Q and A

Question 1

Aspect of parental responsibilities and rights. If a biological mother is a minor (under
18yo) does the biological mother’s guardian also receive guardianship or does the
father have full guardianship if he fulfills the requirements and the biological mother
is a co-holder and is only responsible for care and contact?
What happens if the mother (who is a minor) is married? Who holds guardianship?

Answer 1

If a child (a woman) has a baby, and that woman (the mother) is herself a child (under age
of 18), then the first thing we need to determine is: does the father qualify for full parental
responsibilities and rights? (S21 requirements) If he does – then he will have full parental
responsibilities and rights, will have guardianship, as well as care and contact and the
obligation of maintenance and the mother who is a minor will not have guardianship. *If
you still have a guardian, you cannot be a guardian.
So, the mother will then share care and contact with the father as well as the obligation of
maintenance. And when she turns 18, then she will become a co-guardian along with the
father, automatically.
If the father does not qualify for guardianship, (both mother and father = minors), mother’s
guardian will have guardianship over the child. The mother will still have care and contact,
obligation to maintain. If mother cannot maintain, obligation will move up to her parents
or guardians, but her guardian will have guardianship over the child. And when she turns
18 (when she no longer has a guardian) then she will automatically acquire guardianship
over her child.
Cannot be married and be a minor. If you get married, you gain majority status. Mother
will then be guardian.

Question 2

When it comes to a contract with a minor or an infans with a major, can only the
minor or the infans claim cancellation, or can the major as well?

Answer 2

Remember: cancellation is a contractual remedy
Valid contract: either party can rely on a contractual remedy. If it’s a valid contract (either
with infans or minor):
1. Claim specific performance.
2. If specific performance is not available – major can rely on cancellation.
3. In both cases: damages

Question 3

Discrepancy in textbook in the case Ex Parte Pieters of when a final order of
presumption of death will be issued.

Answer 3

A final order of presumption of death will be issued if there’s no objection to the rule nisi,
to the interim order of presumption of death. However, in ex parte pieters, there wasn’t any
additional evidence available, yet the court didn’t grant the order, despite granting the rule
nisi. And here the court explained that there’s actually a different onus for rule nisi and
your final order.
Rule nisi: onus is merely prima facie (at first glance does it appear that the person could
be dead?)
Final order: it has to be more likely that the person is dead than alive.
Common law rule: if it’s proved on the rule nisi on the balance of probabilities, then the
final order will automatically be granted, but in ex parte pieters the court stated they only
require a prima facie case and if they are prima facie convinced, they will grant the rule
nisi but then they need to be convinced on a balance of probabilities.

Question 4

4. In Louw vs Engine H Trust case, why is Louw not held liable for damages to the
   motorbike in delict?

Answer 4

The whole point in this case (argument that a minor should be liable in delict):
The court in this case said this should be a possibility, but the court cannot grant something
that wasn’t asked by the party. And because they didn’t ask that the minor be held liable in
delict, only on the basis of contract, therefor the court couldn’t hold the minor liable in
delict.

Question 5

What is the test for mental illness according to common law?

Answer 5

Presumption that we all have mental capacity. This presumption is rebutted, a person will
be deemed mentally incapable if they are uncapable to understand the nature and
consequences of the act that they are performing.
Lange vs Lange extended this test: it is not only in the case of not being able to understand
the nature and consequences, you can also be found to be mentally incapable if you do
understand the n&c but you are induced to enter into this contract by delusions or ‘voices
in your head’. => marriage was void

Question 6

Ambassador to Bolivia case: SA ambassador living in Bolivia 7 years, which legal
system would govern his marriage if he were to marry a Chilean citizen in Bolivia.
Would it be the SA legal system because it will be out of community of property?

Answer 6

To do with where ambassador is domiciled.
- Where he is physically present
- Lawfully present
- What his subjective intention is – intention to remain indefinitely
Domicile will determine matrimonial property regime. If the marry with antenuptial
contract, sorted, antenuptial contract determines matrimonial property regime. Without –
law of place where he is domiciled will determine his matrimonial property regime.

Question 7

Can the exceptio plurium concubentium be used for proof of paternity in respect of
children to an unmarried woman?

Answer 7

No. it’s not used in practice anymore. If a woman proves that she was having sexual
intercourse with a man, during the period she could’ve fallen pregnant, there is a
rebuttable presumption he’s the father. The defense is no longer accepted that she was
having sexual intercourse with someone else at the same period that she was having si with
him. If she names him the father there’s a rebuttable presumption, the best way to rebut it
is through DNA tests.

Question 8

When could a parent be held delictually liable for a wrongful act committed by a
child?

Answer 8

General rule: the parent won’t be held delictually liable, unless the parent wasn’t
complying with the specific obligation when the delict was committed. Depends on
circumstances.

Question 9

Are there any contracts that a minor may not conclude at all?

Answer 9

Minor under 15, may not conclude a contract of employment. (always exception: minor in
entertainment industry)

Question 10

Unjustified enrichment and minor

Answer 10

A minor is liable only in the case of unique enrichment remedy. When a minor concludes a
contract without parental consent/assistance, it would ideally be ratified or repudiated to
make it valid or void, but if that doesn’t occur, then the unique enrichment remedy can be
used. What can be recovered: the smaller of the 2 amounts (amount by which major was
impoverished by or the amount minor was enriched at the date of institution of the action)
Ex: minor receives computer worth R4000 but does not pay. The minor’s estate enriched
by R4000 at date of institution of action, the major’s estate impoverished by R4000. The
R4000 (value of computer) can be claimed. If minor sells computer and donates money to
charity, then the minor isn’t enriched. There’s nothing in the minor’s estate, so smaller
amount is 0. So, there will be no claim. If minor sells computer for R3000 and has the
R3000 in their estate, then the smaller amount is R3000: minor enriched by R3000, major
can claim R3000. If the minor uses R3000 to buy something worth R4000, they are still
enriched by R4000 and the claim will be for R4000.

Question 11

In Stoter: many factors that pointed him to rather being dead than alive, such as the
fact that he took her car & was suffering from depression, why did the court not order
presumption of death?

Answer 11

It would appear as if the court for some other reason are scared to do so. If the conflate
the idea of order of presumption of death and an order of death.
Point of 2 cases: how court engages with various elements of presumption of death.
Sometimes courts want evidence beyond reasonable doubt, not required, only on balance
of probabilities required.

Question 12

Requirements for establishing a domicile of choice?

Answer 12

S1 of Domicile Act

Question 13

3. 5 legally relevant consequences of death

Answer 13

• Legal subjectivity is terminated
• Life policies become payable
• Surviving spouse may remarry
• Estate may be administered
• Deceased becomes a legal object (very specific, special form of legal object)

Question 14

. If a married couple is unable to agree on their child’s surname, whose voice will carry
the most weight?

Answer 14

They will have to approach a court. Court will listen to arguments and make a ruling.

Question 15

. Child born to unmarried parents: does the father hold rights in respect of the child if
the mother does not want this for the child?

Answer 15

What the mother wants is irrelevant. If the father qualifies in terms of S21, or if they’ve
reached an agreement and the agreement has been made an order of court, or he has
applied to court, in terms of S23 or S24, then he will have whatever parental
responsibilities & rights he qualifies for.

Question 16

What if an unmarried father wishes the child to have his surname?

Answer 16

He could approach the court for a declaratory order on the matter.

Question 17

What is the relevance of the Victoria Girls High School case?

Answer 17

Minor’s capacity to litigate & the fact that a cost order will be made against the minor and
not against the minor’s parents, but it can, in the case of reckless litigation there can be a
cost order made against the parents.

Question 18

If a married woman is pregnant, both her and her spouse’s consent are required in
order for her to terminate her pregnancy.

Answer 18

According to section 5 the Choice on Termination of Pregnancy Act, only the
pregnant woman’s informed consent is required to terminate her pregnancy.

Question 19

T provides in his testament that, upon his death, his grandchildren are to inherit his
estate in equal shares. At the time of T’s death, his daughter D, has two living children,
Bladsy / Page 2 of 9
A and B, and is 3 months pregnant with her third child. Six months after T’s death, D
gives birth to a healthy daughter, C.
Because C had not yet been born at the time of T’s death, A and B will inherit T’s
estate in equal shares.

Answer 19

False
The Wills Act provides that, where the testator refers to a group or class of
persons, there exists a rebuttable presumption that they intended to benefit
both born and already conceived members of the group or class.

Question 20

Rebecca Stevenson and Siamkele Khumalo have been living together in what they
view as a permanent life partnership, when Rebecca gives birth to their son, Zachary.
Rebecca and Siamkele may register their son’s name as Zachary Stevenson, or as
Zachary Khumalo, or as Zachary Khumalo-Stevenson.

Answer 20

False
According to the Births and Deaths Registration Act, a child born to unmarried
parents may only receive the surname of the mother or, if both parents consent,
the father, but may not receive a double-barrelled surname.

Question 21

In the decision of Road Accident Fund v Mtati 2005 (6) SA 215 (SCA) it was decided
that the nasciturus-fiction could be extended to also find application in the facts of this
case in order to provide the unborn with a claim for pre-natal injuries

Answer 21

False
In RAF v Mtati, the Court found that the ordinary principles of delict were
sufficient to allow for a claim for pre-natal injuries.

Question 22

The nasciturus adage is the only form of protection which the South African law grants
to an unborn.

Answer 22

False
The unborn is also protected by both common law (for example the appointment
of a curator ad litem) and statutory (for example the Wills Act, Intestate
Succession Act, Choice on Termination of Pregnancy Act) measures.

Question 23

The Law of Persons

Answer 23

That part of the objective law (1) that regulates the coming into existence
(1), private law status (1) and the coming to an end (1) of a natural person
(1) as a legal subject (1

Question 24

Capacity to litigate

Answer 24

Ability to participate in legal proceedings as plaintiff, defendant, applicant
or respondent.
Ability to be a party to a civil action/application.

Question 25

The argument that “[a]bortion terminates the life of a human being” was submitted by
the applicant in Christian Lawyers Association of SA v Minister of Health 1998 (4) SA
113 (T) at 1116G.
(a) What remedy was asked of the court in the above case?

Answer 25

A declaratory order (1) striking down the Choice on Termination of
Pregnancy Act in its entirety (1)

Question 26

The argument that “[a]bortion terminates the life of a human being” was submitted by
the applicant in Christian Lawyers Association of SA v Minister of Health 1998 (4) SA
113 (T) at 1116G.On what grounds did the respondent raise exception to the applicant’s
particulars of claim?

Answer 26

On the grounds that the applicant’s particulars of claim did not contain a
cause of action (1) because the foetus is not the bearer of rights/section
Bladsy / Page 5 of 9
11 of the Constitution does not prevent termination of pregnancy in the
manner envisaged by the Choice on Termination of Pregnancy Act (1)

Question 27

What was the finding of the Court?

Answer 27

The Court upheld the respondent’s exception and dismissed the
application

Question 28

Discuss any five (5) of the reasons for the Court’s finding.

Answer 28

In its ratio decidendi the Court examined meaning of “everyone” as used
interchangeably with “every person” throughout the Bill of Rights and
found the terms to be synonymous. (1) Consequently, as a foetus is not a
person, it cannot be included in the term “everyone” as used in section
11, which guarantees the right to life. (1)
According to the Court, even if the common law status of the foetus may
be uncertain, the Court’s role in casu was to determine the constitutional
status of the foetus (1). In this regard, the Court found that the
Constitution makes no express provision for legal personality, or even
protection, of the foetus. (1)
In its examination of the possibility of the application of the nasciturus
fiction, the Court refers to Christian League v Rall, where it was found that
the fiction does not apply to cases of termination of pregnancy (1)
because the requirement that the nasciturus must eventually be born
alive will not be met. (1)
The Court further examined the meaning of the word “everyone” in the
context of other provisions of Constitution and found that, should a
foetus be included in the term “everyone”, it would have absurd results
(1) such as the foetus having the rights to dignity, privacy and to be
protected from servitude, slavery and forced labour. (1)

Question 29

3 types of curators

Answer 29

1. Curato personae: looks after personal interest of mentally ill person
   Curator bonis: makes financial decisions or decisions about property
   Curator ad litem: acts on behalf of mentally ill person who is unable to understand court proceedings

Question 30

Unmarried fathers, according to section 21, automatically acquire full rights and responsibilities
if:

Answer 30

1. At the time of birth he was living with the mother in a permanent life partnership.
2. Consents to being identified as child’s father OR successfully applies to be identified as child’s
   father OR pays customary law damages.
3. Contributed or has attempted to contribute in good faith to the child’s upbringing and
   maintenance.

Question 31

The Act clarifies that parents have rights in order to fulfil their parental responsibilities. Section
18 outlines the 4 rights and responsibilities of parents:

Answer 31

The Act clarifies that parents have rights in order to fulfil their parental responsibilities. Section
18 outlines the 4 rights and responsibilities of parents:
1. Guardianship: deals with the administrative affairs of the child and parents must safeguard
child’s property/policy interests, assist the child in contractual, administrative, and legal
matters, give/refuse consent to marriage, adoption, or removal from SA, and the alienation
of immovable property. Both parents have equal guardianship.
2. Care: pre-Children’s Act this meant custody, but we don’t refer to custody because (1) this is
when the state is in possession of power, and this isn’t how we want to view parental
responsibility and (2) care is broader than custody, as custody simply referred to where the
child lived. Care is defined in section 1(1) of the Act and includes proving for things like
wellbeing, guiding the child through education and upbringing, and guiding the behaviour of
the child, among others such as providing food, security, and love. Parents share joint
responsibilities here even if they are separated.
3. Contact: traditionally referred to as access in common law and is primarily cantered around
maintaining a relationship between the child and parent when they no longer share a home.
This right and duty seeks to ensure regular communication with the child in person, including
visiting or being visited by the child, as well as any other communication (electronically).
4. Maintenance: this is the duty to support the child financially by providing for their needs
(food, home, clothes, education), or by paying money towards these things. Reciprocal duties
of support arise when:

Question 32

Ex Parte Pieters:

Answer 32

: general rule that courts are reluctant to presume death as the explanation for a
missing person when there is minimal evidence pointing to that conclusion and the rest is conjecture.
Exceptions to this rule include the intervening effluxion (passing) of time making it very unlikely that
they are still alive, or where there is evidence that they died by accident, suicide, or homicide. The
applicant’s father disappeared in 1975 and they applied for a presumption of death order, or payment
of money left to the children in the alternative. The father would have been 73 by the time of
application, with loose employment lacking solid roots, and no financial or other stress or illness. The
court decided that effluxion of time alone (even though it had been 18 years) wasn’t enough to
confirm the rule nisi. The order was denied, but the alternative was granted.

Question 33

Ex Parte Stoter

Answer 33

the applicant applied for a presumption of death order for his brother who went
missing. The brother was unmarried, suffered from severe blood pressure, and was diagnosed with
depression a week prior to his disappearance. He was also very dependent on his family and hadn’t
withdrawn any money from his savings since disappearing. It was decided that, with reference to Ex
Parte Pieters, the period of two years were two short of an intervening time effluxion for the order to
be granted, and it was thus dismissed.

Question 34

The Statutory Procedure

Answer 34

: when there are unnatural causes suspected (their corpse is
destroyed/unavailable for inspection) an inquest may be instituted. These are formal legal
investigations into the circumstances of death undertaken by a judicial officer (usually
magistrate) with the assistance of the State (usually police). This is governed by the Inquests Act.
If the magistrate concludes beyond a reasonable doubt that the person is dead, a finding is
recorded according to the requirements of the Act including: records of the deceased’s identity,
possible cause of death, probable date of death, and whether someone may be held prima facie
accountable for the death. An advantage here is that the state bears all costs, and a marriage is
automatically dissolved. If the High Court confirms the finding, which it must do regardless of
whether the magistrate found death beyond a reasonable doubt, then the effect is the same as a
High Court presumption of death order.

Question 35

The Common Law Presumption

Answer 35

an interested party gives notice of motion to the High Court as
well as an affidavit specifying the details of the person’s disappearance. The “interest” is based
on, for example, being a creditor who is owed money or a spouse dependant on
maintenance/wants to remarry. The court, after consideration, usually issues a rule nisi, a
preliminary order of intention to grant a final order. The rule nisi is issued with a return date
(usually 30 days) and is advertised in the Government Gazette which allows further evidence to
be presented, or for other interested parties to come forward and contest the presumption of
death order. If on the return date there are no such parties, the final order will be made (if the
court is satisfied on a balance of probabilities) and will issue the final order. This means the
deceased’s estate may be administered and if an application under the Dissolution of Marriages
Act has been made then the spouse may remarry. In some cases the court requires security to
be pledged against the estate because the person could still be found alive.