X leaves property to his (grand)children who are “born or still to be born”, any such (grand)children born after X’s death will inherit regardless of whether or not they had already been conceived at the time of X’s death. 3. If X does not appoint beneficiaries by name but as members of a class (i.e. “children of Y”), a child in that class who was already conceived at the time of X’s death can inherit. Ex Parte Boedel Steenkamp: X left stuff to “children who are alive at the time of my death”: Judge decided conceived child should also inherit as the words “are alive” do not rebut the strong natural presumption that the testator intended to include the nasciturus. Steenkamp demonstrates: www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 6

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Court’s unwillingness to act to the prejudice of the nasciturus A testator who wishes a nasciturus not to inherit must express that intention very clearly.

Fideicommissum Testator has ability to leave stuff to persons as yet unborn or unconceived: A leaves farm to B, proviso farm must devolve to B’s eldest son, C, after B’s death, and to D after C’s death: 1. Institution know as fideicommissum 2. B is known as the fiduciary (fiduciarus) 3. C and D are known as the fideicommissaries (fideicommissarii) Fideicommissum: protection of the interests of the unborn child 1. B may not alienate or mortgage the farm without the high court’s permission h. If all fideicommissaries are majors and consent to alienation or mortgaging, there will be no problem in obtaining such an order i. If there is a minor or unborn fideicommissary, the court must give or withhold its consent as upper guardian of all minors 1. The court will only give its consent if the alienation or mortgaging will be to the advantage of all beneficiaries, including the unborn Standard protection of the interests of the unborn child 1. Immovable Property Act 94 of 1965 provides that the court has the power to remove or modify restrictions on immovable property which have been imposed by a will if it is to the advantage of the unborn or unconceived person. 2. Administration of Estates Act 66 of 1965 provides that a. if an unborn child will after birth become entitled to money or movable property which is subject to somebody else’s usufructuary of fiduciary rights, that person must give security to the master of the high court for the payment of the money or delivery of the property to the child after its birth. b. The master may consent to the subdivision of the land on behalf of the unborn heir if this is expedient and equitable 3. In legal proceedings involving property in which an unborn person may have an interest, a curator ad litem looks after the unborn child’s interests. Maintenance In Chisholm v ERPM 1909 it was held that: 1. a child whose father is killed prior to her birth as a result of someone else’s delict has a dependant’s action for damages of support against that person. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 7

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damages are calculated on the basis of putting the child in the position it would have been in had the father not been killed In Shields v Shields 1946 it was held that: 3. A mother or father cannot waive his or her unborn child’s right to claim maintenance 4. An agreement to that effect would be contra bonos mores. If a pregnant mother divorces the father of her unborn child, the court may provide for the child’s maintenance in the divorce order in order to avoid the need for legal proceedings about maintenance after the child’s birth. This is not based on the nasciturus fiction, it is merely a common sense approach based on expedience. Personality Interests In Pinchin v Santam Insurance Co the nasciturus fiction was extended to the field of delict: the father claimed damages for the infringements of the child’s personality rights. The legal question was whether a person has an action for injury inflicted on him while still a foetus in his mother’s womb. Judge Hiemstra, after looking at various sources, decided our law was flexible enough to extend the nasciturus fiction to the field of delict. He accordingly held that a child does have an action to recover damages for pre-natal injuries. See Cases for full exposition. Criticism against Hiemstra’s judgement The question which arose in Pinchin could have been solved without invoking the nasciturus fiction: 1. The ordinary principles of the law of delict would have given the child an action for prenatal injuries anyway. 2. All the elements of a delict need not be present at the same time and that it therefore does not matter that the conduct and its consequences do not manifest themselves at the same time 3. Thus the requirements of conduct and damage are met even if the disability which the child suffers after birth was caused by the driver before birth Arguments for Hiemstra’s judgement Nasciturus fiction has to be applied in order to give an action for pre-natal injury: 1. An unborn child has no legal personality and thus no rights that can be infringed by a delict 2. Thus in order to provide the child with an action, the child’s legal personality must be pre-dated to before the birth so that the child has legal personality at the time of the conduct causing the injury www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 8

Guardianship and custody Guardianship and custody are the 2 components of parental authority. Guardianship: capacity a parent has to administer his child’s estate and assist child in the performance of juristic acts. Custody: controlling the person of the child. If a woman is pregnant and gets divorced, the court may include an order regarding custody & guardianship in the divorce: done to obviate further legal proceedings once the child is born. Same as maintenance: nasciturus not invoked; merely for convenience once child is born. Parental authority does not arise until the child is actually born: 1. A pregnant woman cannot have parental authority over a part of her own body 2. A father cannot have parental authority over a part of the woman’s body 3. The father cannot stop the mother from having an abortion, thus he cannot even have parental authority over the foetus 4. Question of how one would exercise parental authority, especially custody, over an unborn child arises Friedman v Glicksman 1996: Mother wants to enter into a contract for her unborn child. Problems with this: 1. Legal personality only begins at birth, thus mother may not enter into a contract on behalf of a non-existent principle. 2. Nasciturus can also not be used: would mean that parental authority is conferred on parent before birth of child (not possible) Solution to this: rd 1. Parent enters into a contract with a 3 person 2. Parent (A) enters into a contract with somebody else (B) in terms of which B undertakes to keep open an offer of contract with the unborn child (C) after his birth 3. C is thus not party to the contract, only A and B, thus it does not matter that C does not yet exist Termination of Pregnancy Choice on Termination of Pregnancy Act 92 of 1996 regulates termination of pregnancies. Circumstances under which pregnancy may be terminated 1. On the request of the woman during the first 12 weeks of the gestation period th th 2. From the 13 to the 20 week of the gestation period if a medical practitioner, after consultation with the pregnant woman is of the opinion that: www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 9

3.

a. The continued pregnancy of the pregnancy would pose a risk of injury to the woman’s physical or mental health b. There is a substantial risk that the foetus would suffer from severe physical or mental abnormality c. The pregnancy resulted from rape or incest d. The continued pregnancy would significantly affect the woman’s social or economic circumstances After the 20th week of the gestation period only after a medical practitioner in consultation with another medical practitioner or a registered midwife is of the opinion that the pregnancy would a. Endanger the woman’s life b. Result in severe malformation of the foetus; or c. Pose a risk of injury to the foetus

Before the 12th week a termination may be performed by either a midwife or a medical practitioner. After the 12th week only by a medical practitioner. Consent by mentally able women 1. Termination may only take place with the informed consent of the pregnant woman. 2. No consent other than that of the woman is needed, unless the woman is incapable of giving consent 3. Minors must be advised to consult with their parents, guardians, family members or friends before termination but may not be denied if she prefers not to do so. Consent by mentally disabled and unconscious women Termination with consent of spouse/guardian/curator personae 1. If (1) the gestation period is less than 21 weeks and (2) the circumstances listed under point 2 of 3.7.1 are present the pregnancy may be terminated by a guardian or spouse if the woman: a. is mentally disabled to such an extent that she is incapable of understanding and appreciating the nature or consequences of terminating her pregnancy, or b. she is in a state of continued unconsciousness without a reasonable prospect of regaining consciousness in time to request and consent to the termination 2. The curator personae may consent if the woman’s guardian or spouse cannot be found 3. Two medical practitioners or a medical practitioner and a registered midwife must also consent to the termination www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 10

Termination without consent of spouse/guardian/curator personae: prior to 21 st week of gestation 1. Pregnancy may be terminated without consent of spouse/guardian/curator personae if two medical practitioners or a medical practitioner and a registered midwife are of the opinion that a. The continued pregnancy would pose a risk of injury to the woman’s physical or mental health b. There is a substantial risk that the foetus would suffer from a severe physical or mental abnormality Termination without consent of spouse/guardian/curator personae: from 21 st week of gestation onwards 1. Pregnancy may be terminated without consent of spouse/guardian/curator personae if two medical practitioners or a medical practitioner and a registered midwife are of the opinion that the pregnancy would a. Endanger the woman’s life b. Result in a sever malformation of the foetus c. Pose a risk of injury to the foetus Sterilization 1. The Sterilization act 44 of 1998 permits the voluntary sterilization of anyone over the age of 18 years who is able of consenting. 2. Applies regardless whether or not the person is married 3. Person must give free and voluntary consent without inducement 4. Before consenting, the person must be a. given a clear explanation and adequate of the proposed plan of sterilization procedure b. told of the consequences, risks, reversible/irreversible nature of the procedure c. advised that consent may be withdrawn any time before the sterilization takes place 5. After (4), consent must be given on a particular prescribed form 6. Person under 18 will only be sterilized if failure to perform the sterilization would jeopardize his life or seriously impair his physical health 7. When sterilizing, the method posing the smallest amount of risk to the patient’s health must be used. Sterilizing mentally disabled people 1. For persons with severe mental disability, sterilization may be performed with the consent of person’s parent, spouse, guardian or curator. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 11

2. 3.

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Desirability of sterilization must be evaluated by a panel consisting of a psychiatrist/medical doctor, psychologist/social worker and a nurse The panel must take all relevant facts into account, including that the person has reached the age of 18 and that there is no other safe and effective method of contraception If the person is incapable of consenting or incompetent due to severe mental disability, the sterilization may only be performed if the panel concurs that the sterilization may be performed and if the person is incapable of a. Making his own decision about contraception or sterilization b. Developing mentally to a sufficient degree to make an informed decision about contraception or sterilization c. Fulfilling the parental responsibilities associated with giving birth

Is the nasciturus a legal subject? Nasciturus Rule Van der Vyver, Joubert and Van der Merwe maintain that the protection afforded to the foetus is based on the nasciturus rule and not a fiction: 1. Whenever a situation arises where it would have been to the advantage of the nasciturus had he already been born, all rights conferred on people are also conferred on the foetus 2. Thus follows that the foetus is a legal subject from the date of conception whenever his interests are at issue 3. Thus legal personality sometimes begins at birth and sometimes at conception Nasciturus Fiction Cronje & Heaton and Jordaan & Davel favour the nasciturus fiction: 1. Nasciturus is regarded as having been born at the time of conception if a situation arises where it will be to the foetus’s advantage had it already been born. 2. Not the protection of the “rights” of the nasciturus that is involved, but the protection of the rights of the child that will be born later 3. Thus the qualification that the nasciturus is regarded as having been born only if a living child is indeed born 4. If the child is not born alive, the protection falls away completely and it is as if there never was a nasciturus 5. Thus the interests of the as yet unborn child are kept open until he is actually born. 6. Accordingly, legal personality only begins at birth

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The end of legal personality Legal personality is terminated by death: thus dead people have no rights or obligations. The dead person’s assets are protected to protect the interests of creditors & heirs. It is not clear what criteria are applied in determining when a person is legally dead: 1. Courts rely exclusively on medical evidence to establish a. whether someone is dead b. the moment of death 2. In the past: death = absence of natural heart and lung activity 3. Today: death = a process which sometimes extends over a period of time and involves cessation of natural heart, lung and brain activity 4. Medical experts suggest that brain death should be legally accepted as death 5. Human Tissue Act 65 of 1983 governs anatomical donations after death but does not specify criteria for determining when death takes place a. Provides that 2 doctors who have been in practice for at least 5 years must certify that the donor is dead b. 2 doctors may not be part of the transplant team c. Act thus places determination of death completely in the hands of the medical profession Proof of death Required for 2 reasons: 1. Once death is proved the deceased’s estate can be administered and distributed 2. The surviving spouse can remarry Death is proved by means of a death certificate signed by a medical practitioner or magistrate. After death has been registered, Director-General of Home Affairs issues an official death certificate which is prima facie proof of the death of the person mentioned in the certificate. Presumption of Death Common Law procedure If a person disappears and could be dead a presumption of death can be pronounced under the common law or, in some instances, in terms of statute. Procedure to get a missing person pronounced dead 1. Any interested party can ask the high court where the person had his domicile to grant a presumption of death 2. Case is brought by way of an application 3. All relevant facts and circumstances must be brought to the attention of the court www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 13

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Applicant must prove on a preponderance of probabilities that the missing person is dead

Factors and circumstances taken into account 1. Initially based on English law where presumption was granted after 7 years 2. Was later superseded by the rule that no fixed period of time is required (see Beaglehole) 3. Factors and circumstances taken into account to prove probability of death: a. Length of time person has been missing b. The age of the person when presumed dead c. The person’s position in life d. The trade or occupation of the person e. The age of the person when the application is brought forward f. The person’s state of health at the time of the disappearance g. Whether or not the person manifested suicidal inclinations Procedure followed by our courts to issue presumption 1. After the hearing, the court sets a return date on which the final order will be made 2. Applicant must then a. give notice of rule nisi to interested parties indicated by the court b. publish the rule nisi in the Government Gazette c. publish the rule nisi in a newspaper in circulation in the area where the missing person used to live Statutory procedure There are 2 ways in which someone can be declared dead by statute: Inquests Act 58 of 1959 Section 5(2) of the Inquests Act 58 of 1959 says that: 1. If a magistrate is of the opinion that a death was not of natural causes, he must make sure that an inquest into the circumstances and cause of the death is held by a judicial officer 2. If the corpse is available, the district surgeon must examine it to determine cause of death 3. If the body cannot be found or has been destroyed and all the evidence proves beyond a reasonable doubt that the person is dead, the judicial officer must record his findings in respect of: a. The deceased person’s identity b. The cause or likely cause of death www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 14

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c. The date of death d. Whether the death was caused by an offence If the judicial officer cannot find any of the above, the fact must be recorded If a magistrate has recorded findings regarding the deceased person’s identity and date of death, these must be submitted at the inquest for review by the high court having jurisdiction in the area where the inquest was held If the high court confirms the findings the effect is the same as if it had made an order presuming the person’s death

Remarks re the Act In this act, the state takes the initiative because an unnatural death is suspected: thus not necessary for a private person to approach the court and ask for a presumption of death to be granted. According to the act, the judicial officer must prove beyond a reasonable doubt that the person is dead: this differs from the common law presumption which only has to prove death on a balance of probabilities. Thus it is more difficult to prove a death due to the heavier onus of proof and it would be easier to have someone presumed dead under the common law. Aviation Act 74 of 1962 Section 12(1) of the act says: 1. If an aircraft is involved in an accident in or above the Republic or its territorial waters, or any South African aircraft is involved in an accident anywhere, the Minister of Transport may appoint a board of enquiry to investigate the accident. 2. If there has been loss of life and a judicial officer is part of the board of enquiry a. the same procedure as followed under the Inquests Act must be followed b. the inquiry may be a joint inquiry by the board and an inquest under the Inquests Act 3. If it is not found beyond a reasonable doubt that someone died, interested parties may still approach the court for an order presuming the person’s death. The effect of an order of presumption of death Order presuming death is binding on the whole world. Only the high court of the area where the person was domiciled has jurisdiction to pronounce or set aside an order presuming death. Rebuttable presumption 1. A presumption of death is a rebuttable presumption re the death of a person. 2. The order can be set aside if it turns out that the person might be/is alive 3. Application can be brought by any interested party or the person himself www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 15

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If this happens, the formerly missing person may a. approach the court for an order that the estate not be further divided b. ask for an order setting aside the presumption of death c. get all their stuff back from people who have received benefits d. sue people under the condictio indebiti if they don’t want to give his stuff back

Estate 1. 2.

The estate of the person can be administered and divided amongst his heirs Courts may require heirs to furnish security if the missing person should appear

Dissolution of marriage 1. Order presuming someone’s death does not automatically dissolve marriage 2. Dissolution of Marriages on Presumption of Death Act 23 of 1979 regulates the position: a. If a person has been presumed dead, the court may make an order that the marriage is deemed dissolved by death on a date determined by the court. b. The court will not dissolve a marriage on its own initiative: the application must be brought by the spouse c. Result of the order is that the marriage is dissolved as if by death of one of the spouses d. If an inquest was held under the Inquests Act and a presumption of death was given, the marriage is automatically dissolved and no application needs to be brought by the spouse Refusal by court to issue presumption of death 1. Court may refuse to order presumption of death, but may still divide person’s belongings between his heirs provided they give security should the person come back. 2. Court may also refuse to order presumption of death but may appoint a curator bonis to administer his affairs. Presumptions regarding sequence of death If people die together (commorientes), the courts may need to determine who died first to see who inherited from whom Law today is: 1. If the sequence cannot be proved on a balance of probabilities, no presumption of survival or simultaneous death will be made 2. Unless there is evidence to the contrary, however, court will find that all commorientes died together www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 16

Registrations of death Births and Deaths Registration Act 51 of 1992 requires every death to be reported to the Director General of Home Affairs. Applies to: 1. Deaths due to natural causes 2. Deaths due to unnatural causes 3. Stillbirths Giving notice 1. If someone died of natural causes, anyone who was present at the death or became aware of it or the person in charge of the funeral must notify the Director General 2. Notice is given by means of a medical certificate issued by the medical practitioner who attended to the deceased or attended the corpse or by means of prescribed notice 3. If someone died of unnatural causes, a certificate may not be issued and the matter must be reported to the police whereupon an inquest will be held under the Inquests Act 4. For a stillbirth, the medical practitioner present at the birth or who examined the corpse must notify the Director General 5. If no doctor was present at the stillbirth, the duty falls on anyone who was present 6. As soon as the death has been registered, the Director General will issue an official death certificate Duty to bury the deceased 1. No one may be buried or cremated before a burial order has been issued in terms of the Births and Deaths Registration Act: burial order is issued only once the prescribed notice of death/stillbirth has been given. 2. Written instructions by the deceased must be followed as far as possible. 3. In the case of verbal instructions, there must be clear proof of those instructions, especially if they contradict the written instructions. 4. If there are no instructions, the deceased’s heirs have the right and duty to determine the corpse’s fate. Status Status is derived from Latin stare (stand): thus status is concerned with a person’s standing in the law. Standing is determined by various attributes of a person or the condition in which he finds himself and to which the law attaches consequences, i.e.: 1. Domicile 2. Extra-marital birth www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 17

3. 4. 5. 6. 7. 8.

Youth Physical illness or incapacity Mental illness or incapacity Intoxication Prodigality Insolvency

A legal subject has several capacities which flow directly from the law and are influenced by the factors previously listed: 1. Legal capacity 2. Capacity to act 3. Capacity to litigate (locus standi in iudicio) 4. Capacity to be held accountable for crimes and delicts Only the high court is competent to give judgements regarding status. Legal capacity 1. Legal capacity is the capacity to have rights and duties. 2. All humans have this capacity irrespective of personal qualities 3. All legal subjects have legal capacity, but legal capacity does not extend equally far for everyone, i.e. a child cannot marry a. Certain legal subjects cannot have certain rights or duties at all b. Certain legal subjects cannot have certain rights or duties at a specific time c. Thus legal capacity can be limited from person to person but no legal subject will ever be entirely without legal capacity 4. Something that can never have rights or duties is not a legal subject but a legal object Capacity to act 1. Refers to the capacity to perform valid juristic acts. 2. Juristic act: an act to which the law attaches at least some of the consequences desired by the party performing the act 3. Children under 7 and mentally ill people have no capacity to act: law does not attach any validity to their expression of will 4. People between the ages of 7 and 21 have limited capacity to act: the law attached expression of will to certain acts but not to others Capacity to litigate Refers to the capacity to appear in court as party to a lawsuit Usually a close correlation between capacity to act and capacity to litigate. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 18

Some authors maintain that, because someone else can litigate on behalf of infantes and mentally ill people, these people do in fact have capacity to litigate: Cronje & Heaton do not support this. Capacity to be held accountable for crimes and delicts Refers to accountability: capacity to be held liable for crimes and delicts. Often coincides with capacity to act and capacity to litigate. To a large extent influenced by a person’s age and mental condition because intent (dolus) or negligence (culpa) is a requirement for criminal and delictual liability: mentally ill people or people that are very young cannot have criminal capacity. Domicile Domicile is used to determine which legal system is applicable to specific people when determining their status. Definition of domicile Domicile is: 1. the place where a person is deemed to be constantly present 2. for the purpose of exercising his or her rights 3. and fulfilling his or her obligations 4. even in the event of his or her factual absence To acquire domicile in the legal sense, one must have the intention of settling at a particular place for an indefinite period. Importance of domicile Domicile is important in many fields of private law. Examples: 1. Whether or not a child is legitimate or extra-marital is determined by the law of the child’s domicile of origin 2. Law of succession: if someone dies intestate, law of the country of domicile determines how movable property should devolve 3. Relevant when determining whether someone has the capacity to inherit 4. Determines what the matrimonial property regime of a marriage will be 5. Determines which division of the high court has jurisdiction in some matters: thus sometimes plays a role in law of procedure 6. A factor in determining international jurisdiction of a foreign court in order to recognise and enforce an order of such a court www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 19

General principled governing domicile Principles are governed by the Domicile Act 3 of 1992. Act is not retrospective: thus any right, capacity, obligation or liability which was acquired, accrued or incurred by virtue of the domicile a person had at any time prior to the date on which it came into operation, is not affected. 1. Every person must have a domicile at all times due to a person's status being largely dependent on his or her domicile in our law. The law therefore cannot allow a person to be without a domicile at any time. 2. The changing of a person's domicile is never accepted without proof. If it is proved that a person has established a domicile at a specific place, it is accepted that he retains that domicile until the contrary has been proved. The matter is determined on a balance of probabilities. 3. No one can have a domicile in more than one place at the same time. Some common law writers maintain that it is possible to have more than one domicile, but most modern authors submit that it is not possible. Kinds of domicile Domicile of origin Refers to the domicile the law assigns to a person at birth. Prior to the Domicile Act a person’s domicile of origin revived if he abandoned his domicile of choice without assuming a new domicile. Domicile Act, however, provides that no one loses their domicile until they acquire a new domicile and specifically provides that the domicile of origin does not revive. Thus, because of the Domicile Act, domicile of origin has lost its significance: it is merely the first domicile assigned to a person by operation of law. Domicile of choice Section 1(1) of the Domicile Act provides that anyone 1. regardless of sex or marital status 2. over the age of 18 or under the age of 18 who legally has the status of a major 3. who does not lack mental capacity to make a rational choice is competent to acquire a domicile of their choice Prior to the act, a wife followed the domicile of her husband: was called domicile of dependence. Requirements for acquiring a domicile of choice To acquire a domicile of choice, the person concerned must: www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 20

1.

Settle at the particular place (factum requirement) have the intention of residing permanently at the place (animus requirement) The 2 requirement must at some time or another exists simultaneously but need not come into being simultaneously. 2.

Factum Requirement 1. Determining whether a person’s residence meets the factum requirement is done objectively. 2. No specific period of physical residence is required, but the person must not just be visiting the place 3. Courts sometimes take into consideration the duration of the physical presence of a person when determining intention of remaining there. 4. Once domicile of choice has been established, the person’s continued presence is not required. Domicile Act recognizes only lawful presence for purposes of acquiring domicile of choice. Thus: 1. Illegal immigrants cannot acquire domicile 2. Deported people lose their domicile, because their return would be unlawful 3. Fugitives do not lose their domicile at the place from which they fled. a. Reason for this: preclude fugitive from relying on the fact that court does not have jurisdiction in area that he fled to Animus Requirement 1. Determining whether person had intention (Animus) of staying somewhere is subjective. 2. Person acquires a domicile of choice at a particular place when they have the intention of staying there “for an indefinite period”. a. Thus the requirement can still be satisfied even if the person envisages moving at an unknown future date 3. Person must be able to carry out the intention of settling at a particular place. a. Thus previously military staff, diplomats, public servants, employees of foreign governments or businesses and prisoners were thought to not be able to decide where they were going to stay due to employers deciding where they would stay. b. According to Cronje & Heaton the mere fact that a person has been posted to, stationed or imprisoned at a specific place does not mean they do not have animus. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 21

Common law situation re military personnel, prisoners, etc From Baker v Baker it has been decided that military personnel could acquire domicile at the place they are stationed. From Naville v Naville it has been decided that diplomats, public servants and employees/officers of foreign governments or businesses could acquire domicile of choice in South Africa. From Nefler v Nefler it has been decided that prisoners who are imprisoned for life automatically acquire a domicile of choice in prison. Domicile by operation of law Section 2(1) of the Domicile Act provides that: Anyone that does not have the capacity to acquire a domicile of choice is domiciled at the place with which he is most closely connected People who cannot acquire domicile of choice: Children below 18 who have not attained majority status People who do not have the mental capacity to make a rational choice The law assigns a these people a place of domicile (the place with which they are most closely connected). Domicile of a child Section 2(1) applies. Section 2(2) contains the rebuttable presumption that if a child stays with his parents, his domicile is his parental home. Domicile is assigned only if person is under 18 and unmarried: when person reaches 18 or marries, he retains the domicile he had by operation of law until he establishes a new domicile. Parents of the child include: adoptive parents parents who are not married to each other: thus law does not distinguish between children born in/out of wedlock Domicile of a mentally incapacitated person Section 2(1) applies. Formerly: mentally incapacitated people retained the domicile they had before becoming incapacitated mentally capacitated people followed the domicile of their curator Extra-marital birth Legitimate child: www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 22

One who is born of parents who were legally married to each other at the time of the child’s conception or at any intervening time Illegitimate child: Parents were not married to each other at any of the above stages Categories of illegitimate children Natural Children (spurii or liberi naturales) Children born of parents who were not married but could have validly married Adulterine Children One or both of the child’s parents were married at the time of conception Incestuous Children (overwonnen kinderen or overwonnen bastaarden) Children born of parents who were too closely related to be able to marry Artificial fertilisation Children produced by artificial fertilisation of a woman with her husband’s semen are legitimate, irrespective if the husband consented to his semen being used. Children’s Status Act 82 of 1987, section 5(1) states that: A child born to spouses who consented to the use of another person’s gametes for purposes of artificial fertilisation is deemed legitimate. No right or obligations arise between the child and the gamete donor/donor’s relations, unless the donor is a woman who gave birth to the child, or the donor is the woman’s husband at the time of the artificial fertilisation Section 5 does not apply to married women who do not have their husband’s consent unmarried women, unless she is a life-partner in a same sex relationship (J v Director General, Department of Home Affairs: see Cases) Also extends to surrogate motherhood but is ill suited to deal with all the problems surrounding surrogacy. Surrogacy will be addressed in the SA Law Commission’s in its proposed Children’s Bill. Draft Children’s Bill states that: 1. A child who is born to a surrogate mother who entered into a valid surrogate motherhood agreement, becomes the child of the commissioning parents for all purposes from the moment of birth. 2. The surrogate mother and her husband or life partner and their relatives have no rights in respect of the child, although the parties may agree that they have access to the child www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 23

3. 4. 5.

The child has no rights of inheritance or maintenance against the surrogate mother, her husband or life partner, or their relatives If the surrogate agreement is terminated before the child’s birth, the child is the child of the surrogate mother and her husband or life partner as from the date of birth. If the agreement is terminated after the date of birth, the child becomes the child of the surrogate mother and her husband or life partner and the commissioning parents lose all rights in respect of the child.

Proof of parentage Presumption of Paternity Married persons If a child is born to a married woman it is presumed to be legitimate: thus it is rebuttably presumed that the woman’s husband is the father. Expressed in maxim: pater est quem nuptiae demonstrant (the marriage indicates who the father is) Courts are hesitant to declare children extra-marital (F v L, B v E) In cases where woman remarries soon after a divorce, the second husband is rebuttably presumed to be the father. Rebutting the presumption of paternity The presumption is rebuttable: The fact that the husband is not the child’s father must be proved on a balance of probabilities. The right to rebut the presumption of paternity does not lapse in the course of time. Any interested party can rebut the presumption, not just the child’s mother or husband Paramount considerations should be the child’s interests Unmarried persons Section 1 of the Children’s Status Act of 1987 says: A man is presumed to be the father of an extra-marital child only if it is proved by way of judicial admission or otherwise that he had sexual intercourse with the child’s mother at a time when the child could have been conceived. Presumption is rebuttable. Once the presumption operates, the onus is on the man to prove on a balance of probabilities that he cannot possibly be the father of the child: insufficient to prove that he probably isn’t the father.

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Corroboration of the mother’s evidence Formerly: courts did not accept mother’s corroboration without evidence: rejected in Mayer v Williams. In Mayer v Williams JA Trengove decided that: The court should use the cautionary rule used in criminal proceedings when using the women’s testimony with regard to the paternity of the child Cautionary rule requires the court to recognize: The danger of relying upon a complainant’s evidence in respect of a sexual offence The need for some safeguard reducing the risk of a wrong conviction Safeguard may be found in: Corroboration the absence of contradictory evidence, or the untruthfulness of the accused as a witness Thus, court does not always require corroboration, but corroboration may serve as a safeguard However, Mayer v Williams, will probably not be used due to the rejection of the cautionary rule in S v J. Rebuttal of the presumption/allegation of paternity Absence of sexual intercourse If it can be proved that the man did not have sexual intercourse with the child’s mother at any time when the child could have been conceived the presumption/allegation is refuted The gestation period Roman & Dutch law accepted that a child born between 180 to 300 days after conclusion of a marriage was conceived during the marriage. In our law there is no fixed gestation period: courts make a decision on an ad hoc basis. Courts rely on: Medical evidence as to when conception could possibly have taken place The “normal” period of gestation:+- 270 to 280 days Sterility Allegation/presumption is refuted if it can be proved that the man is sterile.

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The exceptio plurium concubentium If a man has sex with a woman during the time that a child could have been conceived, but the woman also had sex with another man, the defence is called the exceptio plurium concubentium. The problem arises as to who is the father of the child. Solutions to the problem: All the men involved could simply be absolved would be sexist, unfair, reflect a view not in keeping with modern-day notions of morality and not be in the best interest of the child All the men could be held liable would be unfair to the men and open to abuse as it would be to the benefit of the woman to name as many men as possible in order for her to get maintenance from at least some of them The man named by the mother can be held liable unless he can prove that he cannot be the father, i.e. due to sterility seems to be generally accepted in our law today, thus the exceptio plurium concubentium is not in use today as a rebuttal of the presumption of paternity and it would not help the man to prove that the woman had sexual relations with other men Problems obviously arise with this approach as a man who is not the father could be named by the mother. Cronje & Heaton allege that the mother’s right to choose the father should be reconsidered due to: Availability of sophisticated blood and tissue tests Violation of the father’s right to equality before the law and equal protection and benefit of the law due to the mother’s right to choose Physical features He fact that the physical features of the child do or do not resemble those of the alleged father do not have much weight, but can be considered in conjunction with other factors which prove or disprove paternity. Contraception Proof that contraceptives were used during sexual intercourse does not refute the presumption of paternity. Blood and tissue tests I’m too tired to do this. Just study the cases. May a court compel a child and an adult to undergo blood tests in order to determine paternity? www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 26

Case

OvO Seetal Pravitha MvR SvL Nell v Nell

Child May

May Not

Not Decided

Adult May

● v ●

May Not

Not Decided

● ●

●

● ● ●

● ●

The status and legitimation of extra-marital children The status of the extra-marital child Parental authority of the mother 1. If a child is extra-marital, only the mother has guardianship and custody. 2. If the unmarried mother is herself a minor, she has custody but guardianship is vested in the mother’s guardian, unless a court directs otherwise 3. If the unmarried mother is a minor but has acquired the status of a major by marrying or by obtaining a declaration of majority, she has custody and guardianship 4. The unmarried mother becomes the guardian of the child when she turns 21. 5. If an extra-marital mother marries someone other than the child’s father, she remains the child’s only guardian 6. An extra-marital child is registered under his mother’s surname, but the father may consent to his surname being used. 7. A child’s domicile is determined by the place with which he is most closely connected and not by his mother/father’s domicile. 8. Acts performed while the person thinks that they are the child’s natural guardian may be ratified by the court if they were performed in the child’s interest. Parental authority of the father 1. The court has the power to award custody and guardianship of an extra-marital child to the father if it is the child’s best interests. 2. The court would rather give guardianship of the child to the father than to another person due to his genetic relationship with the child. 3. Depending on whether it is in the child’s best interests, custody can be given to the father and the child removed from the mother.

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Natural Fathers of Children Born out of Wedlock Act 86 of 1997 Under the Act, the court has statutory power to award custody and/or guardianship to the father of an extra-marital child. The Act does not automatically afford the father any right in respect of the child but provides that the court may, on application by the father, grant him custody and/or guardianship and/or access if it is in the best interest of the child. The court takes the following into consideration when considering the father’s application: 1. The relationship between the father and the child’s mother, particularly whether either has a history of violence against or abuse of each other or the child 2. The child’s relationship with both parents 3. The effect that separating the child from his mother, father, proposed adoptive parents or any other person is likely to have on the child 4. The child’s attitude in relation to granting the application 5. The degree of commitment the father has shown towards the child, i.e. whether he paid for the birth, has paid maintenance from date of birth and has paid maintenance regularly. 6. Whether the child was born of a marriage concluded under a system of religious law 7. Any other fact that should, in the opinion of the court, be taken into account The court may grant sole guardianship or custody of the child to either parent if, in the court’s opinion, it is in the child’s best interests. The court may also order that, on the death of the parent to whom sole custody/guardianship was granted, a person other than the surviving parent will be the child’s guardian or custodian. Under Section 3 of the Act: 1. the family advocate must furnish the court with a report and recommendations regarding the welfare of the child before the court can consider the application 2. the court may cause any investigation it deems necessary and order anyone to appear before it 3. the court may appoint a legal representative to represent the child and may order the parties to pay the costs of any investigation, appearance or representation orders Access Most courts hold that the father does not automatically have the right of access to the child, even if he and the mother were living together at the time of the child’s birth: This is due to the fact that access is a component of parental authority and common law provides that the father does not have parental authority. Paying maintenance for the child does not afford the father right of access (B v S) If it is in the best interests of the child, access will be granted to the father(B v S & B v P) www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 28

In Van Erk v Holmer J Van Zyl went against B v P (full bench decision of the Transvaal Provincial Decision of the high court) and said that: 1. The old authorities were silent on the matter and that there was no precedent, legislation or custom 2. The child’s interests demanded that no distinction be drawn between legitimate and extra-marital children 3. That expecting the father to pay maintenance but denying him access was grossly unfair 4. Access to a child should not be regarded as an incident of parental authority Van Erk V Holmer was rejected by J Fleming in S v S and by JA Howie in B v S.. Re Van Erk v Holmer J Fleming said in S v S that: 1. J Van Zyl should have followed B v P due to stare decisis. 2. Opined that there were precedents upon which J Van Zyl should have based his decision 3. The fact that no old authorities gave a father right of access is a strong indication that no such right exists. 4. Public policy does not demand that an inherent right of access be granted to the father Re Van Erk v Holmer JA Howie said in B v S that: 1. J Van Zyl’s judgment was obiter 2. A father’s right of access depends on paternal authority and as a father of an extramarital child does not have that, there is no inherent right of access 3. If it is in the child’s best interests, the father may be granted access 4. That if the court was to grant access, the father had to, inter alia, inform the court of the degree of commitment shown towards the child, the degree of attachment between him and the child and the reasons for applying for the order. Adoption Section 18(4)(d) of the Child Care Act 74 of 1983, which required only the consent of the mother for the adoption of an extra-marital child, was declared unconstitutional in Fraser v Children’s Court, Pretoria North due to the fact that the section: 1. discriminated unfairly against fathers in some matrimonial unions 2. infringed the right to equality The court also said that section 18(4)(d) discriminated unfairly on the ground of gender because the consent of a mother was always needed but the consent of a father of an extra-marital child was never needed. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 29

Adoption Matters Amendment Act 56 of 1998 Parliament corrected the defect in the provision by enacting the Adoption Matters Amendment Act 56 of 1998 which amended Section 18(4)(d) of the Child Care Act to require: 1. The consent of both parents if paternity has been acknowledged by the father and the father’s identity and whereabouts are known 2. If only 1 parent has consented to the adoption, a notice must be served on the other parent, giving the parent the opportunity to: a. also give or withhold consent b. advance reasons why his/her consent should not be dispensed with c. in the case of the father, apply for adoption of the child 3. The notice need not be served if the whereabouts of the parent is not known 4. The notice need only be server on the father of a child born out of wedlock if: a. He has acknowledged paternity in writing; has entered his particulars in the child’s birth registration and has ensured that those particulars are correct at all times b. The child’s mother at the time of consenting to the child’s adoption confirms in writing that the child’s father has acknowledged paternity and furnishes particulars regarding his identity and whereabouts c. A social worker, within 60 days of the mother having consented or at any stage before the adoption order is granted, submits a report confirming the father’s identity and whereabouts Child Care Amendment Act 96 of 1996 Section 27 of the Child Care Act did not deem certain types of marriages valid. Thus the father’s consent was not needed for purposes of adoption. Section 10 of the Child Care Amendment Act 96 of 1996 repealed section 27 of the Child Care Act which discriminated against fathers in polygynous marriages. Thus for the purposes of the Child Care Act, children born from marriages “concluded in accordance with a system of religious law subject to specific procedures” are not extra-marital. Dispensing with parental consent Section 19 of the Child Care Act stipulates when the consent of the father can be dispensed with when putting a child up for adoption: 1. The father has failed to acknowledge paternity 2. The child was conceived as a result of incest 3. The father was convicted of rape or assault on the child’s mother 4. The father was, after an enquiry by the children’s court following an allegation by the mother, found, on a balance of probabilities, to have raped or assaulted the child’s mother. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 30

5. The father failed to respond to a notice in terms of section 19A of the Child Care Act Consent of either parent can be dispensed with if he or she, without good cause, failed to discharge his or her parental duties with regard to the child.

Maintenance Both parents have a duty to support their extra-marital child. The duty is apportioned between them in accordance with their respective means. Parents’ right to maintenance from extra-marital child From common law it is clear that extra-marital child must support his mother and her relations. Some authors maintain that the father may not claim maintenance from the extra-marital child due to the fact that the father is not related to the child. This is not so: the father does not have parental authority but is related. Maintenance on the death of the parent(s) If either parent dies, the parent’s estate is responsible for the child’s maintenance. According to Motan v Joosub, if neither parent nor the parent’s estate can support the child, the duty passes to the child’s maternal grandparents. This above case: 1. Is unfair, unacceptable and in conflict with common law and public policy. 2. Furthermore, the distinction between the duty of support in respect of legitimate and extra-marital children violates the extra-marital child’s right to equality before the law and equal protection and benefit of the law. 3. Constitutes unfair discrimination on the ground of birth 4. Conflicts with the provision of the children’s rights clause which makes the child’s best interests paramount concern in all matters relating to the child. In accordance with Motan v Joosub it is also argued that extra-marital children have a duty to support their maternal grandparents but not their paternal grandparents. This is unconstitutional on the ground that it violates the right to equality before the law and equal protection and benefit of the law. Right to Inherit Intestate succession In terms of section 1(2) of the Intestate Succession Act 81 of 1987 extra-marital birth does not affect the capacity of one blood relation to inherit the intestate estate of another. Thus: extra-marital children can inherit from both parents and both parents can inherit from intestate from an extra-marital child. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 31

Thus: no distinction drawn between legitimate and extra-marital children Testate succession People can benefit whoever they want in their wills: thus whoever a parent chooses (legitimate or extra-marital) can inherit testate. The position of incestuous children is less clear but the authors submit that they should be able to inherit testate from both mother and father as children should not be punished for the sins of their parents. According to section 2D(1)(b) of the Wills Act 7 of 1953 extra-marital birth “shall be ignored” when determining a person’s relationship to the testator, i.e. “my children” would exclude extra-marital children. Extra Marital Birth and the Constitution Regarding discrimination in access to the extra-marital child by the father, the appellate division concluded that the father is not unfairly discriminated against (B v S and T v M). The question regarding access is always decided on the basis of what is in the best interests of the child. If the mother refuses the father of an legitimate child access, he has to approach the court. According to the Natural Fathers of Children Born out of Wedlock Act, a father may approach the court for an order granting him rights if it is in the best interests of the child. The present legal position is open to criticism because: 1. The child’s best interest are not necessarily served by separate rules in respect of parental authority over legitimate and extra-marital children. 2. If we were to comply with the “best interests” directive, the marital status of the child has to be irrelevant. 3. The differentiation between the child’s parents amounts to unfair discrimination against the child on the ground of social origin and birth. 4. The law decided is advance that the child is not entitled to a legal relationship with both parents which infringes on the child’s right to paternal (not just maternal) care. From the view of the parents, thus, the position amounts to inequality before the law as well as unfair discrimination on the ground of marital status, sex and gender: Discrimination Some authors argue that mothers are the primary caretakers and that primary responsibility for child care justifies exclusion of the father’s automatic rights as this conforms to the notion of substantive/real equality. Problem with above statement is that: www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 32

1. 2.

Sends the message that fathers should not concern themselves with childcare as it isn’t their job and/or they are incapable or unsuited to it Does not give proper effect to the child’s constitutional right to parental care and is not in the best interests of the child

The Children’s Draft Bill will confer automatic parental responsibilities and rights on some categories of fathers of extra-marital children. From the mother’s viewpoint There is discriminated: 1. On the ground of marital status: She has sole parental responsibility instead of shared responsibility. 2. On the ground of sex/gender: the law automatically imposes sole child care responsibilities on her. From the father’s viewpoint There is discriminated: 1. On the ground of marital status: he has to approach the court to have rights in respect of the child, whereas a married man automatically has those rights. 2. On the ground of sex/gender: the law favours mothers instead of fathers because a mother automatically has parental authority and the father not. The legitimation of extra-marital children In terms of section 4 of the Children’s Status Act 82 of 1987 a child is legitimized in all respects of his parents marry each other at any stage after his birth. This applies even if the parents could not legally marry each other at the time of his birth. Section 4 does not retroactively confer rights on the child after the marriage of his parents: thus he is only legitimated from the date of his parents’ marriage. The above is, however, in conflict with the Births and Deaths Registration Act 51 of 1992 which provides for the legitimation of children after birth by saying that “as if such a child’s parents were legally married to each other at the time of birth.” An incestuous child can be legitimized if laws regarding forbidden degrees of relationship change, i.e. the Marriage Act 25 of 1961 made it possible for a widow to marry her dead husband brother, something which was previously prohibited. Legitimation by an order of the authorities (legitimatio per rescriptum principis) In common law the Sovereign could legitimate a child as a favour if one of the parents died before a marriage could be concluded. In Potgieter v Bellingan it was held that the above method of legitimation was obsolete. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 33

The court cannot declare an illegitimate child legitimate: it can only declare a child of a putative marriage legitimate, but then simply confirms an existing fact since the children born of a putative marriage are in any event legal. Legitimation by adoption A child can be legitimated by adoption . The child becomes the legitimate child of the adoptive parent, regardless of whether or not the parent is married. Thus if the father of an illegitimate child adopts it, it becomes legitimate. Minority Is one of the most important factors influencing a person’s status. Only persons with a reasonable understanding and judgment (the ability to understand the nature, purport and consequences of one’s acts) have the capacity to act. Youth has a major influence on a person’s power of judgement: thus the law protects young people by limiting their capacity to participate in legal interaction. From a legal viewpoint, a young person has neither the intellectual ability nor the experience to participate independently in legal and commercial dealings before the age of 21. Because the object of the restrictions on minors’ capacity is to protect them, the restrictions do not violate the constitutional right to equality, nor do they amount to discrimination on the ground of age. Children’s Rights Section 28 of the Constitution Children below the age of 18 are afforded special protection by section 28 of the Constitution. The purpose of Section 28 is to protect children, not their parents. Section 28 gives every child the right 1. To a name and nationality from birth 2. To family or paternal care, or appropriate alternative care when removed from the family environment 3. To basic nutrition, shelter, basic health care and social services 4. To be protected from maltreatment, neglect, abuse and degradation 5. To be protected from exploitative labour practices 6. Not to be required or permitted to perform work or provide services that are inappropriate for someone of his age, or place his well-being, education, physical or mental health, or spiritual, moral or social development at risk. 7. Not to be detained except as a measure of last resort. If detained, the child must be kept separate from people over the age of 18. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 34

8. 9.

To have a legal practitioner assigned to him by the state in civil proceedings, at state expense, if substantial injustice would otherwise result Not to be used directly in armed conflict, and to be protected in times of armed conflict

Section 28(2) prescribes: 1. A child’s best interests are of paramount importance in every matter concerning the child. 2. Previously the criterion of the best interests of the child was limited to family law proceedings, but 28(2) indicates that the criterion must be applied in all fields of law. 3. Also submitted that: child’s best interests must outweigh other constitutional rights unless the infringements on the child’s best interests can be justified in terms of the general limitations clause in the Constitution Our courts also hold that the child’s rights to paternal or family care must be taken into account when sentencing a convicted parent and detaining a parent pending deportation from the country. Subsection (b) and (c) of section 28(1) Subsection (b) defines those responsible for giving care (mainly parents). Subsection (c) lists “various aspects of the care entitlement”, i.e. the state affording families access to land, housing, health care, food, water and social security. Most of the cases dealing with section 28(1) deal with the rights contained in subsections (b) and (c). The constitutional court’s attitude with regards to the rights contained in these subsections is as follows: 1. The duty they impose rests primarily on parents and family members 2. The duty passes to the state only if the child’s parents or family members fail or are unable to provide care to the child 3. The state must, however, create the necessary environment for parents and family members to provide children with proper care. According to Government of the Republic of South Africa v Grootboom subsection (b) and (c) need to be read together. The content of the child’s right to receive care is therefore partly determined by the socio-economic rights mentioned in subsection (c). Grootboom also mentions that the child’s rights in terms of (c) must be ascertained in the context of the socio-economic rights in sections 25(5), 26 and 27 of the Constitution. 25(5), 26 and 27 oblige the state to make available adequate housing, healthcare services, food and water and social security. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 35

There is thus an overlap between the child’s rights as in 28(1)(c) and 25(5), 26 & 27: the court held that this overlap does not create separate and independent rights for children and does not entitle them to shelter on demand. United Nations Convention on the Rights of the Child Above has been ratified by South Africa and must thus comply with the obligation the convention imposes on the state. 1. The convention only confers special protection on children below 18 years 2. Convention inter alia stipulates that the best interests of the child should be “a primary” consideration in all actions concerning the child. 3. Children who are capable of forming their own views must be given the right to express those views freely in all matters that affect them. 4. Their views must be given due weight, taking their age and maturity into account 5. Convention obliges state parties to recognize the common responsibilities of parents for the upbringing and development of their children. The legal status of an infans An infans is a child below the age of 7. A minor is a child between the age of 7 and 21, but also denotes someone below the age of 21. Concepts  There is an agreement (afspraak) if there is consensus between two or more people, and all are aware of having reached consensus (conscious consent).  A contract (or obligatory agreement) is an agreement undertaken with the intention of creating an obligation or obligations.  Contractual liability means that the party or parties to the contract can be held legally liable for the fulfilment of the provisions of the contract.  An obligation is a juristic bond in terms of which the party or parties on the one side have a right to performance and the party or parties on the other side have a duty to render performance. Contracts, delicts and various other causes (e.g. undue enrichment) give rise to obligations.  Performance is human conduct which may consist of a commission or an omission.  A civil obligation is a legally enforceable obligation, while a natural obligation is unenforceable. These two concepts are explained in more detail in Cronje. & Heaton on 88. You should study this section.

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





A unilateral contract is a contract in terms of which only one of the parties undertakes to render some performance. An example of such a contract would be a contract of donation. Only the donor undertakes to render some performance. A multilateral contract is a contract in terms of which more than one party undertakes to render a performance. An example of such a contract would be a contract of loan. The lender undertakes to lend the borrower a certain amount and the borrower undertakes to repay the amount. A reciprocal contract is a special type of multilateral contract. It is a multilateral contract in terms of which performance is promised on the one side in exchange for performance on the other side. An example of such a contract is a contract of sale. Suppose Peter sells his bicycle to Chris for R200. Both Peter and Chris undertake to render some performance, and both are simultaneously creditor and debtor. Peter is debtor as regards the delivery of the bicycle and creditor as regards the payment of R200. Chris is debtor as regards the payment of R200 and creditor as regards the delivery of the bicycle

Capacity to act An infans cannot: 1. have any capacity to act and cannot conclude any juristic act. 2. enter into any agreement whatsoever, not even one that confers only rights and imposes no duties 3. act as somebody’s agent because the law attaches no consequences to his/her expression of will 4. conclude a juristic act even with the assistance of his guardian: his guardian has to act on his behalf 5. accept a donation: the court, the master or the guardian must accept the donation on the infans’ behalf, even if it is the infans’ parent or guardian: the parent or guardian has to accept the donation on the infans’ behalf and it must be made clear that the donation is being accepted on his behalf Even if there is agreement between an infans and another person the law ignores it. An infans’ act can however constitute a juristic act, giving rise to legal consequences, i.e. destroying another’s property Once a guardian enters into an agreement on the infans’ behalf it is on the infans that rights are conferred and duties imposed: the infans has legal capacity and can thus have rights, duties and capacities. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 37

Certain transactions, i.e. an engagement or an insurance contract on his life, cannot be concluded by the guardian on the infans’ behalf. Capacity to litigate An infans does not have locus standi in iudicio and cannot be a party to a lawsuit even if assisted by his guardian: the guardian must always litigate for and on behalf of him. Delictual and Criminal Liability Because an infans is completely unaccountable he can never be criminally or delictually liable where liability is based on fault. He may, however, be liable for delicts not based on fault. Thus an infans can: 1. be sued under actio de pauperie if he owns an animal and the animal causes damage 2. incur vicarious liability if his employee commits a delict in the execution of his/her duties 3. be held liable on the ground of undue enrichment or negotiorum gestio as these forms of liability are not based on capacity to act or capacity to incur delictual or criminal liability. The legal status of a minor Minors between the age of 7 and 18 have limited capacity to act. Capacity to enter into a contract The general rule is that a minor can only incur contractual liability if he is assisted by his guardian when a contract is made. The minor can, however, enter into a contract without the assistance of his guardian if the contract improves his position without imposing any duties on him. Entering into a contract without guardian’s consent Validity of the contract 1. If a minor enters a contract without his guardian’s consent and the contract imposes duties on the minor, he is not liable in contract. 2. The obligation created upon the minor is unenforceable (naturalis obligatio). 3. The agreement is however not void, as the other party must honour his part of the agreement (obligation on him is a civil one (civilis obligatio) which is enforceable). 4. Thus the contract created is only partially valid. Such a contract can be ratified by the guardian or by the minor himself when he attains majority. Ratification converts the natural obligation to a civil one which is then enforceable. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 38

Repudiation or honouring of the contract 1. It is up to the guardian (or the minor when attaining majority) to decide whether to honour or repudiate the contract: the other party must abide by this and still perform in terms of the contract. 2. Thus the other party cannot rely on the minor’s minority or on exceptio non adimpli contractus to avoid his own contractual obligations. 3. Normally, when sued, the minor raises his minority as defence 4. The minor may also take out an order declaring him not contractually liable 5. The minor cannot sue the other party for performance, as he would need his guardian’s consent to sue and such consent would amount to ratification of the minor’s contract. 6. If the minor has performed in terms of a contract and the contract is repudiated, he may recover what he has performed: property other than money is recovered by the rei vindicatio and money by a condictio. 7. As the contract cannot be enforced against the minor, he does not have to apply for restitutio in integrum. 8. Restitutio in integrum applies if the minor entered into a contract with assistance and the contract was to his detriment and he has performed in terms of the contract. The minor’s contractual capacity Assistance by the guardian The reason why a minor cannot enter into a contract without his guardian’s consent is to protect the minor against his own immaturity of judgment. This falls away when a guardian gives his consent and the minor is then liable ex contractu as if he were a major. The guardian’s consent can take many forms: 1. The guardian can act on the minor’s behalf 2. The minor can enter into the contract with his guardian’s consent 3. The guardian can ratify the agreement after it has been concluded 4. The guardian’s consent can be given expressly or tacitly: a. If the guardian raises no objection to a transaction, it can be accepted that tacit consent was given b. The guardian will also be taken to have ratified the contract if he allows the minor to sue the other party for performance in terms of the contract 5. Guardian’s consent may apply to a single transaction or several, i.e. if the guardian allows their child to conduct their own business 6. The guardian need not have knowledge of each and every term of the contract, but must be aware of its nature and essential terms 7. Consent obtained through fraud or undue influence is worthless www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 39

8.

The guardian is obliged to help the minor when entering into contracts that are to the minor’s advantage: a. If the guardian is unwilling or unable to do this, the court may order the guardian to do so or itself give the required consent b. The court will also intervene if a guardian’s own interests in a transaction conflict with the duty to further the minor’s interests or where the guardian’s consent is insufficient in itself 9. A guardian may not enter into a transaction on behalf of a minor that will come into operation only after the minor has attained majority. 10. A guardian may not conclude a contract on behalf of a minor in respect of agreements of a closely personal nature, i.e. antenuptial agreement. 11. A guardian who has consented to a transaction may withdraw consent prior to the transaction being concluded Liability of the Guardian A guardian does not incur personal liability in respect of the minor’s contract, regardless of whether he assisted the minor or acted on the minor’s behalf. A guardian can be held liable: 1. if the minor acted as his agent 2. if he guaranteed the minor’s performance and the minor does not perform 3. if he bound himself as surety for the minor’s performance and the minor does not perform 4. on the basis of negotiorum gestio if he is the child’s parent: the parent has a duty to maintain his children: if he does not perform his duty and it is performed by a third party, he can be held liable on the basis of negotiorum gestio. Here the guardian’s liability arises not contractually but quasi-contractually. Ratification A guardian my expressly or tacitly ratify a contract the minor initially concluded without the guardian’s consent. Ratification validates the contract with retroactive effect. A guardian cannot ratify a contract he did not initially have the power to conclude on behalf of a minor. The minor may also ratify a contract when he comes of age: the contract then becomes fully enforceable. Ratification by the minor can take place tacitly or expressly: when deciding if a minor tacitly ratified a contract, the court considers the minor’s acts and conduct and deduces from this whether or not the minor had the intention of ratifying the contract. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 40

If the above happens, and the minor does not know that he is acting as if he is tacitly approving a contract, the minor’s ratification would be rebutted if his ignorance is reasonable and excusable. See also Edelstein v Edelstein. Statutory exceptions regarding a minor’s capacity to act There are some exception created by statute which allows a minor incur contractual liability: 1. A minor of 18 years may without consent enter into, vary or deal with a life insurance policy and pay premiums due under the policy. Any money payable under the policy must be paid to the minor who can do with it as he wishes. 2. A minor over the age of 16 may be a member of or a depositor with a mutual bank unless the articles of the mutual bank provide otherwise. a. The minor may without assistance have full dealings with the bank and deal with his deposit as he sees fit. b. He has all the privileges and obligations of a normal member, except that he cannot hold office in the bank. 3. Deposits in the Postbank and national savings certificates in the name of a minor of any age may be repaid to him Minor’s contractual capacity: Misrepresentation (It must be noted that where a misrepresentation occurs when both parties are majors restitution could be permissible) If a minor misrepresented himself as a major, the general view is that the minor should be held liable. There is, however, no consensus on what the basis for this liability should be. There are 2 possibilities: 1. The minor can be held liable on the basis that the contract he concluded is enforceable, i.e. the minor can be held contractually liable 2. The minor can be held liable on the basis of the delict (or rather wrongful act) he committed, namely misrepresentation, i.e. the minor can be held delictually liable Contractual Liability Those who advocate contractual liability advance the following as reasons why: 1. Roman-Dutch writers expressly denied the restitutio ad integrum to a minor who misrepresented himself as a major. 2. As restitutio ad integrum presupposes a binding contract it is implied that there is a binding underlying contract. Cronje & Heaton do not support this: www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 41

1.

2. 3.

4.

Restitutio ad integrum’s proper application is for contracts the minor concluded with the necessary assistance and contracts the guardian concluded on the minor’s behalf where the contract is binding. Roman-Dutch practise, however, was also to apply for restitutio ad integrum in cases where a minor had entered into a contract without the necessary consent. Cronje & Heaton maintain that in these circumstances the minor was not liable at all and that there was no need to resort to restitutio ad integrum as the minor could have simply recovered the performance already rendered in terms of the unenforceable contract. Thus the invocation of restitutio ad integrum where it was not necessary does not mean that the minor is contractually liable for misrepresentation.

The second argument regarding why a minor should be held contractually liable for misrepresentation goes as follows: 1. The authors rely on estoppel 2. If the minor misrepresents himself as a major and another person enters into a contract on the basis of this misrepresentation, the minor cannot raise his minority as a defence. 3. Consequently the minor is held liable on the contract as if he was a major when the contact was concluded 4. The other party can then simply sue the minor and by means of estoppel frustrate any reliance of the minor on his minority as defence Cronje & Heaton do not support this: 1. Holding the minor liable would defeat the object of limiting a minor’s capacity to act 2. The fact that the minor acted fraudulently does not mean he has the necessary ability to judge and that the protection of the law is thus not needed. 3. In addition, holding the minor liable would mean that a minor could change their status and attain full capacity to act by committing a misrepresentation See also Louw v MJ & H Trust (Pty) Ltd. Delictual Liability Minors can be held liable on a delictual basis for misrepresenting themselves as majors. Claim of majority If a minor openly claims to be a major, he is definitely misrepresenting himself. The other contracting party does not need to enquire into the truth of the statement and he may accept the assertion unless he has good cause for believing that he is dealing with a minor.

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Tacit claim of majority Here the issue is whether the minor’s conduct amounts to misrepresentation. 1. If the minor knows the other party thinks he is a major and does nothing to remove the misconception, he commits a misrepresentation. 2. For the minor to be held liable he must be old enough to be mistaken for a major. Final word The minor will be held liable only if: 1. He made a misrepresentation regarding his or her majority or capacity to act 2. The other party suffered a loss. 3. The misrepresentation was the cause that induced the other party to enter into a contract with the minor. Minor’s contractual capacity: Undue enrichment Undue enrichment: Person A is unduly enriched at the at the cost of expense of person B if he or she (A) gains a patrimonial benefit at the expense of B without there being a recognised legal ground justifying the transfer of the benefit. Calculation of enrichment Must know well! The enrichment claim is limited to the lesser of: 1. The amount by which the enriched person’s estate remains enriched at the date of the institution of the action 2. The amount by which the other person’s estate remains impoverished by that date. Calculation: 1. The moment on which the calculation must be based is that moment when the other party institutes his or her claim. 2. The amount by which the minor's estate is increased owing to the performance of the other party must be calculated. Here we look only at price the actual value of the performance and ignore the contract price. 3. The amount by which the estate of the other party is decreased as a result of the performance must be calculated. Here again look only at the actual value of the performance and not at the contract price. 4. You can now determine two amounts. The minor is liable for the lesser of the two. 5. If the minor has lost the performance he or she received or its value has decreased, or if he or she has sold it, the following rules apply: www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 43

a. If the minor has lost the performance he or she received (or it has been stolen), the other party is not entitled to anything. b. If the value of the performance has decreased, the minor is liable only for the decreased value. c. If the minor sold the performance before the action was instituted, he or she remains liable for the purchase price received, depending on how he or she applied the proceeds thereof. d. If the proceeds are still in the minor's possession on the date of institution of the action, he or she is liable for as much of it as still remains at the time of institution of the action. e. If the minor has used the proceeds for necessaries, he or she is still liable for the purchase price of these necessaries, even if nothing remains of them. Necessaries include food, clothing, accommodation and medical treatment. The reason for the minor's liability in this case is that he or she would have had to purchase the necessary items out of his or her own estate in any case. Therefore, by saving on these expenses, the minor is unduly enriched at the expense of the other party. f. If the minor purchased luxury items with the proceeds, he or she is liable for the value of whatever still remains. Benefit Theory Benefit theory was introduced by Nel v Divine, Hall & Co. where it was held that if a contract as a whole is to a minor’s benefit, the minor is contractually liable. The courts applied this incorrect decision consistently until Edelstein v Edelstein authoritatively rejected it: In Edelstein v Edelstein it was held that a minor is not contractually liable whenever a contract is in a vague and general way to his advantage, but that he may be held liable ex lege for the amount by which his estate was unduly enriched by the transaction. Thus the benefit theory is no longer of application in today’s law. Minor’s contractual capacity: Restitutio in integrum Restitutio in integrum: is an extraordinary legal remedy whereby a minor can escape liability if 1. he contracted with the assistance of his guardian (or the guardian contracted on his behalf) and 2. the contract was prejudicial to the minor at the moment it was made. The purpose of the restitution is to restore the status quo ante: complete restitution from both sides must take place, putting the parties in the position they would have been had they never entered into the contract. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 44

Each party must: 1. Return everything received under the contract 2. The proceeds or any advantage derived from the contract 3. Compensate the other for any loss suffered as a result of the contract Restitution not only affords a cause of action, but can also be used as a defence when a minor is sued for performance in terms of a prejudicial contract. Restitution to a minor differs from other cases of restitution: If does not release a person who has bound himself as surety for the minor from his obligations, i.e. a parent would still have to meet the obligations he/she stood surety for. Restitutio in integrum prescribes at most three years after the date upon which the minor became a major, but cannot occur within the first year after the minor became a major. When can restitutio be used? Restitutio in integrum: 1. is only necessary if the minor is contractually liable. 2. is available even if the court consented to the minor’s contract, as the court could have been misled or erred. 3. can be applied for whenever a minor has suffered prejudice, i.e. not only for contracts When can restitutio not be used? Restitutio in integrum can not: 1. be relied upon to set aside a marriage or escape delictual or criminal liability 2. be used by a minor who misrepresented himself as a major or in some other fraudulent manner persuaded the other party to enter into a contract 3. be used if the prejudice arose at a later date 4. be used if, after attaining majority, the minor ratifies the contract Getting restitution 1. The minor may, with the assistance of his guardian, apply for restitution before attaining majority. 2. The guardian may also apply for restitution on the minor’s part. 3. If the guardian fails to assist, a curator ad litem may be appointed to assist the minor 4. The minor can wait to attain majority and institute the action himself

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Minor’s capacity in terms of other juristic acts Other agreements The minor can enter into other agreements which benefit him without his guardian’s assistance, i.e. the extinguishing of his debt to someone else, but may not enter into agreements that encumber him without his guardian’s assistance. If the minor performs without his guardian’s assistance, the performance is invalid and he can recover whatever he performed. If a minor entered into a contract with assistance, but performed without assistance, he may not recover his performance: as guardian consented to contract it is taken that he also consented to the minor’s fulfilling the contract by rendering performance. A real agreement by which a right is transferred to a minor is valid even if the minor acted without assistance. A minor cannot, however, transfer a real right to another person without the assistance of his guardian. Minor’s capacity to make and witness a will Any person over may from the age of 16 make a will and dispose of his property as he pleases. A witness to a will must be at least 14 years old. Capacity to marry Circumstances under which a minor may marry: 1. If both a legitimate minor’s parents are alive , the must both consent even if the are divorced, unless a. the court orders otherwise, or b. sole guardianship has been granted to one of his parents 2. If one of the parents is deceased, the surviving parent’s consent is sufficient 3. If the minor is extra-marital only the mother needs to consent, unless a. the father has obtained guardianship by a court order 4. An orphan for whom a guardian has been appointed must get the guardian’s consent 5. For a boy under 18 and a girl under 15 the consent of the Minister of Home Affairs in needed: children below the age of puberty cannot marry at all, thus the Minister’s power to consent is limited to girls between 12 and 15 and boys between 14 and 18. 6. If one or more of the minor’s parents is absent or incompetent to consent, consent may be granted by the commissioner of child welfare. a. The commissioner must also determine whether it is in the minor’s interest to enter into a prenuptial contract. b. If it is, the commissioner must ensure that this is done before consenting and assist the minor in its execution www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 46

7.

8.

9.

c. If the commissioner refuses his consent, the minor may approach the high court for consent. The minor may also approach the high court if his parents / guardian refuses consent. The court may grant consent if: a. it is of the opinion that the parent or guardian’s refusal is without adequate reason, and b. contrary to the interests of the minor If the court consents, it may also order that a particular matrimonial property system must apply in the marriage. If an antenuptial agreement must be entered into, the court can appoint a curator to assist the minor in this regard. A minor who has been married before or has been declared a major requires no consent

Effect of absence of consent to marry Section 24 of the Matrimonial Property Act 88 of 1984 Section 24 of the Matrimonial Property Act 88 of 1984 governs the patrimonial consequences of a marriage entered into by a minor without consent. Section 24(1) provides that if the marriage is dissolved due to lack of consent, the court may make any order regarding the matrimonial property as it sees fit. Section 24(2) provides that if the marriage is not dissolved, the patrimonial consequences are 1. the same as if the minor was of age when the marriage was entered into, and 2. any ante nuptial contract in terms of which the accrual system is included and which was executed with a view to the marriage, is deemed to be valid Lack of consent of Minister of Home Affairs 1. If the consent of the Minister of Home Affairs was needed but was not obtained, the marriages is null and void 2. The Minister may, however, declare the marriage valid ex post facto. Lack of consent of parent(s) 1. If the consent of the parent / guardian / commissioner of child welfare was needed but was not obtained, the marriage is voidable. It may be set aside by the court on application by: a. The parents or guardian before the minor attains majority and within six weeks from the date on which they became aware of the existence of the marriage, or b. The minor before attaining majority or within 3 months thereafter

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Capacity to consent to medical treatment and operations Over 14 years: minor may consent to any medical treatment of himself or his child. Over 18 years: may consent to an operation, including sterilization Pregnant of any age: may consent to termination of the pregnancy Capacity to hold offices and perform functions They Can’t Minor cannot be a director of: 1. a company 2. a mutual bank 3. a trustee of an insolvent estate 4. executor of a deceased estate (submitted by Cronje & Heaton: not decided) Emancipated minors can also not hold the above offices. Minors cannot be appointed as someone else’s guardian (they are obviously the guardian of their own children) They Can Minors declared majors under the Majority Act or minors who attain majority through marriage, however, can hold the above offices. A minor can act as someone else’s agent without the consent of his guardian: an agent does not bind himself but the principle Capacity to litigate A minor has limited capacity to litigate (locus standi in iudicio) in most private-law lawsuits. Thus: a minor himself can sue or be sued with his guardian's assistance, or his guardian can take up the case on his behalf. If the minor does not have a guardian, he or she must be assisted by a curator ad litem who is appointed on application by the court. Anyone who has an interest in this appointment, or a friend or a creditor of the minor, may make such an application. The minor himself or herself can make the application if old enough to be able to understand the procedure. Exception for private law proceedings: If the court grants a minor venia agendi the minor: 1. Has full capacity to litigate 2. Does not require assistance at the proceedings Exception does not apply to civil cases: minor requires the assistance of his guardian. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 48

In criminal proceedings the guardian’s assistance is not needed. Capacity to incur delictual and criminal liability To incur delictual or criminal liability, the minor must be accountable. To be accountable, a person must have the mental ability to: 1. distinguish right from wrong 2. act in accordance with such an appreciation Minors 7 - 14: Rebuttably presumed to be not accountable for their crimes and delicts Minors 14 – 21: Rebuttably presumed to be accountable for their crimes and delicts Termination of minority Attainment of the prescribed age Attainment of majority has been fixed by statute at the age of 21 years. SA Law Commission recommends lowering it to 18. Majority ensues at the beginning of the day of the person’s 21 st birthday, unless it is in the person’s interest that it be extended to the exact moment of his birth. Marriage A minor who enters into a valid marriage before his 21st birthday becomes a major. If the marriage is dissolved by death or divorce before the person’s 21 st birthday, minority does not revive. A void marriage does not terminate minority and the annulment of a voidable marriage restores a minor’s limited capacity with retrospective effect. Venia aetatis and release from tutelage It is submitted by Cronje & Heaton that the Age of Majority Act 57 of 1972’s declaration of a minor to be a major under the Act has replaced venia aetatis and release from tutelage in practise. Distinction between these two legal concepts lies in the authority which granted the concession. In the case of venia aetatis it was granted by the executive authority (sovereign), and in the case of release from tutelage it was granted by the judiciary (courts). Venia aetatis Venia aetatis: sovereign grants minor a concession to act as a major. Effect: makes a minor a major in the eyes of the court with the exception that the minor cannot alienate immovable property or burden it with a mortgage unless this capacity was expressly conferred. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 49

The Age of Majority Act 57 of 1972 repealed a Free State proclamation providing for venia aetatis but did not expressly revoke venia aetatis itself. Our courts have not expressly decided whether venia aetatis is obsolete. Release from tutelage Refers to the authority the courts had, to confer full capacity to act, on a minor. The Cape Province courts decided that they had the power to grant orders releasing minors from tutelage. Even though release from tutelage had the same effect as venia aetatis, it was held that the court was merely emancipating the minor in its capacity as upper guardian of all minors. Age of Majority Act 57 of 1972 Cases: Botes, Akiki, Smith Anyone 18 years or older can apply to the high court to be declared a major. Some authors submit that the requirement of necessity or desirability in the interest of the applicant should be what the court bases its decision upon. Since the inception of the act, however, the court has not granted any orders and adopts a very strict approach that seem to require more than the requirements of necessity or desirability of the applicant. The application Application must be in the form of a notice and must be supported by an affidavit stating: 1. The applicant’s full names, ordinary place of residence and date of birth 2. Particulars which allow the judge to decide whether the applicant is fit and proper to manage his own affairs 3. Whether the applicant lives with his parents and whether he intends to continue living with them 4. Whether the parents or guardian supports the application 5. Full particulars of any immovable property of which the applicant is the owner or will probably become the owner 6. Full particulars of any immovable property of which the applicant is the owner and which is subject to fideicommissum, usufruct or similar right, or which is subject to the control of the master, a tutor, curator or administrator 7. Any other relevant information which enables the court to judge whether it is necessary or desirable in the interests of the applicant to grant the application Orders the court can make After considering the application, the court may: 1. Grant the application www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 50

2. 3. 4. 5.

Refuse or postpone the application Issue a rule nisi with directions as to its service Order further evidence to be produced Make whatever order it considers just in respect of costs

The effect of the application If the court declares the applicant a major, he is deemed to have attained the age of majority for all purposes: thus the court can make no conditional order or withhold any of the normal incidents of majority. It is submitted by the Cronje & Heaton that the Act should have allowed the court to make conditional orders. Emancipation Cases: Dickens v Daly, Watson v Koen Emancipation: a minor is emancipated if his guardian grants him freedom independently to enter into contracts. Can be compared to when a minor performs a valid juristic act with the assistance of his guardian: for this, the guardian consents to one act, for emancipation the guardian consents to a wide variety of acts. Can only be effected by express or implied consent: carelessness does not result in emancipation. The onus of proving emancipation rests on the person alleging that emancipation has taken place. Emancipated minor’s rights and capacity to act If a minor is emancipated he incurs liability like a major. Effect on his capacity to act has not authoritatively been decided: the issues is whether the minor’s capacity to act extends beyond transactions in connection with the minor’s trade. Submitted by Cronje & Heaton that the degree of legal independence acquired depends on the circumstances of the case: if a parent gives the minor “complete freedom of action” the minor is emancipated for all intents and purposes; minor’s capacity to act would be restricted if parent only emancipated him for the purpose of a particular business. Even if a minor is emancipated he has available as a defence and action restitutio in integrum. Unclear whether emancipated minor has locus standi but submitted by the C&H that it is wrong to assume that he has locus standi in all transactions relating to his emancipation. Courts seem to assume that an emancipated minor has locus standi in iudicio. Tacit and express emancipation Previously, in common law, a distinction was drawn between tacit & express. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 51

This was later supplanted by venia aetatis. Tacit: occurs where a minor lives apart from his parents and manages his own undertaking Express: A declaration is drawn up before the court that the parent or guardian emancipates his child from parental authority. At common law tacit emancipation was a means of terminating minority which is different from today: only consequence today is that minor can enter into contracts independently. Submitted by C&H that Age of Majority Act 57 of 1972 has not repealed the institution of tacit emancipation as emancipation does not confer full majority status. Who can emancipate a minor? 1. At common law the father could emancipate his child 2. At common law a mother could grant it if: a. The child was born out of wedlock b. She had sole guardianship c. Sole guardianship passed to her on the father’s death 3. At common law, if the mother had custody and the father guardianship it was still the father who had to emancipate 4. According to Guardianship Act 192 of 1993 it seems that now whoever has guardianship has the right to emancipate a child 5. Unclear whether minor is emancipated if one parent accedes and the other refuses 6. If the minor has no parents, his legal guardian can emancipate him 7. Also unclear whether when once granted the guardian can revoke emancipation: C&H of the opinion that it is possible, but in Cohen v Sytner it was deemed irrevocable. Diverse factors which affect status Mental Illness Capacity of the mentally ill person The fact that a person has been declared mentally ill or is detained in an institution does not directly affect his or her status. The question is whether the person is mentally ill for purposes of private law. If the person is indeed mentally ill for these purposes, he or she has no capacity to act or litigate whatsoever.

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Definition of mental illness According to the Supreme Court of Appeal (Pheasant v Wayne 1922 AD 481 and Lange v Lange 1945 AD 332), a person is mentally ill for purposes of private law if either 1. 2.

he or she cannot understand the nature and consequences of the transaction he or she is entering into, or he or she does, in fact, understand the nature and consequences of the transaction, but is motivated or influenced by delusions caused by a mental illness

Proving mental illness The absence or presence of mental illness is a question of fact which is usually determined in the light of medical evidence presented to the court. Legal status of a mentally ill person Mental illness affects a person's legal status because the law attaches no consequences whatever to the expressions of will of a mentally ill person. Thus a mentally ill person has absolutely no capacity to act or litigate, his curator must act completely on his behalf. All juristic acts a mentally ill person enters into are invalid unless they were performed during a lucidum intervallum. The moment which is of importance in judging whether or not the juristic act is valid is that moment at which the juristic act is entered into. Certification of mental illness Whether or not a person has been declared mentally ill does not determine whether or not he has capacity to act: legal position is determined by whether person was actually mentally ill at the time which the transaction was entered into. Thus, certification of mental illness merely shifts the burden of proof: 1. An uncertified person is deemed normal until the opposite is proved, 2. A certified person is deemed mentally ill until the opposite is proved. Transactions of a mentally ill person 1. A mentally ill person cannot enter into any transactions even if he acquires only rights and the other party incurs only duties 2. Any transactions entered into are void and cannot be ratified 3. Transaction remains void even if person he was dealing with was unaware of the mental illness rd 4. Therefore a bona fide 3 party can not insist on the transaction being completed

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Liability of a mentally ill person 1. A mentally ill person can be held liable for an action based on undue enrichment 2. Can also be held liable on the basis of negotiorum gestio. Above liabilities are possible because they are not based on contract and capacity to act. As a mentally ill person cab have neither intention (dolus) nor negligence (culpa) he is not responsible for his crimes and delicts. Marriage of a mentally ill person 1. A marriage is not automatically dissolved due to mental illness of one of the spouses, but according to the Divorce Act 70 of 1979 mental illness without reasonable prospect of cure is grounds for divorce. 2. In a marriage in community of property a judge may suspend the mentally ill spouse’s power to deal with the estate to protect the other spouse’s interest in the joint estate. 3. According to the Matrimonial Property Act 88 of 1984, if the sane spouse convinces the court that the insane one’s actions is prejudicing or probably will prejudice his/her interest in the joint estate, the immediate division of the estate will be ordered. 4. Point (3) counts for marriages out of community, profit and loss subject to the accrual system as well, where the accrual will be immediately divided. Parental authority of a mentally ill person 1. Mental illness does not automatically terminate parental authority 2. The court may however make an appropriate order in respect of custody and guardianship of the person’s children or interfere in the exercise of parental authority if it is in the children’s best interest. General The running of prescription against a person cannot be completed while he is mentally ill There are numerous offices a mentally ill person cannot hold. Appointment of a curator Curator bonis: looks after the mentally ill person's estate and supplements his or her capacity to act. Curator ad litem represents a mentally ill person's interests in legal proceedings. Curator personae cares for the mentally ill person's person (body), either generally or for a specific purpose: entails a serious curtailment of a person’s rights and freedoms and is not done lightly.

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It is important to note that the mere fact that a person has been declared mentally ill, and that a curator has been appointed to administer his or her estate, does not mean he or she loses all capacity to act Limitations of a curator A curator can not: 1. perform acts that are considered of a too personal nature, i.e. institute an action of divorce on behalf of a mentally ill person 2. make a will 3. exercise paternal authority on behalf of a mentally ill person Mental Health Act 18 of 1973 For the purposes of the Mental Health Act 18 of 1973, a "patient" means a person who is mentally ill to such a degree that it is necessary that he or she be detained, supervised, controlled and treated, and includes a person who is suspected of being or is alleged to be mentally ill to such a degree. In terms of the Act a person may be treated and admitted to an institution voluntarily or as a result of a reception order. If someone suspects that a person is mentally ill, he or she may submit a written statement to a magistrate in which he or she indicates the reasons for the application, and his or her relationship to the person. In very urgent cases the application may be made to the superintendent of a mental health institution. The magistrate or superintendent will then consider the application and appoint two medical doctors to examine the patient. The magistrate may also order that the person be placed in an institution for a period of not more than 42days. This order does not affect a person's status, but only his or her freedom of movement. The superintendent of the institution to which the patient is admitted must examine the patient and report to the official curator ad litem concerned, who has to forward the report to a judge of the high court. The judge considers this report. He or she may then make an order either for further detention, or for the discharge of the patient, or he or she may refer the matter for trial. A curator bonis may be appointed for the patient. Mental Health Care Act 17 of 2002 Mental Health Care Act refers to "mental health care user" instead of “patient”. A mental health care user is 1. a person receiving care, treatment and rehabilitation services or 2. using a health service at a health establishment aimed at enhancing the person's mental health status. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 55

Mental Health Care Act distinguishes between different categories of persons requiring mental health care on the ground of whether or not they submit to mental health care and admission voluntarily. Involuntary care, treatment and rehabilitation services 1. may be provided only if the head of a health establishment approves a written application for the provision of such services. 2. The head of the health establishment must have the person examined by two mental health care practitioners. 3. He may only grant the application if both practitioners agree that involuntary services are needed. 4. The person is then referred for a 72-hour assessment period. 5. After the assessment the person must immediately be discharged unless the head of the establishment is of the opinion that his or her mental health status warrants involuntary commitment. 6. If the head is satisfied that involuntary commitment should occur, he or she must submit a written request to the Mental Health Review Board. 7. If the Mental Health Review Board grants the request, the matter must be referred to the high court. 8. If the Mental Health Review Board denies the request the person must be discharged. 9. After considering all the information, the high court may either order the person's immediate discharge or his or her further hospitalisation. 10. If necessary, an administrator (who is similar to the curator bonis which the common law and the Mental Health Act 18 of 1973 provide for) may be appointed to care for and administer the person's financial affairs. Rights of mental health care users The Mental Health Act 18 of 1973 was often criticised for failing to protect the rights of mentally ill persons. The Mental Health Care Act 17 of 2002, on the other hand, places a great deal of emphasis on the rights of mental health care users. The Act, inter alia, contains a separate chapter setting out specific rights and duties in respect of mental health care users. These rights and duties operate over and above the rights other laws confer on mental health care users. Whenever these rights or duties are exercised or performed regard must be had to the mental health care user's best interests. Rights can include: 1. Right to representation 2. Confidentiality 3. Having their person, human dignity and privacy respected www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 56

4.

Being provided with care, treatment and rehabilitation services that improve their mental capacity to develop to full potential to facilitate their integration into community life

Care, treatment and rehabilitation Care, treatment and rehabilitation services: 1. may not be used as punishment 2. may not be used for the convenience of other people 3. must be proportionate to the mental health care user’s mental health status 4. may intrude only “as little as possible to give effect to the appropriate care, treatment and rehabilitation”. Except in urgent cases the patient must be informed of his rights prior to the administration of any care, treatment and rehabilitation services. Everyone providing these services must take steps to ensure that mental health care users are protected from 1. exploitation 2. abuse 3. degrading treatment 4. forced labour Discrimination in the Act Act: 1. prohibits unfair discrimination on the ground of the person’s mental health status 2. provides that any determination concerning a person’s mental health status must be based solely on factors relevant to his mental health status and not a. socio-political status b. economic status c. cultural background d. religious background, or e. affinity Inability to manage one’s own affairs Court can appoint a curator bonis for anyone who, owing to some or other physical or mental disability or incapacity, is not capable of managing his or her own affairs. Applies to persons who are, for example, deaf and mute, blind, senile, paralysed or seriously ill. The fact that a curator has been appointed for such a person does not result in the person losing his or her capacity to act altogether. The circumstances have to be considered to decide whether the person was truly capable of managing his or her own affairs when he or she performed a certain juristic act. If, at the given www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 57

moment, the person is physically and mentally capable of managing his or her own affairs, he or she can enter into a valid juristic act. The curator need only assist such a person in so far as such assistance is necessary, that is if the person, while performing the juristic act, is not capable of managing his or her own affairs. Influence of alcohol and drugs Intoxication refers not only to the effect of intoxicating liquor, but also to the effect of any drug. If a person has been influenced to the extent that he or she does not know what he or she is doing or what the consequences of his or her juristic acts are, then those acts are void (not voidable). As regards the degree of intoxication, it is not sufficient that the person is influenced in such a way that it is merely easier to persuade this person to conclude the contract, or that this person is more willing to conclude the contract; the person must be influenced to such an extent that he or she does not have even the faintest notion of concluding a contract, or of the terms of the contract. The contract will then be void. The person who alleges that someone is intoxicated must prove it. Intoxication affects a person's capacity to act only for as long as the intoxication lasts. Prodigality A prodigal is a person who has normal mental ability but is not capable of managing his or her own affairs, because he or she squanders his or her assets in an irresponsible and reckless way as a result of some defect in his or her power of judgment or character. From the decisions of the courts it seems that prodigality normally goes hand in hand with alcoholism and/or gambling. To protect such people and their families against their prodigal tendencies, their status can be restricted by an order of the court. Any interested party, including the prodigal himself or herself, can apply to the court for an order declaring a person to be a prodigal and requesting a curator bonis to administer his or her assets. Prodigal legal capacity The prodigal is limited in terms of commercial dealings and handling finances, i.e. may not be a director of a company or be a trustee of an insolvent estate. Prodigal capacity to act The declaration of prodigality must be coupled by an order restraining the prodigal from administering his estate in order to deprive him of the ability to act. The effect of the order is to make the legal status of the prodigal analogous to that of a minor, i.e. limited capacity to act and may not independently enter into juristic acts by which duties www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 58

are imposed on him. The prodigal can thus enter into transactions with the assistance of his curator or the curator can act on his behalf. The curator must honour transactions the prodigal validly concluded before being interdicted because up till then the prodigal had full capacity to act. The prodigal may be charged with contempt of court if he enters into a transaction. The prodigal retains parental authority over his children. Validity of prodigal’s transactions Same as a minor: 1. Transactions are voidable at the instance of the curator, who may ratify or repudiate a. If ratified, it is binding b. If repudiated, the prodigal may recover from the other whatever has been paid or delivered to that party 2. Other party may also hold the prodigal liable on the basis of undue enrichment Misrepresentation by prodigal If the prodigal misrepresent himself as having full capacity to act, he cannot be held liable Marriage Roman Dutch authors disagree on whether a prodigal can get engaged or married, but modern authors hold that a prodigal can get married without the consent of his curator. Making of a will A curator cannot make a will for a prodigal or assist him with making one. Whether the prodigal himself has the capacity to make a will is unclear: common law would have it that he can, but as the interdict precludes the prodigal from making any disposition of his property whatsoever, it is probably safer to obtain permission from the state to make a will. If the prodigal made a will before being declared as such, the will is valid. Prodigal capacity to litigate The prodigal may not embark on litigation without his curator’s consent. He may, however: 1. Sue unassisted for divorce 2. Apply for an order to have his curator dismissed or the curatorship set aside Capacity to be held accountable for crimes and delicts Prodigality does not affect a person’s capacity to be held accountable for crimes and delicts he commits. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 59

Constitutional implications of interdiction as a prodigal C&H submit that the limitations placed on a prodigal are unconstitutional. The interdict infringes on his right to dignity and privacy. Insolvency A person is insolvent if his or her liabilities exceed his or her assets (in other words when the person has more debts than assets). If the person's estate is sequestrated as a result of this state of affairs the sequestration affects his or her status. Legal capacity of an insolvent person There are certain offices an insolvent person cannot hold, i.e. he may not be the director of a company or mutual bank or a trustee. Capacity to act of an insolvent person When someone is declared insolvent and his or her estate is sequestrated, he or she is divested of his or her estate, which then vests in the master of the high court until such time as a trustee is appointed. When the trustee is appointed the insolvent estate vests in the trustee. Even though the trustee administers the insolvent estate this does not mean that the insolvent loses all capacity to act. 1. He may still enter into contracts provided he does not thereby purport to dispose of any property of the insolvent estate. 2. He must, however, get written consent from the trustee if he wants to enter into a contract that could adversely affect the insolvent estate. 3. He also needs the trustee’s consent to carry on, be employed in or have any interest in the business of a trader who is a general dealer or manufacturer. If the insolvent enters into a contract in breach of the above conditions, the contract is still valid so long 1. the property disposed of was acquired after sequestration 2. the disposition was for valuable consideration 3. the person with whom the insolvent transacted was unaware and had no reason to suspect that the estate was under sequestration Other contracts in breach of the limitations are voidable at the instance of the trustee. Capacity to litigate of an insolvent person The insolvent does not lose all capacity to litigate when his or her estate is sequestrated. All civil proceedings by or against the insolvent are stayed (i.e. suspended) until the appointment of a trustee to act on behalf of the insolvent estate. For the rest, the insolvent retains capacity to litigate. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 60

Capacity to be held accountable for crimes or delicts Insolvency does not affect a person’s capacity to be held accountable for crimes and delicts he commits. If he commits a delict after sequestration, however, the compensation must be paid out of those assets the insolvent acquired after sequestration that fall outside the insolvent estate.

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Law of persons PVL1501 – Case summaries (unisa prescribed cases) 1. Introduction With all legal jargons used in cases, first year students often find studying a Judgment a very daunting task. This package provides a summary of cases which are prescribed for the module PVL 1501. It must be noted from the onset that in examinations, students do not get the full marks because they do not include cases to a given problem type question. Every time you are asked to substantiate or give authority, you must refer to a case similar to the facts given in the question. Below is the recommended structure when summarising a case. 2. The facts of the case 3. The legal question(s) 4. The judgment 5. The reasoning for the judgment LAW REPORTING As you may have known by now, South Africa adheres to a Judicial Precedence system this is easily facilitated by Law reports, these often appear as are identified in abbreviations The Case name and the year (volume) & (Abbreviation of name of law report) e.g.  S v Lubasi 2004 (3) SACR 28 (T) SACR: South African Criminal Law Reports. (Only criminal law cases reported here)  Molefe v Mahaeng 1999 (1) SA 562 (SCA) SA: South African Law Reports. (Covers SA criminal, civil & constitutional cases)  Ex parte Addleson 1948 (2) SA 16 (E)  SA: South African Law Reports.

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1

EX PARTE BOEDEL STEENKAMP 1962 (3) SA 954 (O)

THE FACTS OF THE CASE The testator left the residue of his estate to his daughter and to the first generation “wat by datum van dood in die lewe is”. The testator’s daughter was pregnant at the time of his (the testator’s) death and subsequently gave birth to Paul Johannes. The executor to the estate sought a declaratory order on the issue of whether only the children born at the time of the testator’s death would inherit or if Paul Johannes, born after the death of the testator, would also be able to inherit. Curator ad litem for Gerda and Daniel Johannes (the two children already born) held that the words “wat by datum van dood in die lewe is” is sufficient enough and without ambiguity to exclude the unborn child from the estate. Curator ad litem for Paul Johannes was of the opposite opinion stating that there is no evidence that the testator wished to exclude the unborn child from his will. The legal questions are: 1.

Does the nasciturus have the legal capacity to inherit?

2.

Is Paul Johannes (in ventre matris) entitled to a share of the estate?

Judgment Judge De Villiers R held that the nasciturus should be able to inherit by means of the nasciturus fiction subject to being born alive and it being to the advantage of the nasciturus. He further held that Paul Johannes is entitled to share in the estate of the testator in equal amounts to his mother, brother and sister. Reasons the judgment Judge De Villiers R referred to the decision of House of Lords in Elliot v Lord Joicey where the court held that if the testator’s intentions are not clear, when words as “in lewe” or “gebore” are used in conjunction with a specific time line and there is no other specific statement www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 63

specifically excluding the child in ventre matris it should be presumed that the testator had no intention of excluding the child in ventre matris form his/her will. 2. Road Accident Fund v Mtati 2005 (6) SA 215 (SCA)

The facts of the case A pregnant woman was seriously injured when a motor vehicle collided with her. The accident was caused by negligence of the driver in question. The pregnant woman’s child (Z) was subsequently born with brain injuries and mental disability. The father instituted a claim on behalf of the child against the Road Accident fund. The Road Accident Fund raised a special plea. It contended that firstly and unborn child is not a person (legal subject) and is therefore not entitled to compensation and secondly, because an unborn child is not a person (legal subject) the driver does not owe a duty of care to the unborn child. The legal questions 1. Does Z have a claim against the Road Accident Fund for the damages resulting from the disabilities? 2. Should such an action be allowed by using the nasciturus fiction, or by using the ordinary principles of delict? The supreme court of appeal decided that it would be intolerable if our law did not grant an action for prenatal injuries and that such an action should be based on the law of delict. The appeal was thus unsuccessful. Judgment / The reasoning for the judgment The court held that, according to the ordinary principles of the law of delict, unlawfulness and damage are separate elements for delictual liability and that the child’s delictual right of action becomes complete when he/she is born alive. The assertion that the driver of the vehicle did not owe Z a legal duty because she had not yet been born must be rejected.

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As a result of this judgment, all future claims for prenatal injuries will have to be based on the ordinary principles of the law of delict and not on the nasciturus fiction. The nasciturus fiction will still apply to other areas of the law.

3. Christian Lawyers Association of SA V The Minister of Health 1998 (11) BCLR 1434 (T) SA 1113 (T)

The facts The plaintiffs sought an order declaring the Choice on Termination of Pregnancy Act 92 of 1996 unconstitutional, striking it down in its entirety. The plaintiffs argued that life begins at conception; therefore termination of pregnancy is in violation of section 11 of the Constitution of the Republic of South Africa, 1996, which affords everyone the right to life. The defendants argued that the foetus is not a bearer of rights in term of section 11 of the Constitution.

The legal question Does the wording of “everyone” or “every person” in the Constitution include an unborn child (as a legal subject), from the moment of conception?

Judgment/ reasons for the judgment Judge McCreath held that the question is not one to be answered by medicine but by proper interpretation of section 11 of the Constitution. He further stated that if the drafters of the Constitution intended to protect the foetus, specific reference to the protection of the foetus would have been made in the Bill of Rights, section 28.

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The Transvaal Provincial Division of the High Court held that to afford legal personality to the foetus would impinge to a lesser or greater extent on the rights to human dignity, life, privacy, religion, belief and opinion and health care. The court thus concluded that the particulars of the claim fail to make out a cause of action and the exception must succeed.

4. Christians Lawyers’ Association V Minister of Health 2004 (10) BCLR 1086 (T)

The facts The plaintiffs challenged the constitutionality of the Choice on Termination of Pregnancy Act 92 of 1996 that allows a pregnant minor of whatever age to independently consent to the termination of her pregnancy. The plaintiffs sought a declaratory order striking down the relevant provisions. They alleged that a woman below 18 years of age is incapable of giving informed consent as required by the Act and that she has to have the assistance of her parents or guardian when she decides to have her pregnancy terminated. They further alleged that allowing a minor to independently decide to have her pregnancy terminated violates several of her constitutional rights, amongst others, having a child’s best interest be of paramount importance. The defendant raised the exception that the plaintiff’s particulars of claim do not disclose a cause of action. The court upheld the exception. The legal questions 1.

Are women below the age of 18 incapable of giving informed consent?

2. Does the Termination of Pregnancy Act 92 of 1996 infringe on the rights of women wishing to terminate their pregnancies? www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 66

Judgment Judge Mojapelo J held that the termination of pregnancy is regulated and the act in question is, does not affront the Constitution. He further held that the right in question is not unregulated and for that reason he made the following order: 1.

The exception is upheld

2.

The plaintiff’s claims are dismissed.

The reasons for the judgment. The court held that due to a distinction made in the act between women capable of giving informed consent and those women not capable of giving informed consent, is a rational distinction and is therefore capable of justification. It is therefore not unconstitutional. The court further held that the plaintiff’s claim that the best interests of the child clause is infringed upon is unsustainable. The legislative choice opted for in the Act served the best interests of the pregnant child because it is flexible and accommodates the individual position of a girl based on her intellectual, psychological and emotional make up and majority. 5. Re Beaglehole 1908 TS 49

The facts A testator left an amount of money to beneficiary. The executor of the estate had paid the money to the master of the High Court because the testator could not be traced. The executor applied for an order of to pay the estate over to him (the executor) so he could pay the money to the testators remaining heirs. It was alleged that the executor had not been heard from in over 15 years and therefore is presumed dead. The court refused to issue the presumption of death.

The legal question What law system should be applied during the hearing of the case in question? www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 67

The judgment Judge Innes CJ refused to grant the order of presumption of death when applying Roman-Dutch law principles which are, is his opinion, the correct system of law to be used.

The reasoning for the judgment Judge Innes CJ held that in Roman-Dutch law, no prescribed period of being untraceable constitutes granting an order of presumption of death and the decision is left to the discretion of the judge. He further held that more accurate inquiries about the whereabouts of the person in question could have been made and therefore did not grant the order of presumption of death.

6. Ex Parte Pieters 1993 (3) SA 379 (D)

The facts The applicant’s father disappeared in 1975. The applicant mother died and left a sum of money to his (the applicant’s) father. The applicant applied for and order to either a) an order of presumption of death or b) and order compelling the Master of the High Court to effect payment to him and his siblings, subject to them providing security. There was no evidence that would indicate that the applicant’s father is possibly dead, except his age (73). The court did not issue the presumption of death but authorised the Master of the High Court to distribute the money equally between the applicant and his siblings without the necessity of providing security.

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Under what circumstances will the court grant an order of presumption of death?

The judgment Judge Alexander J held that no presumption of death will be ordered because the applicant’s argument is not strong enough to order a presumption of death. The Master is authorised to distribute the amount of R6148.14 equally between the applicant and his siblings.

The reasoning for the judgment

The court held that, taking all the known information into account, the information is not enough to presume the person in question as dead. Judge Alexander J referred amongst other cases to Re Beaglehole and held that he knows of no rule which would require to court to presume death only on the lapse of years.

7. J V Director General, Department of Home Affairs 2003 (5) BCLR (CC)

The facts

One party to a same-sex life partnership gave birth to twins who had been conceived via in vitro fertilisation. The ova of the first applicant were used with donor sperm. Both parties wished to be registered and recognised as the twins’ birth-mothers. The Births and Deaths Registration www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 69

Act 51 of 1992 only made provision for one male and one female parent, thus the first applicant could not be registered as the twins’ parent. The applicants approached the Durban High Court. The court inter alia ordered the Director-General of Home Affairs to register the second applicant as the twins’ mother and the first applicant as the twins’ parent. The Durban High Court further declared section 5 of the Children’s Status Act 82 of 1987 unconstitutional. The applicants approached the Constitutional Court for confirmation of the decision in question. The Constitutional court confirmed the unconstitutionality of section 5 of the Children’s Status Act 82 of 1987. The legal question Is section 5 of the Children’s Status Act 82 of 1987 unconstitutional?

The judgement: The Constitutional court held that section 5 of the Children’s Status Act 82 of 1987 is unconstitutional and made the following order: i. Section 5 of the Children’s Status Act 82 of 1987 is declared to inconsistent with the Constitution to the extent that the word “married” appears in that section and to the extent that the section does not include the words “or permanent same-sex life partner” after the word “husband” wherever it appears in that section. ii. In section 5 of the Children’s Status Act 82 of 1987 the word “married” is struck out wherever it appears in that section. iii. In section 5 of the Children’s Status Act 82 1987 the words “or permanent same-sex life partner” are read in the after the word “husband” wherever it appears in that section. iv. The words in subsection 5(1) (a) “as if the gamete or gametes of that woman or her husband were used for such artificial insemination” are struck out. The reasoning The court held that the discrimination was unfair with regards to gays and lesbians and therefore amended section 5 of the Children’s Status Act 82 of 1987 accordingly. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 70

8. M V R 1989 (1) SA 416 (O) The facts

The applicant and the respondent had sex on a regular basis. The respondent alleged that she was a virgin at the time she and the applicant had had sex on a regular basis. The applicant denied this and said she (the respondent) had another boyfriend. The respondent denied this. In January 1979 the respondent informed the applicant that she was pregnant. The applicant subsequently paid maintenance for eight years. The respondent informed the applicant that she applied for an order of an increased amount of maintenance from the applicant. The applicant applied for paternal testing and the respondent opposed this application. The respondent, in the mean time, married R and the child, S, accepted and loved R as his/her father. The respondent and R planned on telling S, during the next year, that the applicant is his/her father. The court felt that it was crucial for the child’s development and happiness that clarity in this matter be reached. The legal questions are: 1. Is there, in this particular case, need for the court to intervene as “oppervoog” of children. 2. Is it within this court’s jurisdiction to compel the mother to subject herself to blood tests?

The Judgment Judge Kotze R held that the court has to intervene in this particular case because it would be to the advantage of the child in questions. He further held that the court could compel the respondent to go for blood tests, once again, because it would be to the advantage of the child to know who is his/her father. The reasoning www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 71

Judge Kotze held that compelling a man that is not the father of the child to pay maintenance is not an advantage to the child that should be considered by the court. He further held that it would be an advantage to know who the real father of the child it, before the respondent told the child that the applicant is his/her father. Judge Kotze ruled that the mother has to go for the blood tests and she should also have to child go for the blood tests in order to clarify if the applicant is the father of the child.

9. S v L 1992 (3) SA 713 (E) The facts The appellant alleged the respondent to be the father of her child. The respondent had paid maintenance from time to time but never alleged that he was the father of the child. He admitted to having intercourse with the appellant at the time the child could have been conceived, but contended that he was not the only mad who had done so. The appellant applied to the maintenance court for an increase in maintenance to be paid by the respondent. The respondent opposed the application and requested the appellant to submit herself and the child to blood tests in order to establish whether the respondent was indeed the child’s father. The applicant refused. The respondent applied to the high court for an order compelling the appellant to submit herself and the child to medical testing. The order was granted, but the appellant successfully appealed successfully to the full bench. The legal questions 1.

Can the court compel the woman to submit herself and the child to blood testing?

2. Should the respondent have approached the Supreme Court for an order compelling the mother to submit herself and the child to blood testing? The judgment The appeal was successful - the mother was not compelled to submit herself and the child to blood testing. Erasmus J further held that the respondent should not have approached the Supreme Court for an order to compel the appellant to submit herself and the child to blood

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testing. Erasmus J held that respondent should have remained in the maintenance court and there adducted proof of the appellant’s refusal to submit herself and the child to blood testing. The reasoning The Supreme Court held that the respondent could not prove, on a balance of probabilities that submitting the child to blood testing would be to the advantage of the child. The child knew she was illegitimate and accepted the respondent as her father. The appellant felt it would cause a feeling of insecurity by the child. The Supreme Court held that they, as upper guardians of minors, do not have the authority to intervene with the custodian parent’s decision. The court further held that they (the Supreme Court) should not lightly intervene in the proceedings of another court, in order to grant a party procedural remedy which it does not have in terms of the lower court’s rule of practice. 10. LB v YD 2009 (5) SA 463 (T) and YD v LB (A) 2009 (5) SA 479 (GNP) The facts

The applicant (the alleged father) and the respondent (the mother), who had never married each other, were involved in an intimate relationship between February 2006 and April 2007. The respondent discovered that she was pregnant on 23 March 2007. In April 2007 she became intimately involved with another man, whom she married in July 2007. The respondent’s daughter, Y, was born on 8 November 2007. The applicant requested the respondent to submit to blood tests voluntarily to determine paternity with regard to Y. The respondent informed the applicant that she was not prepared to subject herself to a blood test and that it was not in the best interests of Y to do so either.

The applicant then launched the application in the high court for an order directing the respondent to submit herself and Y to blood tests. After considering the facts in Seetal v Pravitha 1983 (3) SA 827 (D), M v R 1989 (1) SA 416 (O) and O v O 1992 (4) SA 137 (C), Murphy J came to the conclusion that the preponderance of authority favoured the proposition that the high court, as the upper guardian of all minors, was entitled to authorise a blood test on a www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 73

minor despite objections by a custodian parent. He held that it would be in the best interests of Y that paternity be scientifically determined and resolved. He ordered the respondent to submit herself and her minor child Y, within 30 days of the order, to blood tests for the purpose of determining whether the applicant is the biological father of the child Y.

YD v LB (A)

The respondent then applied for leave to appeal in YD v LB (A). The respondent (the applicant in the application for leave to appeal, but to avoid confusion, I shall keep referring to her as the respondent) raised 16 grounds of appeal, but the application for leave to appeal was dismissed.

Discussion:

The position with regard to the use of blood tests to determine paternity in South Africa is very uncertain, and reliance on recent, post-constitutional cases is the only way to determine the courts’ attitude with regard to ordering blood tests in a paternity dispute. Apart from D v K 1997 (2) BCLR 209 (N), which was heard after the coming into operation of the Constitution of the Republic of South Africa 200 of 1993 (the interim Constitution), but before the Constitution of the Republic of South Africa, 1996 (the Constitution) came into effect, the present case is the only case that deals with blood tests to determine paternity in a constitutional framework. It is also the first case that deals with blood tests in paternity disputes to be reported in 13 years, and the first case of this nature since the implementation of the Children’s Act 38 of 2005. As a result, the decision is an important one.

There are some aspects of Murphy J’s judgment that need to be mentioned: It appears as if he did not properly take cognisance of the marital status of the mother. www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 74

She was married at the time of the child’s birth. In terms of the maxim pater est quem nuptiae demonstrant Y was born to married parents, and it is presumed that the woman’s husband is the child’s father. Evidence on a balance of probabilities is needed to rebut the presumption that her husband is her child’s father. The court failed to take this into account in its judgment. Other than the best interests of the child, he did not consider any of the relevant constitutional rights, such as the right to human dignity, freedom and security of the person, and privacy. This unfortunately jeopardises the relevance of the decision. The decision of the court to compel the respondent and Y to submit to blood tests is welcomed, but because all the facts and presumptions with regard to paternity, as well as all the relevant constitutional rights were not considered, the decision does not provide the much needed guidance as far as this area of the law is concerned.

11. Frasier V Children’s Court, Pretoria North 1997 (2) SA 261 (CC) The facts The second respondent fell pregnant while she and the applicant were still living together. During her pregnancy, the second respondent decided to give the child up for adoption. The applicant disagreed and launched a series of unsuccessful application to stop the proposed adoption and to have the child handed to him. The applicant applied for review of the Children’s court decision by the High Court. On review, the adoption order was set aside and the matter was referred to the Constitutional Court.

The legal question •

Is section 18(4) (d) of the Child Care Act 74 of 1983 unconstitutional?

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• Should the court declare s 18(4) (d) of the Child Care Act 74 of 1983 invalid or should the court give Parliament an opportunity to correct the act in terms of s 98 (5) of the Constitution of South Africa.

The judgment: The Constitutional Court made the following order: 1. The court declared s18 (4) (d) of the Child Care Act 74 of 1983 as invalid and amended the act to include the father’s consent with regards to adoptions. 2. In terms of the proviso to s98 (5) of the Constitution, Parliament is required within a period of two years to correct the defect in the said provision. 3. The said provision shall remain in force pending its correction by Parliament or the expiry of the period specified in paragraph 2.

The reasoning:

The court held that the Act in question was unconstitutional, because it discriminates unfairly against fathers of extra-marital children on the grounds of their marital status. The court held that it can be argued that the Act also discriminates unfairly on grounds of gender, because of the fact that a mother of an extra-marital child has different rights to that of a extra-marital father.

12. Motan V Joosub 1930 AD 61 The facts

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The appellant was in a customary, Muslim, marriage with the respondent. As their union did not constitute a valid marriage, their children were born of unmarried parents. The appellant claimed maintenance from the paternal grandparents. The respondent denied liability. The exception was dismissed and it was held that the paternal grandfather of the children who are born of unmarried parents is not obliged to support them. The appellant unsuccessfully appealed against the decision.

The legal question: Are paternal grandparents liable to pay maintenance for children of his son born of unmarried parents?

The judgment: The opinion of the lower court is correct and the appeal therefore is dismissed.

The reasoning:

The court held that according to Roman law, the paternal grandparents were not liable to maintenance of their son’s illegitimate children. The court held that in this case, there can be some certainty that the children are those of the son of the grandparents, but in other cases, there is not sufficient certainty regarding paternity. If paternal grandparent were required to pay maintenance for every illegitimate child of their son, it may impose a burden which may be difficult for them to remove by proof.

13. Pietersen V Maintenance Officer [2004] 1 All SA 117 (C), 2004 (2) BCLR 205 (C)

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The facts

The applicant is an unmarried student who gave birth to a child in 2003. The child’s father admitted to paternity. The child’s father did not pay maintenance towards the child, as he had no income. The Maintenance Court also found that the father could not contribute towards maintenance. The applicant’s parents supported the applicant and the child. The applicant lodged a maintenance complaint with the maintenance officer to the effect that the child’s paternal grandparents are legally liable to maintain the child but failed to do so. The applicant asked the maintenance officer to summon the paternal grandparents to attend the maintenance enquiry. The maintenance officer refused to do so, because the law does not compel the paternal grandparents to pay maintenance towards their unmarried son’s children. The legal question: 1.

Does the common-law rule differentiate between people or categories of people? If so?

2.

Does the differentiation amount to unfair discrimination?

I. Does the differentiation amount to discrimination? If it is on a ground specified in section 9 (3), then discrimination will have been established. II. If the differentiation amounts to discrimination, does it amount to unfair discrimination? If it has been found to have been on specified ground, then unfairness will be presumed. 3. If the differentiation is found to be unfair then a determination will have to be made as to whether the common-law rule can be justifies under the limitations clause (Section 36 of the Constitution) The judgment: Judge Fourie J held: It is declared that the paternal grandparents have a legal duty to support the extra marital child of the applicant to the same extent as the maternal grandparents.

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The first respondent is directed to take necessary steps for an enquiry to be held in terms of section 10 of the Maintenance Act No 99 of 1998, with a view to enquiring into the provision of maintenance, by the second and third respondents, for the said extra marital child of the applicant. The reasoning: Judge Fourie J held that the differentiation between children born out of wedlock and extra marital children not only denies extra marital children an equal right to be maintained by their paternal grandparents, but is also not in line with the “best interests of the child” clause in the Bill of Rights.

14. Louw V MJ & H Trust 1975 (4) SA 268 (T) The facts

While still a minor, the appellant bought a motorcycle from the respondent. While relying on his minority at the time the contract was concluded, the appellant subsequently reclaimed R338 which he had paid to the respondent. The respondent contested on the grounds of misrepresentation by the appellant. The respondent filed a counterclaim for payment of arrear installments and for the value of parts stolen off the motorcycle. It was alleged that the theft was due to the appellant’s failure to observe the contractual obligation. The court held that the minor was bound by the contract and that the appellant was liable for the value of the stolen parts. On appeal to the Transvaal provincial division the appellant argued that the respondent knew the appellant was a minor and should not have accepted the appellant’s representation of being emancipated. Alternatively it was argued that the minor’s contract could not be enforced even if the contract was induced by misrepresentation and that the minor was accordingly entitled to restitutio in integrum. The legal questions: www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 79

1.

Could the minor be held accountable even if he misrepresented himself?

2.

Is the appellant entitled to restitutio in integrum?

The judgment: The appeal was allowed to the extent that in relation to the counterclaim, the magistrate’s judgment should be altered to one of absolution from the instance on the claim for R298.45 and to the judgment for the plaintiff (the appellant) on the claim of R69. The reasoning: Judge Eloff J held that the minor could not be held accountable because the contract was void, even if the minor misrepresented his contractual capacity. The respondent was not entitled to claim enforcement of the contract. It was further held that the minor was not entitled to restitution in integrum, not because the contract was void, but because of his fraud.

15. Edelstein V Edelstein 1952 (3) SA 1 (A) The facts

The appellant was in the custody of her mother and got married with consent of both her parents, while she was still a minor. The appellant and her husband entered into an antenuptial contract prior to the wedding. The contract excluded community of property, community of loss and profit, marital power was excluded. The appellant’s mother, only the mother assisted her in entering into the contract. The appellant’s husband died and left a will in which the appellant was a beneficiary. The executors of the estate framed the liquidation and the distribution account on the basis that the marriage had been out of community of property. After being advised that the antenuptial contract was invalid, the appellant sought an order www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 80

declaring that she had been married in community op property and directing the executors to amend the liquidation and distribution account by awarding her half of the net value of the joint estate. The only opposing party was the commissioner of Inland Revenue. The commissioner held that the amount of death duties payable would be less if the order was granted.

The legal question Was the contract the minor entered into, with assistance from her mother, a valid contract?

The judgment The application was dismissed in the court a quo, but succeeded on appeal.

The reasoning The minor entered into the contract without the consent/assistance of both her parents (mother and father). The antenuptial contract was thus void and it was held that the parties were married in community of property.

16. Wood V Davies 1934 CPD 250 The facts

While the plaintiff was still a minor, he inherited £10 000. The terms of the will stated that the money would remain in a trust and that the plaintiff would only be entitled to in interest on the www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 81

capitol. During the plaintiff’s minority, the plaintiff’s guardian purchased a house on the plaintiff’s behalf. A purchase price of £1750 was agreed on and was payable in instalments. The value of the property was £1550. Until the plaintiff’s majority, the instalments were paid out of the interest of the inherited amount. When the plaintiff reached age of majority, a considerable amount of the purchase price was still unpaid. The plaintiff claimed cancellation of the contract and repayment of the amounts he had already paid in terms of the contract. The plaintiff alleged that the contract was prejudicial to him. The legal question: 1. Had the minor’s legal guardian have the authority to enter into the contract on the minor’s behalf? 2.

Was the contract entered into, prejudicial towards the minor?

3.

Was the minor entitled to restitution in integrum?

The judgment: Judge Sutton J held that the plaintiff is entitled to restitution integrum and there must be an order for the cancelation of the contract of sale and the return of payments made on the minor’s behalf under the contract, together with interest. The defendant is entitled to be placed in statu quo. The plaintiff had occupation of the property purchased since May 1st 1929 and he must account the defendant for the use and occupation of the property. The judgment was therefore in favor of the plaintiff. The reasoning: Judge Sutton J held that the contract was prejudicial towards the minor, firstly, because the property was bought for £200 more than it was valued at and secondly, it imposed liabilities on the plaintiff he attained when he became a major.

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17. Dickens V Daley 1956 (2) SA 11 (N)g The facts The respondent, a minor, entered into a lease agreement with the appellant. The respondent drew a cheque in favour of the appellant, but the cheque was dishonoured as payment had been stopped by the respondent. The appellant sued the respondent for payment in the magistrate’s court. In a special plea the respondent admitted to drawing the cheque, but averred that he was a minor and therefore had no locus standi in iudicio and that the appellant’s claim was accordingly unenforceable. The appellant contended that the respondent was emancipated and was therefore liable on the cheque. The appellant relied on the fact that the respondent had been living with his mother and stepfather and was paying his board and lodging; that the respondent had been working as a clerk for four years, that the respondent’s father did not exercise control over the respondent and that he operated on his own bank account. The Magistrate ordered absolution from the instance. The appellant successfully appealed.

The legal question Was the respondent tacitly emancipated?

The judgment: The magistrate erred in granting the absolution from the instance. The appeal was allowed.

The reasoning: The court held that the respondent was tacitly emancipated, because the respondent’s father abandoned the right to exercise power over the respondent’s mode of life and such operations. The respondent undertook to maintain himself.

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18. Watson V Koen H/A BMO 1994 (2) SA 489 (O)

The facts The respondent sued the appellant in the magistrate’s court in terms of an agreement of sale between them relating to course material. The appellant averred that he could not validly enter into the agreement because he was a minor. The respondent maintained that the appellant was emancipated. The magistrate found in favour of the respondent. The minor successfully appealed against the magistrate’s decision.

The legal question: Is the appellant emancipated, either tacitly or emancipated by his parents?

The judgment: The court found in favour of the appellant and the appeal was successful. The reasoning: Judge Write R held that the respondent could not prove clearly that the appellant was indeed emancipated, either tacitly or by his parents. 1. May 2002 Examinations and solutions www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 84

Question one Which one of the following is not recognised as a legal subject in our law? [I] trade unions [2] banks [3] universities [4] partnerships Indicate in which one of the following cases the court decided that the mother of an unborn child could not enter into an agreement on behalf of her child that the father of the child would not be responsible for paying maintenance for the child after the child's birth: [I ] Pinchin v Santam Insurance Co 1963 (2) SA 254 (W) [2] Shields v Shields 1946 CPD 242 [3] Ex parte Boedel Steenkamp 1962 (3) SA 954 (0) [4] Chisholm v ERPM 1909 TH 297 Indicate which one of the following statements is incorrect: [I] No one can be without a domicile at any time. [2] No one can have a domicile in more than one place at the same time. [3] If a person abandons his or her domicile without assuming a new domicile, the person's domicile of origin will revive. [4] The changing of a person's domicile is never accepted without proof. In which one of the following decisions did the court decide that it is within its inherent jurisdiction to compel an adult to undergo blood tests in order to determine a child's paternity? [I] Ov01992(4)SA137(C) [2] Nell v Nell 1990 (3) SA 889 (T) [3] SvL1992(3)SA713(E) [4] MvR1989(1)SA416(0) Indicate which one of the following contracts is valid: [I] Thandi is six years old. She herself, without any assistance, buys a tricycle from a dealer. [2] Thandi, with her father's assistance, buys a tricycle from a dealer. [3] Thandi's father, on her behalf, buys a tricycle from a dealer. [4] Thandi's uncle gives her a tricycle asa gift. She accepts the gifl herself, without any assistance. (2)

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Indicate which one of the following contracts is valid: [I] Sam, who is 15 years old, opens an account at a mutual bank without any assistance. [2] Ben, who is 16 years old, buys a motor car from a car dealer, without any assistance. [3] Harold, who is 17 years old, takes out a life insurance policy without any assistance. [4] John receives a bicycle from his grandmother as a gift for his eleventh birthday. He accepts the donation without any assistance. (2) Indicate which one of the following statements is correct: [I] a minor, who has concluded a contract without the assistance of his or her guardian, can claim back performance consisting of money by means of the rei vindicatio. [2] An antenuptial contract concluded by a minor without assistance, cannot be ratified by the minor after the marriage has taken place. [3] If a minor has concluded a contract with the consent of his or her guardian, the minor's guardian will incur personal (contractual) liability for the minor's contract. [4] A minor can enter into a valid agreement with another by which the latter's debt to the minor is extinguished. (2) Indicate which one of the following statements is incorrect: [I] the fact that a curator has been appointed for a deaf person, results in that person losing his or her capacity to act altogether. [2] A juristic act entered into by a mentally ill person during a lucidum intervallum (lucidinterval) is valid. [3] The capacity to act of a prodigal is similar to that of a minor. [4] A prodigal may marry without the consent of his or her curator. (2) QUESTION 2 Indicate whether the following statements are true or false: (a) According to the supporters of the nasciturus fiction legal subjectivity begins at conception.(1 ) (b) In Pinchin Vs Santam Insurance Co 1963 (2) SA 254 (W) the court decided that a child has an action to recover damages for pre-natal injuries. (1 ) (c) A presumption of death expressed in terms of the common law automatically dissolves the marriage of the missing person. (1 ) (d) Mentally ill persons follow the domicile of their curator. (1 ) www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 86

(e) The presumption of paternity will not be rebutted if the man proves that he used contraceptives when he had sexual intercourse with the child's mother. (1 ) (f) When a married woman gives birth to a child following artificial fertilisation with the semen of a third party donor, the child is always illegitimate. (1 ) (g) Both natural and adulterine children are legitimated by their parents ‘subsequent marriage.(1 ) (h) A contract of loan is an example of a unilateral contract. (1 ) (i) An infans cannot conclude any juristic act whatsoever. (j) The exceptio non adimpleticontractus can only be used by parties to reciprocal contracts.(1 ) (k) A real agreement by which a minor attempts to transfer a right to another without his or her guardian's assistance is valid.(1 ) (I) It is rebuttably presumed that minors between the ages of 7 and 14 years are accountable.(1 ) (m) A person who has been declared a major in terms of the Age of Majority Act 57 of 1972 is for all purposes regarded as having reached the age of majority.(1 ) (n) The age of majority in South African law is 18 years. QUESTION 3 (a) When does legal personality begin? (1 ) (b) Discuss the legal requirements for the beginning of legal personality. (4) (c) A's will contains the following clause: "My daughter B inherits R60 000 and her children who are alive at the date of my death, each inherits R20 000." A dies on 5 October 2001. B's third child, Z, is born on 5 November 2001. B has two other children. X and Y. (i) What do you understand by the concept nasciturus fiction? (3) www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 87

(ii) Name the two requirements for the operation of the nasciturus fiction. (2) (iii) Can the nasciturus fiction be applied in this case? Discuss with reference to authority. (4) (iv) Who are entitled to inherit from A?

QUESTION 4 (a) Thandi is a six-year-old extra-marital child. Her mother lives in Soweto, and her father in East London.Thandi lives with her father. Where is she domiciled? Discuss briefly and refer to authority for your answer. (5) (b) Anne and Ben, both unmarried, lived together for two years. When they separated, Anne was pregnant. She later gave birth to a son, John. Ben contributed towards the hospital expenses and paid maintenance for John. Anne agreed that Ben could have access to his child. However, two years after John's birth, Anne refused to allow Ben any further access to his child. Ben approaches you for advice. Advise him fully, with reference to authority, on his position. (1 5) QUESTION 5 (a) What do you understand by the following concepts? (i) obligation (ii) reciprocal contract (Also give an example of a reciprocal contract.) (iii) negotiorum gestio (b) Themba is seventeen years old. He decides to buy a second-hand car. He visits Mr Molefe, a dealer in second-hand cars. Without the assistance or consent of his guardian, Themba concludes a contract of sale with Mr Molefe. In terms of the contract, Mr Molefe sells Themba a car at the discount price of R15 000. The actual value ofthe car at the time of the conclusion of the contract is R20 000. During the negotiations Themba tries to represent himself as a www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 88

major, but it is obvious to Mr Molefe that he is dealing with a minor. On 24 March, two weeks after the car is delivered to Themba, he sells it for R12 000. He spends R8 000 of this money on a luxury lounge suite, and the remaining R4 000 he uses to pay for his lodging. He does not pay any of his debt to Mr Molefe. On 3 May, Mr Molefe institutes an action against Themba. (i) On what basis could Themba be held liable to Mr Molefe? 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. (3) (viii) Write down the amount of Themba's enrichment. (1 ) (c) List the two requirements for the application of restitutio in integrum. QUESTION 6 (a) In the case of an application for declaration of majority in terms of the Age of Majoriy Act 57 of 1972 the court must amongst other things be provided with "any other relevant information that will place the Court in a position to judge whether it is necessary or desirable in the interests of the applicant to grant the application" (s 3(g)). With reference to case law, briefly explain how the courts have interpreted this requirement.(6) (b) When is a person regarded as mentally ill for the purposes of the Mental Health Act 18 of1973? (1 ) www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 89

(c) According to the Supreme Court of Appeal (in Lange v Lange 1945 AD 332) a person is regarded as mentally ill for the purposes of private law in two instances. Name these two instances. (2) (d) If a person has been influenced by alcohol or drugs to the extent that the person does not know what he or she is doing or what the consequences of his or her juristic acts are, those acts are................... (Write down only the missing word.)

SOLUTIONS QUESTION 1 a) Partnerships are not recognised as legal subjects in our law, while trade unions, banks and universities are recognised as such (see Only Study Guide 14-1 5; Cronje DSP & HeatonJ The South AfHcan law ofpersons (1 999) (hereafter referred to as Cronje & Heaton) 7-8). The correct answer is [4]. (2) (b) In Shields v Shields 1946 CPD 242 the court decided that the mother of an unborn child could not enter into an agreement on behalf of her child that the father of the child would not be responsible for paying maintenance for the child. The court held that such anagreement was contrary to public interest and thus refused to sanction the agreement (see Only Study Guide 29). The correct answer is [2]. (2) (c) Statements [I], [2] and [4] are correct (see Only Study Guide 50). Statement [3] is incorrect, since the Domicile Act 3 of 1992 provides that no one loses his or her domicile until he or she acquired another domicile, whether by choice or by operation of law (see Only Study Guide 50; Cronje & Heaton 40). The correct answer is [3]. (2) (d) In M v R 1989 (1) SA 41 6 (0) the court decided that it is within its inherent jurisdiction to compel an adult to undergo blood tests in order to determine a child's paternity (see Only Study Guide 59; Cronje & Heaton 60-61 ; Casebook [I 71). The correct answer is [4]. (2) (e) An infans has absolutely no capacity to act and cannot conclude any juristic acts whatsoever. He or she cannot even enter into a contract that confers only rights and does not impose any duties on him or her. The contract in [I] is thus invalid. The infans cannot conclude a juristic act even with the assistance of his or her guardian. The guardian has to act for him or her and on his or her behalf. The contract in [3] is therefore valid, while the contract in [2] is invalid. An www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 90

infans cannot even accept a donation; this has to be done on his or her behalf by the court, the master, or his or her guardian. The contract in [4] is thus also invalid (see Only Study Guide 7172, Cronje & Heaton 87-88). The correct answer is [3]. (2) (f) Where a minor enters into a contract without his or her guardian's consent, and that contract imposes duties on the minor, the contract is unenforceable. The contract in [2] is thus unenforceable. A minor can conclude a contract which will improve his or her position without imposing any duties on him or her (eg a donation), without assistance. The contract in [4] is thus valid. There are certain statutory exceptions to the rule that minors may not incur contractual liability without the required assistance. One of these exceptions is that minors who have attained the age of 18 years may insure their own lives without assistance. Since Harold is 17 years old, the contract in [3] is unenforceable. Another exception to the general rule is that a minorwho has attained the age of 16 years may be a depositor with any mutual bank without the assistance of his or her guardian. Since Sam is 15 years old, the contract in [I] is unenforceable (see Only Study Guide 75- 76; Cronje & Heaton 89-91). The correct answer is [4]. (2) (g) A minor who has concluded a contract without the assistance of his or her guardian, can claim back performance consisting of money by means of a condictio (Only Study Guide 76; Cronje & Heaton 90). Statement [I] is incorrect. An antenuptial contract concluded by a minor without assistance, is void and cannot be ratified by the minor or his or her guardian after the marriage has taken place (Edelstein v Edelstein 1952 (3) SA 1 (A) - see Only Study Guide 95; Cronje & Heaton 98; Casebook [36]). Statement [2] is thus correct. If a minor concludes a contract with the consent of his or her guardian, the minor (and not the guardian) incurs contractual liability for the contract as if he or she were a major (Only Study Guide 94; Cronje & Heaton 96). Statement [3] is thus incorrect. A minor cannot without assistance enter into avalid agreement with another party by which the latter's debt to the minor is extinguished (Only Study Guide 101-1 02; Cronje & Heaton 102). Statement [4] is incorrect. The correct answer is [2]. (h) The court can appoint a curator for a person who, owing to blindness, is not capable of managing his or her own affairs. The fact that a curator has been appointed for such a person does not result in the person losing his or her capacity to act altogether. If, in the particular circumstances, the person is physically and mentally capable of managing his or her own affairs, that person can enter into a valid juristic act (Only Study Guide 117-11 8). Statement [I] is thus www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 91

incorrect. A juristic act entered into by a mentally ill person during a lucidum intervallum (lucid interval) is valid (see Only Study Guide 11 7). Statement [2] is thus correct. The capacity to act of a prodigal is similar to that of a minor (see Only Study Guide 11 8). Statement [3] is thus correct. A prodigal may marry without the consent of his or her curator (Only Study Guide 11 9). Statement [4] is correct. The correct answer is [I].

QUESTION 2 (a) According to the supporters of the nasciturus fiction legal subjectivity begins at birth (see Only Study Guide 32; Cronje & Heaton 22-23). This statement is false. (1 ) (b) In Pinchin vSantam Insurance Co 1963 (2) SA 254 (W) the court decided that a child has an action to recover damages for pre-natal injuries (see Only Study guide 29-31; Cronje & Heaton 17-1 9; Casebook [3]). The statement is true. (1 ) (c) A presumption of death expressed in terms of the common law does not automatically dissolve the marriage of the missing person. The surviving spouse has to apply to the court which expressed the presumption of death for an order dissolving the marriage (see Only Study Guide 40; Cronje & Heaton 28-29). This statement is false. (1 ) (d) The Domicile Act 3 of 1992 provides that mentally ill persons are domiciled at the place with which they are most closely connected (see Cronje & Heaton 45-46). This statement is false. (1 ) (e) The presumption of paternity will not be rebutted if the man proves that he used Contraceptives when he had sexual intercourse with the mother (see Cronje & Heaton 55). This statement is true. (1 ) (f) Section 5(1) of the Children's Status Act 82 of 1987 provides that a child procreated by means of artificial fertilisation in which the semen of a third party donor was used, is legitimate if the married woman and her husband consented to the fertilisation. A rebuttable presumption exists that both parties gave their consent (see Cronje & Heaton 62). The statement is false. (1 ) (g) Both natural children and adulterine children are legitimated by their parents' subsequent marriage (see Cronje & Heaton 81). The statement is true. (1 )

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(h) A contract of loan is an example of a multilateral contract, not a unilateral contract (Only Study Guide 68). This statement is false. (1 ) (i) An infans has absolutely no capacity to act and cannot conclude any juristic acts whatsoever. He or she cannot even enter into a contract that confers only rights and does not impose any duties on him or her. The guardian has to act for him or her and on his or her behalf (see Only Study Guide 71-72, Cronje & Heaton 87-88). This statement is true.(1 ) (j) The exceptio non adimpleti contractus is a legal remedy which can be used by a party to a reciprocal contract (Only Study Guide 78). Therefore, this statement is true.(1 ) (k) A real agreement by which a minor attempts to transfer a right to another without his or her guardian's assistance is completely invalid (Cronje & Heaton 102). Therefore, this statement is false. (1 ) (I) There is a rebuttable presumption in our law that minors between the ages of 7 and 14 are unaccountable (Only Study Guide 103; Cronje & Heaton 105). Therefore, this statement is false. (1 ) (m) A person who has been declared a major in terms of the Age of Majority Act 57 of 1972 is in terms of section 7 of the Act for all purposes regarded as having reached the age of majority (Cronje & Heaton 108). This statement is true. (1 ) (n) The age of majority in South African law is 18 years (Cronje & Heaton 106). This statement is true. (1 ) QUESTION 3 (a) Legal personality begins at birth (see Cronje & Heaton 9). (1) (b) The legal requirements for the beginning of legal personality are the following (Cronje &Heaton 9): The birth must be fully completed, that is there must be a complete separation between the body of the mother and the fetus. For birth to be completed it is not required that the umbilical cord be severed. The child must be alive after separation even if only for a short period. Legal personality is not obtained by a stillborn fetus or a fetus which dies during birth. (4) (c) This question deals with the application of the nasciturus fiction in the field of testate succession (see, in this regard, Only Study Guide 25-28; Cronje & Heaton 12-17; Casebook [I]).

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(i) If a situation arises where it would have been to the advantage of the nasciturus if he or she had already been born, the law protects hisor her potential interests. This is done by the implementation of the fiction that the nasciturus is regarded as having been born at the time of his or her conception whenever his or her interests are at stake. If it appears in a specific case that, had the nasciturus already been born, he or she would have had certain claims or rights, the legal position is kept in abeyance until the nasciturus does in fact become a person, or until it becomes certain that no person has developed from the nasciturus. Ifthe child is indeed born alive, he or she acquires the rights that have been kept in abeyance. (3) (ii) The requirements for the application of the fiction are: The fetus must already have been conceived at the time when the benefit would have accrued to him or her. The child must subsequently be born alive. (2) (iii) The nasciturusfiction is also applied in the law of succession. In the case of testate succession (ie in cases where the testator leaves behind a valid will), effect must be given to the provisions of the will. If the testator clearly intended that unborn children should not inherit, this intention is simply carried out. Sometimes the testator's intention is not clear, as happened in the question under discussion. In the prescribed case of Ex parte Boedel Steenkamp 1962 (3) SA 954 (O), the testator's will contained a provision similar to the one in the question under discussion. In this case the court decided that an unborn child who had been conceived before the testator's death but who was born after his death, was entitled to inherit. The reason for the decision was that the word "alive" (in die /ewe is) was not enough to rebut the strong natural presumption that the testator intended to include the nasciturus. Students were also expected briefly to refer to the provisions of the Law of Succession Amendment Act 43 of 1992, that inserted section 2D(I)(c) into the Wills Act 7 of 1953. This amendment confirms the operation of the nasciturus fiction in the field of testate succession. The effect of the provision is that benefits allocated in a will to the children of a person, or to the members of a class of persons, also includes children (or members of the class) who have already been conceived at the time of the testator's death and are later born alive, unless an intention to the contrary is evident from the will. (4) (iv) If one relies on the Steenkamp case, it is clear that the testator's daughter (B) will be entitled to inherit R60 000 from him, and her children (X , Y and Z) R20 000 each. (1 ) QUESTION 4 (a) Section 2(1) of the Domicile Act 3 of 1992 provides that a person who is incapable of acquiring a domicile of choice in terms of section 1 of the Act (ie inter alia a person below the www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 94

age of 18 years) will be domiciled at the place to which he or she is most closely connected. Section 2(2) of the Domicile Act contains the rebuttable presumption that if a child has his or her home with one or both of his or her parents, it is presumed that this parental home is the child's domicile. "Child" means any person below the age of 18 years who does not have the status of a major. "Parents" include the adoptive parents of a child, and also the parents of a child who are not married to each other (see Only Study Guide 52, Cronje & Heaton 44-45). Thandi is thus domiciled in East London. (5) (b) In this question you had to discuss the question whether the father of an extra-marital child has a right of access to his child (Only Study Guide 63, 64; Cronje & Heaton 66-72,78-80; Casebook [24], [25], [27]). QUESTION 5 (a) (i) An obligation is a juristic bond in terms of which the party or parties on the one side have a right to performance and the party or parties on the other side have a duty to render performance (Only Study Guide 68). (2) (ii) A reciprocal contract is a multilateral contract in terms of which performance is promised on the one side in exchange for performance on the other side. An example of a reciprocal contract is a contract of sale (Only Study guide 68). (2) (iii) Negotiorum gestio refers to the liability incurred by a minor's parent or guardian against a third party if the minor has incurred expenses for necessaries (eg food) in the parent's absence. It can also be defined as managing someone else's affairs to his or her advantage without his or her knowledge (see Only Study Guide 7; Cronje & Heaton 96). (2) (b) See in this regard Only Study Guide 87-91; Cronje & Heaton 95-96; Casebook [36] (i) The basis of liability is undue enrichment. Themba cannot be held delictually liable on the basis of the misrepresentation, since it was obvious to Mr Molefe that he cannot be older than sixteen (one of the requirements for delictual liability are thus not present). (2) (ii) Undue enrichment takes place if a person gains a patrimonial benefit at the cost of another, without there being a recognised legal ground justifying the transfer of the benefit. (2) (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 v Divine Hall & Co. (2)

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(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 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. (3) (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 Themba will thus be liable for the R8 000 spent on the lounge suite (luxury item that is still intact), as well as for the R4 000 spent on his lodging (necessary item). (3) (viii) The amount of Themba's enrichment is R12 000. (1 ) (c) The requirements for restitutio in integrum are that the contract should have been concluded with the guardian's assistance (or ratified after it was initially concluded without the necessary consent), and it should have been to the minor's prejudice at the moment it was made (Only Study Guide 98; Cronje & Heaton 99-1 00). (2) QUESTION 6 (a) See in this regard Only Study Guide 109-1 10; Cronje & Heaton 107-109; Casebook [43] & [44]. In Ex parte Akiki 1925 OPD 21 1 the court followed a strict approach, requiring pressing necessity before an application of this nature could be granted. In Exparte Botes 1978 (2) SA 400 (0) the court held that a measure of desirability must be proved, and that it is not sufficient to show that the applicant is able to control his or her own affairs, or that he or she wants to conclude a transaction but cannot do so as a minor. In Exparte Smith 1980 (2) SA 533 (0) the court pointed out that, since the effect of the order is much wider than the concession which the authority could earlier grant, applications like these should be handled with caution. Each application should be judged on its own merits. (6) www.btsclearning.com For more information on other modules assistant tutorials, bookings, revision class etc please contact [email protected] or call on 012 323 0662/071 246 8412 96

(b) A person is regarded as insane for the purposes of the Mental Health Act 18 of 1973 if he or she is mentally ill to such a degree that it is necessary that he or she be detained, supervised, controlled and treated (see Only Study Guide 11 7). (1 ) (c) According to the Supreme Court of Appeal (in Lange v Lange 1945 AD 332) a person is regarded as insane for the purposes of private law in the following two instances: O if the person cannot understand what he or she is doing or what the legal consequences of his or her actions are O where the person does, in fact, realise what the legal consequences of his or her actions are but is motivated by delusions which are a result of his or her mental illness (see Only Study Guide 11 6) (2) (d) The missing word is "void"

PAST EXAM PAPERS ON LONG QUESTIONS WITH ANSWERS

Mrs Smith, an expectant mother, was injured in a motor vehicle accident. Her child was subsequently born with cerebral palsy. As a result of the brain damage the child will never be able to take care of herself. The accident was caused by the sole negligence of the driver of the other motor vehicle. (a)

What do you understand by the nasciturus fiction?

(3)

If a situation arises where it would have been to the advantage of the nasciturus if he or she had already been born, the law protects his or her potential interests. This is done by the implementation of the fiction that the nasciturus is regarded as having been born at the time of his or her conception whenever his or her interests are at stake. If it appears on a specific case that, had the nasciturus already been born, he or she would have had certain claims or rights, the legal position is kept in abeyance until the nasciturus does in fact become a person, or until it becomes certain that no person has developed from the nasciturus. If the child is indeed born alive, he or she acquires that rights that have been kept in abeyance. (b)

Name the two requirements for the operation of the nasciturus fiction. (2)

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(c)

The fetus must already have been conceived at the time when the benefit would have accrued to him or her. The child must subsequently be born alive.

Can the nasciturus fiction be applied in this case? Discuss with reference to authority. (5) It is possible that somebody's negligence may cause injuries to the nasciturus before birth. In Pinchin v Santam Insurance, where the facts were similar to the question under discussion, the court had to answer the question whether a person has an action in respect of injury inflicted on him or her while he or she was still a fetus in his or her mother's womb. In this case the court concluded that a fetus, if negligently injured before birth, may claim damages from the wrongful party.

In Pinchin v Santam Insurance the claim was unsuccessful since it was not proved that the cerebral palsy of the fetus had been caused by the injury sustained by the mother. Should it be proved that Mrs Smith's child's cerebral palsy is the result of the injuries sustained by Mrs Smith during the accident, the nasciturus fiction will be applicable to this case. 2.

Mrs X has successfully applied for a presumption of death order with regard to her husband who has been missing for 20 years. What will the situation be if it becomes clear that Mr X did not die? Explain the position in a few sentences. (5) Since the presumption of death order is rebuttable, the court which expressed the presumption can set aside its original order if, on the basis of further evidence, it becomes clear that the missing person did not in fact die. This can be done on the application of any interested person or the missing person himself or herself. In such a case he or she may bring an action for enrichment against those who have been enriched at his or her expense as a result of the presumption of his or her death.

3.

Vambu, a citizen of Mozambique, is an illegal immigrant in South Africa. He has lived and worked in Hillbrow for the past two years. He wants to acquire a domicile of choice in Hillbrow. What effect does Vambu's status as an illegal immigrant have on his capacity to acquire a domicile of choice in Hillbrow? Advise him. (4)

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The residence relied on for the acquisition of a domicile of choice must be lawful. Illegal immigrants can therefore not acquire a domicile of choice in South Africa even if they have the intention to settle permanently because their intention is unlawful. Persons who are deported from South Africa thus also loose their domicile in this country even if they have the intention to return because their return would be unlawful. Where prohibited immigrants are, however, openly permitted by the authorities to reside in a country, they may acquire a domicile of choice in that country. In this case, Vambu will not be able to acquire domicile in South Africa. 4.

Mr and Mrs Nkosi are married. During their marriage, Mrs Nkosi has an affair with Mr Skosana, as a result of which a child is born. With reference to authority, advise Mr Nkosi fully on how he should go about to rebut the presumption pater est quem nuptiae demonstrant. (16) In terms of the maxim pater est quem nuptiae demonstrant Mr Nkosi will be liable for the maintenance of the child as our law recognises the rebuttable presumption that a child is the child of the man to whom the mother is married. This presumption is rebuttable however: either of the spouses can prove that the husband is not the father of the child. This can be done, for example, by proving that the husband is impotent or sterile. The fact that the spouses did not indulge in sexual intercourse during the period of conception could also be sufficient proof that the husband is not the father of the child.

5.

What do you understand by the following concepts? (a)

multilateral contract A multilateral contract is a contract in terms of which more than one party undertakes to render a performance. An example of a multilateral contract is a contract of loan.

(b)

undue enrichment Undue enrichment takes place where one person gains a patrimonial benefit at the cost of another without there being a recognised legal ground justifying the transfer of the benefit.

(c)

negotiorum gestio

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Negotiorum gestio refers to the liability incurred by a minor's parent or guardian against a third party if the minor has incurred expenses for necessaries (e.g. food) in the parent's absence. It can also be defined as managing someone else's affairs to his or her advantage without his or her knowledge. 6.

Gugu, a seventeen year old minor, concludes a contract with a certain Mrs Ndlovu, an adult, to rent a bachelor flat. In terms of the contract Gugu has to pay Mrs Ndlovu the exorbitant amount of R4 000,00 per month rental for the flat. Gugu's father was unaware of this contract. When Gugu later had difficulty in paying the exorbitant rental, she phoned her father and told him about the contract, whereupon he gave her money to pay six months' rental. (a)

What do you understand by the concept restitutio in integrum? (1) A prejudicial contract concluded by a minor with the assistance of his or her guardian, can be set aside by means of restitutio in integrum. Restitutio in integrum literally means return to the previous condition.

(b)

List the two requirements for the application of this remedy.

(2)

The requirements for this remedy are the contract should have been concluded with the guardian's assistance, and it should have been to the minors prejudice at the moment is was made. (c)

Can the abovementioned contract be set aside by means of the restitutio in integrum? Answer yes or no and explain your answer in two sentences. (3) Yes. A minor who contracts without the assistance or consent of his or her guardian is not liable in terms of that contract. However, Gugu's father tacitly ratified her contract by paying six month's rental. The contract is thus completely valid retrospectively. Furthermore, since an exorbitant rental was payable, it was to Gugu's detriment at the moment it was made.

(d)

Is restitutio in integrum available to a minor who fraudulently represented himself or herself as a major? Answer yer or no. (1)

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No, the remedy is not available to a minor who misrepresented himself or herself as a major or who, in some other fraudulent manner, persuaded the other party to contract with him or her. (e)

What is the purpose of restitutio in integrum?

(1)

The purpose of the remedy is to restore the status quo ante. This means that complete restitution from both sides must take place, placing both parties in the position they would have been in had they never entered into the contract. (f)

What can be recovered by this remedy?

(3)

Each party must return everything received under the contract, as well as the proceeds or any advantage derived from the contract, and must also compensate the other party for any loss suffered as a result of the contract. (g)

Who can seek this remedy?

(3)

The minor can apply for restitution himself or herself before he or she attains majority, or the guardian may apply on the minor's behalf. If the guardian fails to do so, a curator ad litem may be appointed to assist the minor. The minor may also await majority and then institute the action on his or her own, but in this event he or she has to consider the possibility of prescription of the claim. 7.

Mr Molefe owes Peter, a 17-year old minor, R1 000,00 for a painting that Peter painted for him. Without his parent or guardian's assistance, Peter concludes an agreement with Mr Molefe in terms of which Peter extinguishes Mr Molefe's debt to him. Is this agreement valid. Briefly explain your answer. (2) A minor cannot without assistance enter into a valid agreement with another by which the latter's debt to the minor is extinguished. Peter's agreement is thus invalid.

8.

Rachel is 16 years old. Rachel owes Mrs King R500 for clothes she bought from her. Without her parent or guardian's assistance, Rachel concludes an agreement with Mrs King in terms of which Rachel's debt to Mrs King is extinguished. Is this agreement valid. Explain your answer. (2)

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A minor can without assistance enter into a valid agreement with someone by which the minor's debt is extinguished. Rachel's agreement is thus valid. 9.

The following statements are legal principles laid down in cases dealing with a declaration of majority. Name the case to which the following legal principles apply. (a)

A strict approach should be followed. Pressing necessity should be present before applications of this nature can be granted. Ex parte Akiki

(b)

The court should under Act 57/1972 be even more cautious that before, since, in terms of section 7, the effect of an order in terms of the Act is much wider than the concession which the authority could grant earlier. Each application should be judged on its own merits. Ex parte Smith

(c)

The court will only grant the application if a measure of desirability is proven by the applicant. It is not sufficient to show that the applicant is able to control his or her own affairs, or that he or she wants to conclude a transaction but cannot do so as a minor. Ex parte Botes

10.

What do you understand by the concept "emancipation"?

(2)

Emancipation refers to the freedom to contract independently granted to the minor by his or her guardian. 11.

How does deafness influence a person's capacity to act? Briefly explain your answer. (5) The court can appoint a curator bonis for anyone who, owing to some or other physical defect, for example deafness, is not capable of managing his or her own affairs. The fact that a curator has been appointed for this person does not result in the individual losing his or her capacity to act altogether.

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If, at a given moment, the person is physically and mentally capable of managing is or her own affairs, he or she can enter into valid juristic acts. If the person is not physically and mentally capable or managing his or her own affairs, the curator's assistance is needed while performing juristic acts. 12.

When does legal personality begin?

(1)

Legal personality begins at birth 13.

Discuss the legal requirements for the beginning of legal personality. (4) The legal requirements for the beginning of legal personality are the following: -

-

14.

The birth must be fully completed, that is there must be a complete separation between the body of the mother and the fetus. For birth to be completed it is not required that the umbilical cord be severed. The child must be alive after separation even if only for a short period. Legal personality is not obtained by a stillborn fetus or a fetus which dies during birth.

A's will contains the following clause: "My daughter B inherits R60 000 and her children who are alive at the date of my death, each inherits R20 000". A dies on 5 October 2001. B's third child Z is born on 5 November 2001. B has two other children X and Y.

(a)

Can the nasciturus fiction be applied in this case? Discuss with reference to authority. (4) The nasciturus fiction is also applied in the law of succession. In the case of testate succession, effect must be given to the provisions of the will. If the testator clearly intended that unborn children should not inherit, this intention is simply carried out. Sometimes the testator's intention is not clear, as happened in the question under discussion.

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In the prescribed case of Ex parte Boedel Steenkamp 1962 (3) SA 954 (O), the testator's will contained a provision similar to the one in the question under discussion. In this case the court decided that an unborn child who had been conceived before the testator's death but who was born after his death, was entitled to inherit. The reason for the decision was that the word "alive" was not enough to rebut the strong natural presumption that the testator intended to include the nasciturus. The provisions of the Law of Succession Amendment Act 43 of 1992, that inserted section 2D(I)(c) into the Wills Act 7 of 1953 confirms the operation of the nasciturus fiction in the field of testate succession. The effect of the provision is that benefits allocated in a will to the children of a person, or to the members of a class of persons, also includes children who have already been conceived at the time of the testator's death and are later born alive, unless an intention to the contrary is evident from the will. (b)

Who are entitled to inherit from A?

(1)

If one relies on the Steenkamp case, it is clear that the testator's daughter (B) will be entitled to inherit R60 000 from him, and her children (X , Y and Z) R20 000 each. 15.

Thandi is a six-year-old extra-marital child. Her mother lives in Soweto, and her father in East London. Thandi lives with her father. Where is Thandi domiciled? Discuss briefly and refer to authority for your answer. (5) Section 2(1) of the Domicile Act 3 of 1992 provides that a person who is incapable of acquiring a domicile of choice in terms of section 1 of the Act (ie inter alia a person below the age of 18 years) will be domiciled at the place to which he or she is most closely connected. Section 2(2) of the Domicile Act contains the rebuttable presumption that if a child has his or her home with one or both of his or her parents, it is presumed that this parental home is the child's domicile. "Child" means any person below the age of 18 years who does not have the status of a major. "Parents" include the adoptive parents of a child, and also the parents of a child who are not married to each other. Thandi is thus domiciled in East London.

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16.

Anne and Ben, both unmarried, lived together for two years. When they separated, Anne was pregnant. She later gave birth to a son, John. Ben contributed towards the hospital expenses and paid maintenance for John. Anne agreed that Ben could have access to his child. However, two years after John's birth, Anne refused to allow Ben any further access to his child. Ben approaches you for advice. Advise him fully, with reference to authority, on his position. (15) In B v S the appellate division held that since access is an incident of parental authority, and since the father of an extra-marital child has no parental authority in respect of that child, the father has no inherent right of access to his child. If, at all, there is a question of an inherent entitlement, it is that of the child, if it is in his or her best interests. The court rejected the decision in Van Erk v Holmer and confirmed the full-bench decision in B v P. In terms of the Natural Fathers of Children Born out of Wedlock Act 86 of 1997 the unmarried father could apply for access. He would have succeeded only if he could prove that access would be in the best interests of the child. The court could make its order subject to whatever conditions it sees fit. The court had to take certain factors into account when considering the application for access, for example the relationship between the father and the child’s mother, in particular whether either party has a history of violence against or abuse of each other or the child. Before the commencement of the Children’s Act, the legal position amounted to unfair discrimination against both the extra-marital child and his or her father, and was thus in contravention of section 9 of the Constitution. Position after the commencement of the Children’s Act 38 of 2005 on 1 July 2007: The Children’s Act repealed the Natural Fathers of Children Born out of Wedlock Act. In terms of the Children’s Act an unmarried father automatically has parental responsibilities and rights if -

at the time of the child’s birth he is living with the mother in a permanent lifepartnership, or regardless of whether he has lived or is living with the mother, consents to be identified as the child’s father, and

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-

contributes to or has attempted in good faith to contribute to the child’s upbringing for a reasonable period, and contributes or has attempted in good faith to contribute towards the child’s maintenance for a reasonable period.

This section applies regardless of whether the child was born before or after the commencement of the Act. In the question, Ben would probably have automatic parental responsibilities and rights in respect of John. 17.

What do you understand by the following concepts? (a)

obligation

(2)

An obligation is a juristic bond in terms of which the party or parties on the one side have a right to performance and the party or parties on the other side have a duty to render performance. (b)

reciprocal contract

(2)

A reciprocal contract is a multilateral contract in terms of which performance is promised on the one side in exchange for performance on the other side. An example of a reciprocal contract is a contract of sale (c)

negotiorum gestio

(2)

Negotiorum gestio refers to the liability incurred by a minor's parent or guardian against a third party if the minor has incurred expenses for necessaries (eg food) in the parent's absence. It can also be defined as managing someone else's affairs to his or her advantage without his or her knowledge 18.

Themba is seventeen years old. He decides to buy a second-hand car. He visits Mr Molefe, a dealer in second-hand cars. Without the assistance or consent of his guardian, Themba concludes a contract of sale with Mr Molefe. In terms of the contract, Mr Molefe sells Themba a car at the discount price of R15 000. The actual value ofthe car at the time of the conclusion of the contract is R20 000. During the negotiations Themba tries to represent himself as a major, but it is obvious to Mr Molefe that he is dealing

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with a minor. On 24 March, two weeks after the car is delivered to Themba, he sells it for R12 000. He spends R8 000 of this money on a luxury lounge suite, and the remaining R4 000 he uses to pay for his lodging. He does not pay any of his debt to Mr Molefe. On 3 May, Mr Molefe institutes an action against Themba. (a)

On what basis could Themba be held liable to Mr Molefe? Explain briefly. (2) The basis of liability is undue enrichment. Themba cannot be held delictually liable on the basis of the is representation, since it was obvious to Mr Molefe that he cannot be older than sixteen (one of the requirements for delictual liability are thus not present).

(b)

What do you understand by the concept "undue enrichment"? (2) Undue enrichment takes place if a person gains a patrimonial benefit at the cost of another, without there being a recognised legal ground justifying the transfer of the benefit.

(c)

What do you understand by the so-called "benefit theory"? Which decision introduced this theory into our law? (2) 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 v Divine Hall & Co.

(d)

Does the benefit theory still form part of our law? Explain briefly with reference to authority. (3) 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 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.

(e)

At which moment should the extent of the minor's enrichment be calculated? What is that date in the question under discussion? (2)

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The moment on which the calculation must be made is litis contestatio. In the question under discussion litis contestatio took place on 3 May. (f)

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) 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.

(g)

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. (3) 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 Themba will thus be liable for the R8 000 spent on the lounge suite (luxury item that is still intact), as well as for the R4 000 spent on his lodging (necessary item).

(h)

Write down the amount of Themba's enrichment. (1 ) The amount of Themba's enrichment is R12 000.

19.

List the two requirements for the application of restitutio in integrum. (2) The requirements for restitutio in integrum are that the contract should have been concluded with the guardian's assistance (or ratified after it was initially concluded without the necessary consent), and it should have been to the minor's prejudice at the moment it was made.

20.

In the case of an application for declaration of majority in terms of the Age of Majoriy Act 57 of 1972 the court must amongst other things be provided with "any other relevant information that will place the Court in a position to judge whether it is

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necessary or desirable in the interests of the applicant to grant the application" (s 3(g)). With reference to case law, briefly explain how the courts have interpreted this requirement.(6) In Ex parte Akiki 1925 OPD 21 1 the court followed a strict approach, requiring pressing necessity before an application of this nature could be granted. In Exparte Botes 1978 (2) SA 400 (0) the court held that a measure of desirability must be proved, and that it is not sufficient to show that the applicant is able to control his or her own affairs, or that he or she wants to conclude a transaction but cannot do so as a minor. In Exparte Smith 1980 (2) SA 533 (0) the court pointed out that, since the effect of the order is much wider than the concession which the authority could earlier grant, applications like these should be handled with caution. Each application should be judged on its own merits. 21.

When is a person regarded as mentally ill for the purposes of the Mental Health Act 18 of 1973? (1 ) A person is regarded as insane for the purposes of the Mental Health Act 18 of 1973 if he or she is mentally ill to such a degree that it is necessary that he or she be detained, supervised, controlled and treated.

22.

According to the Supreme Court of Appeal (in Lange v Lange 1945 AD 332) a person is regarded as mentally ill for the purposes of private law in two instances. Name these two instances. (2) According to the Supreme Court of Appeal (in Lange v Lange 1945 AD 332) a person is regarded as insane for the purposes of private law in the following two instances:

23.

-

if the person cannot understand what he or she is doing or what the legal consequences of his or her actions are

-

where the person does, in fact, realise what the legal consequences of his or her actions are but is motivated by delusions which are a result of his or her mental illness

If a person has been influenced by alcohol or drugs to the extent that the person does not know what he or she is doing or what the consequences of his or her juristic acts

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are, those acts are ................... (Write down only the missing word.) (1 ) The missing word is "void" 24.

In Pinchin v Santam Insurance Co Ltd 1963 (2) SA 254 (W) it was decided that a child does have an action to recover damages for pre-natal injuries. Authors have different viewpoints on the applicability of the nasciturus fiction in the field of the law of delict. What are the views of the following authors on this issue?: (a)

Joubert

(4)

Some authors, such as Joubert are of the opinion that it is unnecessary to invoke the nasciturus fiction under circumstances like these. He argues that in the Pinchin case the nasciturus fiction was applied to a case in which it was never used at common law and for which it was never intended. At common law it was applied in cases relating to succession and to the status of the child. The question which arose in the Pinchin case could have been solved without bringing the nasciturus fiction into the issue, since one could argue that the defect from which the child suffers after birth was caused by the action of the driver of the car before the child's birth. The fact that the defect manifests itself only after birth makes no difference: the child is now a person who suffers from a defect caused by the delict committed by the driver of the car. According to Joubert it is unnecessary to base the child's action for damages on the nasciturus fiction (b)

Boberg

(4)

Boberg, on the other hand, argues that the nasciturus "rule" should be applied to award an action for prenatal injury. The child does not suffer damage only at birth, but simply continues to suffer the damage which he or she sustained before birth. When the child began to suffer damage it was not a person, and therefore the nasciturus "rule" has to be applied to give an action for prenatal injury 25.

At which moment does legal subjectivity begin according to the supporters of the nasciturus fiction and the nasciturus rule respectively? (2)

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According to the supporters of the nasciturus fiction legal subjectivity begins only at birth. According to the supporters of the nasciturus rule legal subjectivity already begins at conception. 26.

Mr X has been missing for 10 years since the light aeroplane in which he was travelling disappeared without a trace off the Natal coast. Mrs X has trouble administering her husband's large estate. She applies for a presumption of death with regard to her husband, but her application is unsuccessful. Advise her on possible solutions to her problem. (5) If the court refuses to express a presumption of death it may nonetheless order that the missing person's property be divided among his or her heirs. On occasion, the courts order that the heirs must provide sufficient security for return of the property should the missing person reappear. In In re Kannemeyer (1899) 16 SC 407, K had been missing for 28 years. Because there was insufficient evidence of death the court merely ordered a division of his estate subject to the provision of. If the court refuses to express a presumption of death it may appoint a curator bonis to administer the missing person's affairs.

27.

A, who has been domiciled in South Africa for the past 30 years, leaves the country with the intention never to return. He spends three weeks in Australia whilst deciding where to settle permanently. Where will he be domiciled during this period? Explain your answer briefly with reference to authority. (4) In the past, a person's domicile of origin revived if the person abandoned his or her domicile of choice without acquiring a new domicile. This position has now been changed by the Domicile Act 3 of 1992. The Domicile Act provides that no person will lose his or her domicile until he or she has acquired a new domicile, whether by choice or by operation of law, and, notwithstanding any law or the common law, no person's domicile of origin will revive except within the meaning of sections 1 or 2 (s 3(2). A will thus be domiciled in South Africa until he has acquired a new domicile of choice.

28.

Anne and Ben, both unmarried, lived together for two years. When they seperated, Anne was pregnant. She later gave birth to a son, John. Ben contributed towards the hospital expenses and paid maintenance

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for John. Anne agreed that Ben could have access to his child. However, two years after John's birth, Anne refused to allow Ben any further access to his child. Ben approaches you for advice. Advise him fully, with reference to authority, on his position. (16) In F v L 1987 (4) SA 525 (W), the court decided that a father does not acquire parental authority over his extra-marital child and, since access is a component of parental authority, the father does not have an inherent right of access to that child. In B v P 1991 (4) SA 113 (T), the full bench of the Transvaal Provincial Division accepted the decision in F v L. The court added that the father may apply for an order granting him access to his child. He must then prove on a balance of probabilities that such an order will be in the best interests of the child, and that the order will not unduly interfere with the mother's right of custodyIn Van Erk v Holmer 1992 (2) SA 636 (W), the Witwatersrand Local Division held that the time had arrived for our courts to recognise the inherent right of access of the natural father of an extra-marital child. The acknowledgement of such a right is justified by considerations of justice, fairness, reasonableness and public policy. The access right should be denied only if it would be contrary to the best interests of the child. In B v S 1995 (3) SA 571 (A), the Supreme Court of Appeal held that since access is an incident of parental authority, and since the father of an extra-marital child has no parental authority in respect of that child, the father has no inherent right of access to his child. If, at all, there is a question of an inherent entitlement, it is that of the child, if it is in his or her best interests. The court rejected the decision in Van Erk v Holmer and confirmed the full bench decision in B v P. The Supreme Court of Appeal added that if the parents of an extra-marital child cannot agree on whether access would be in the best interests of the child and they are compelled to go to court, it seems just and equitable that the court should, inter alia, take the following into consideration: -

the degree of commitment which the father has shown towards the child the degree of attachment which exists between the father and the child the reasons of the father for applying for the order

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whether or not access is granted is not dependent on the legitimacy of the child, as it used to be in common law, but that each case depends wholly on the welfare of the child. It therefore is the child's right to have access, or to be spared access, and not the mother's or father's right. In terms of the Natural Fathers of Children Born out of Wedlock Act 86 of 1997 the unmarried father may apply for access. He will succeed only if he can prove that access will be in the best interests of the child. The court must consider certain factors, such as the relationship between the child's mother and his or her natural father, and the attitude of the child, when evaluating the application. The existing legal position amounts to unfair discrimination against both the extra-marital child and his or her father, and is thus in contravention of section 9 of the Constitution of the Republic of South Africa 108 of 1996

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