LAW OF PERSONS

Question 1

Two cases that highlight the significance of lawful presence:

Answer 1

Van Rensburg v Ballinger- establishes that an illegal immigrant who is openly permitted by authorities to reside in SA can acquire domicile by choice.
Alam v Minister of Home Affairs-ruled that a person who’s application for refugee status is under consideration by the authorities is considered to be lawfully present

Question 2

An example of a case where clear intention of not wanting to leave the country is valid for domicile of choice

Answer 2

Eilon v Eilon

Question 3

If a pregnant woman is married, only her consent is required in order for her to terminate her pregnancy after 20 weeks of gestation?

Answer 3

False, the Choice on Termination of Pregnancy act a medical practitioner, after consulting another medical practitioner will have to consent.

Question 4

The best interests of the child principle is of paramount importance in every matter concerning a child. This means the most important factor to consider and that S 28(2) cannot be limited under any circumstances.

Answer 4

False
No right in the Bill of Rights is absolute
All rights can be limited by s36
S v M merely one of the factors to be considered.

Question 5

Two people say they are living in a permanent life partenrship, their sons name may be double barrelled.

Answer 5

False
The Births and Deaths Registration Act states otherwise

Question 6

You may alter your sex description on your birth certificate?

Answer 6

True
Under S 28A of the Births and Deaths Registration Act

Question 7

Presumption of death granted under common law does not automatically terminate the marriage of the missing person

Answer 7

True
S1 of Dissolution of Marriages on Presumption of Death Act

Question 8

A minor concludes a contract with parental consent and pays the money. Minor can claim delivery.

Answer 8

False
Valid contract must use contractual remedy of specific performace

Question 9

An SA domiciled man marries a Belgium domiciled woman without a antenuptial contract. They settle in Australia after they are married. They are married in the community of property, according to english law

Answer 9

False
Determined by lex loci domicilii of husband which is SA law
Frankels Estate v Master

Question 10

The importance of domicile of origin is that it revives when domicile of choice expires

Answer 10

False
According to Domicile Act, domicile of origin no longer revives, merely a persons first domicile

Question 11

Minor concludes a contract without parental consent. He has to pay installments but can rely on restitutio integrum to avoid having to make payment.

Answer 11

False
For restitutio integrum, contract must be valid from conclusion
No parental assistance so not valid

Question 12

Requirements that S1 of the Domicile Act 3 of 1992 states have to be met in order to establish a domicile of choice

Answer 12

Physical presence
Lawful presence
Intention to settle for indefinite period of time

Question 13

Categories for people who obtain domicile by operatation of law

Answer 13

Persons under 18 with minority status
Persons over 18 without mental capacity to exercise domicile of choice

Question 14

Fathers parental responsibilities with intention to be in childs life

Answer 14

Chapter 18 of Childrens Act identifies parental responsibilities and rights as: guardianship, care, contact, maintenance
Guardianship s(18) :administering and safe guarding childs property and interests, giving or refusing consent to childs marriage, adoption, departure or removal from RSA.
Care(s1): providing place to live, healthy living conditions, safeguarding well being.
Contact: (s1): maintaining personal relationship
Maintenance: s 21(1)(b) of Childrens Act provide that biological father of child who is not married to mother of child or in permanent life partnership can obtain PRR’s if he:
consents to being identified or applies in terms of s26 to be identified as father or pays damages in terms of customary law
contributes or attempts to contribute in good faith to childs upbringing for reasonable period
and contributes or attempts to contribute in good faith towards expenses in terms of maintenance of child for reasonable period
Mustnt set bar too high when comparing way in which married father acquires PRRs
According to KLVC v SDI, he will automatically acquire PRRs if he demonstrates all these
Apply to case

Question 15

Nascitarus fiction if a person is damaged in womb

Answer 15

In situation where it would have been to the advantage of nascitarus fiction that child had already been born, law protects interests.
If child is born alive, they acquire those rights
As in Pinchin v Santam insurance, court concluded that if fetus was negligently injured before birth, may claim damages from wrongful party
In this case claim was unsuccessful though because it was not direct result from injury sustained by mother

Question 16

Two requirements for operation of nascitarus fiction

Answer 16

Fetus must have already been conceived at the time when benefit would have accrued
Child must be born alive

Question 17

If someone is presumed dead by order, what will happen if person is in fact not dead

Answer 17

It is a rebuttable presumption, order may be set aside, may be an action for enrichment if anyone was enriched in result of the presumption of persons death.

Question 18

Someone cheats on husband, gets child, What is husbands responsibilities?

Answer 18

In terms of maxim pater est quem nuptiae demonstrant her husband will be liable for maintenance of child our law recognises rebuttable presumption that child is child of man to whom mother is married

Question 19

Multilateral contract

Answer 19

contract in terms of which more than one party undertakes a performance, such as contract of loan

Question 20

undue enrichment

Answer 20

one person gains patrimonial benefit at the cost of another without legal ground justifying the benefit

Question 21

negotorium gestio

Answer 21

liability incurred by minors parent or guardian against a third party if minor has incurred expenses for necessities in parents absence

Question 22

Restitutio in integrum

Answer 22

Prejudicial contract concluded by a minor with assistance of his/her guardian, can be set aside in terms of restitutio in integrum, must return to previous condition.

Question 23

Two requirements for application of this remedy

Answer 23

Contract must have been concluded with guardians assistance
should have been prejudicial at the moment it was made

Question 24

Puprpose of restitutio in integrum

Answer 24

Return parties to their previous conditions

Question 25

What can be recovered under restitutio integrum

Answer 25

Everything received under the contractW

Question 26

Who can seek the remedy of restitutio integrum

Answer 26

Minor before they gain majority, or guardian on minors behalf
Curator ad litem may be appointed

Question 27

Termination of pregnancy 13th to 20th week unless:

Answer 27

Risk of injury to womans physical or mental health
Risk that fetus will suffer severe physical or mental abnormality
pregnancy result of rape or incest
continued pregnancy will affect social or economic circumstances of woman