Question 1:
Dr.
Sloan is a partner of Sloan and
Montgomery Doctors. On 1 March 2012 Dr. Sloan was requested by Derek, the life
partner of Maradeth, to conduct blood test on Maradeth and the foetus to
determine paternity after he alleged that he only had relations with Maradeth
for one night.
During
one of Maradeth’s routine visits to Dr. Sloan, Dr. Sloan briefly explained to
Maradeth the procedure in extracting fluid’s from her womb for purposes of DNA
testing. Maradeth, overwhelmed by her pregnancy, agreed to the procedure.
During
the procedure Dr. Sloan inserted the needle too deeply into Maradeth’s womb,
resulting in an emergency operation to restore the damage caused by Dr. Sloan.
After the operation Maradeth was told that her baby may be blind as a result of
Dr.Sloan’s medical negligence.
On 1
April 2012 Maradeth went into premature labour. During the delivery Dr. Sloan
noticed that the foetus was not breathing and started to resuscitate (revive)
the baby. Despite his efforts the baby only gave one breath of air and died.
Based on the aforesaid set of facts,
answer the following questions by referring to authority:
1.1 Maradeth consulted you after the emergency operation but prior to her
emergency delivery. Advise Maradeth, with reference to case law, on the
prospect of succeeding with a civil claim for medical negligence, with specific
reference to against whom the claim should be instituted as well as whether
she can institute a claim on behalf of the unborn child (foetus).
Differentiate
between a natural person and a juristic person. A juristic person is an entity
that is created by natural persons and that has independent status from the
natural person/s that established it. In this case Dr Sloan will be held liable
in his personal capacity as a partnership is not a juristic person.
The Nasciturus fiction allows that in
certain circumstances the foetus rights that may accrue to him/her are kept in
abeyance pending the birth of the foetus. 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 and the
child must subsequently be born alive.
It is possible that somebody's
negligence may cause injuries to the
nasciturus before birth. In Pinchin v Santam
Insurance Co 1963 (2) SA 254(W), 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 also had to decide
on a medical question, namely whether the injury sustained by the pregnant
woman had caused the child to suffer from cerebral palsy.) In this case the
court concluded that a fetus, if negligently injured before birth, may claim
damages from the wrongful party.
1.2 Considering section 12(2) of
the Constitution of South Africa 1996 providing for “everyone’s right to bodily and psychological integrity” as well as
section 21 of the Children’s Act 38 of 2005, does Derek have the right to
request Maradeth or the baby to submit themselves for blood tests and can
they be ordered to submit themselves for blood tests for purposes of
establishing paternity?
In F v L 1987 (4) SA 525 (W)"),
the court decided that the 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 the child. In B VP
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 father will not unduly interfere with the mother's
right of custody'') In 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 right of access should only be denied 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 decision in B vP")
In T VM 1997 (1) SA 54 (A)"), the
Supreme Court of Appeal held that whether or not access is granted is not
dependent on the legitimacy of the child, as it used to be in terms of the
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 the father's right") You should also have referred to the
Natural Fathers of Children Born out of Wedlock Act 86 of 1997.") In terms
of this Act the unmarried father may apply for access. He will only succeed if
he can prove that access will be in the
best interests of the child.'') The court must take the following factors into
account when considering the application for access:
You could also have indicated that the
existing legal position amounts to unfair discrimination against both the
extra-marital child and his or her father, and thus contravenes section 9 of
the Constitution")
In cases where blood tests are
submitted to voluntarily, the courts accept blood tests as sufficient proof
that a man cannot be a child's father. However, there is no certain answer to
the question of whether the court may compel a person to undergo blood tests
despite that person's refusal.
The following cases deal with the
question of whether the court can compel children to undergo blood tests
despite the parent's refusal: In 0 v 0 1992 (4) SA 137 (C), Seetal v Pravitha
1983 (3) SA 827 (D) and M v R 1989 (1) SA 416 (0) (Casebook [I 91) the
courts decided that they could order a child to be submitted to blood tests
despite the parent's refusal, if the tests are in the best interests of the
child.
However, in S v L 1992 (3) SA 71 3 (E)
(Casebook [18]) the court decided that it did not have the power to interfere
with the decision of the mother that the child should not undergo blood tests,
even if the court would have come to a different decision. The court held that
ordering someone to submit to a blood test is not merely a procedural order.
The following cases deal with the question whether the court can compel adults
to undergo blood tests in spite of the parent's refusal: In M v R above
the court decided that it did have the power to compel an adult to undergo
blood tests in order to establish paternity, since the High Court has the
inherent power to regulate its own procedures. In S v L above and Nell
vNell1990 (3) SA 889 (T), the courts decided that they did not have the power
to compel an adult to undergo blood tests, because such an order was not merely
a procedural order.
In 0 v O above, the court stated that
there was no statutory or common-law power enabling the court to order an adult
to undergo blood tests for the purpose of establishing paternity.
Section 2 of the Children's Status Act
82 of 1987 creates a presumption that, if a party in a paternity dispute has
been requested by the other party to submit himself or herself, or the child
over whom he or she has parental authority, to blood tests, and he or she
refuses to do so, that party wishes to conceal the truth concerning the child's
paternity. Cronje & Heaton (57-58) indicate that it may be argued that an
order compelling a person to undergo blood tests infringes his or her right to
privacy and bodily and psychological integrity (which includes the right to
security in and control over the body, as well as the right not to be subjected
to medical or scientific experiments without informed consent - Constitution of
the Republic of South Africa 108 of 1996 - ss 12 & 14). They add that the
infringement of the rights of privacy and bodily integrity would be justifiable
if it were in the best interests of the child to determine paternity by
ordering a person to undergo a blood test.
1.3 Considering the requirements
for the beginning and end of legal personality, as well as the provisions of
the Birth and Death Registration Act 51 of 1992, advise Maradeth on whether she
is obliged to register her baby, and if not, what is expected of her?
A
natural person’s legal personality begins at birth. The requirements for
the beginning of legal personality are that the birth must be fully
completed and the child must be born alive, even if for a small
period of time.
The
facts indicate that the foetus died after taking one breath; hence
despite the argument from authors suggesting that the child should be viable,
the child is regarded to be born alive and therefore acquires legal
personality.
In
terms of the B&D Reg Act, the child’s parents have a duty to reg
every birth at dept of home affairs within 30 days of date of birth by registering
forename and surname (J v Director General).
1.4 Advise Maradeth on the presumption
of paternity applicable in the circumstances where the child was born from
unmarried parents and explains to her how Derek (the alleged father) can rebut
this presumption.
If a child is born to a married woman
or a woman who is a party to a civil union, it is presumed that the child is
born of the spouses or civil union partners. This presumption is expressed in
the maxim pater est quem nuptiae demonstrant (the marriage
indicates who the father is). The pater est quem nuptiae
demonstrant presumption applies to children conceived before a marriage
or civil union but born during its existence, as well as children conceived
during the marriage or civil union but born after its dissolution. Thus if a
woman remarries or enters into a civil
union shortly after the dissolution of hr previous marriage or civil union and the presumption is consistently applied, both
men could be considered the father of the child born during the early stages of the new marriage
or civil union. In such a case it is rebuttable presumed that
the new husband or civil Union partner is the child’s father. It is thus presumed
that Jack is the father. The presumption is however rebuttable. He can prove that he did not have sex with Jill at the time when the
child could have been conceived (1); the gestation period may be
considered (1) He can prove that he is sterile (1); through blood
tests (1).
(Heaton 58-64)
Question 2:
Mr Williams, a 60 year old civil
engineer from Cape Town was on holiday in Port Shepstone to watch the annual
sardine run. It was his goal to retire in five years after having personally
experienced the famous South Coast sardine run. Before he came to Port
Shepstone for his holiday, he had sought medical advice from his doctor for an
incessant chest complication and was told that he had bone marrow cancer and
was likely to live for only two years after his retirement. On the eve of the
sardine run, Mr Williams went for an early morning swim despite the rough state
of the ocean that morning. He did not return and it is now eight months since
he disappeared.
2.1 Mrs. Williams is
contemplating applying for a presumption of death order in order to move on
with her life. Advise her on pertinent factors our courts will take into
account before granting the order, especially considering that Mr. William’s
whereabouts have been unknown for only eight months. In answering the question
please refer to authority.
There
is no fixed time that have to wait in South Africa. In England there is a
seven-year period - see Re Beaglehole
where Innes J said that it depends entirely on the facts of the particular case
whether or not the court will grant the order. In this case, B was a miller in
England. He had been missing for 15 years, yet the court refused to grant the
order as it felt that insufficient enquiries had been made. Relevant factors
that the court may take into consideration are the following:
Age
of missing person His profession
Whether
he was exposed to any special risks or perils
The
period for which he has been missing and the circumstances surrounding his
disappearance.
2.2 Assume that the court is
willing to grant the order sought by Mrs. Williams. Explain to her the step by
step procedural process that will have to be followed in this specific
instance. In answering the question reference must be made to authority. (10)
Any
interested party can apply to the high court for an order of presumption of
death. They must apply to the court where the person was last domiciled
immediately prior to his disappearance. After considering all the facts, the
court will set down a date for the final order after this has been published in
a local newspaper and the Government Gazette, so that any person may bring
forward additional evidence or raise objections.
In
each situation the courts must, when expressing a presumption, have regard to
all the available facts in order to decide on a balance of probabilities
whether the person is deceased or not. (Ex Parte Pieters)
2.3 Once the order sought has
been granted as per Mrs William’s wishes, can she remarry? Motivate your answer
with reference to authority. (5)
No- marriage is not automatically terminated- she must bring a separate
application i.t.o. dissolution of marriages on presumption of death act
–act
23 of 1979. must be made by application by the surviving spouse.
The Dissolution of Marriages on
Presumption of Death Act 23 of 1979(2) provides that the court which
expresses a presumption of death may, at the request of the remaining spouse(2),
make an order dissolving the marriage as from the date determined by the court(2).
Such an order can be made at the same time as the presumption of death is made
or at any time thereafter, in other words, by means of a separate application.(2)
If such an order is made, the marriage is deemed to be dissolved by death
for all purposes - the legal consequences are therefore the same as in a case
where the marriage has actually been dissolved by death.(1) According to
the wording of the Act, the court is not bound to grant the application, but
has a discretion to refuse it.(1)
(Heaton 33)
Question
3:
James, a South African diplomat, was recently
placed in Canada. Last week his mother, who was left behind in Pretoria was
diagnosed with inoperable cancer and was told that she would die within the
next six months. James immediately returned to Pretoria to care for his mother.
He however intends to resume his duties in Canada after his mother’s inevitable
death and funeral. Where is James domiciled at present? Motivate your answer. (5)
Question 4:
Sloan is 17 years old. He
concludes a contract with Arizona, an adult, to buy a second-hand computer for
R3 500. Sloan brings Arizona under the false impression that he is 18 years old
by producing a forged identity document. Sloan pays a deposit of R350 and
Arizona delivers the computer to him. Sloan now refuses to pay the remainder of
the contract price on the ground that he is a minor and therefore not liable in
terms of the contract.
4.1 Can Sloan, who makes a misrepresentation,
be held delictual liable? If so what remedy is available to Arizona and what
are the requirements for delictual liability in these circumstances? (5)
4.2 Can Sloan recover his deposit? Briefly
explain your answer with reference to authority. (5)
Question 5:
Briefly explain how the following diverse factor/s may affect a
person’s status:
5.1 A juristic act performed by a mentally ill person during a lucidum intervallum? (3)
5.2 Physical
disability to manage his/her own affairs. (3)
5.3 Intoxication. (3)
5.4 Prodigality. (3)
5.5 Insolvency. (3)
THE END
