2013 Supplementary paper

Question 1:

 

 

Maradeth and Derek are life partners. They decided to make use of a surrogacy

agency, Baby Inc. to find a suitable surrogate mother. Mrs. Lexi Grey, a director of Baby

Inc. guaranteed that their surrogate mothers are all medically fit to give birth to healthy

babies.

 

Derek’s sperm and Maradeth’s ova were harvested and artificially fertilised. Dr.

Montgomery attended to implant the fertilise eggs into Arizona, the surrogate mother.

One month later Maradeth and Derek received confirmation that they were going to

have twins.

 

During the second trimester of the pregnancy, Arizona was involved in a vehicle

accident. Shortly after the accident Dr. Montgomery performed an ultra sound on

Arizona and noticed that one of the twins was developing a breathing problem. Dr.

Montgomery informed Maradeth and Derek that due to the injury sustained during the

accident, one of the twins will not be able to live a normal life. Dr. Montgomery

suggested that blood tests be performed to confirm his prognosis. Arizona however

refused to give her consent to draw blood from her or the unborn babies and threatened

to terminate the pregnancy if Maradeth and Derek were going to insist on blood tests. 

 

During the third trimester of the pregnancy Arizona had to undergo an emergency

operation after the twin with the lung injury, showed signs of distress. During the

emergency delivery it was discovered that the babies were conjoined twins as their two

bodies fused at the pelvic bone, resulting in them sharing a pelvis. At birth the twin with

the lung injury stopped breathing for 2 minutes. Luckily, Dr. Montgomery managed to

resuscitate (revive) him by using a respirator. The twins were immediately separated

after delivery.

 

Dr. Montgomery indicated that Baby Inc. should have scanned Arizona for addiction

problems, as he discovered that Arizona was using non prescribed drugs during the

pregnancy that probably contributed towards the twins being born as conjoined

twins. After being accused of the aforementioned, Arizona decided that she wanted to

cancel the surrogacy agreement. 

 

Derek, a manic depressant, disappeared shortly after the birth of the twins.    

 

 

 

 

 

 

 

Answer the following questions based on the aforementioned set of facts.

 

 

 

1.1     If Derek’s best friend, Mark, was setting up a business and wanted to give co-ownership of the business to Derek’s children, could Derek accept co-ownership of the business on behalf of their unborn children?                                        (10)

 

 

1.2     If Derek committed murder whilst domiciled in RSA and he then flees to Nigeria and does not intend to return RSA, is he domiciled in RSA or Nigeria? Substantiate your answer.                                                                              (10)

                                                                                                   

 

1.3.    Based on the aforementioned set of fats, what is the presumption regarding paternity and how can such presumption be rebutted?                                   (10)

 

 

1.4.1   If Arizona was a single woman that had a child as a result of artificial fertilisation, would the child be born from married or unmarried parents? Substantiate your answer with reference to case law.                                                    (10)                                                     

 

1.4.2   Would the answer to question 1.4.1 differ if Arizona co-habitated with Susan, another woman?                                                                                    (5)

 

 

1.4.3   Would your answer to question 1.4.1 differ if Arizona was married to Susan?

                                                                                                                        (5)

 

1.5     Discuss the provisions of the Children’s Act 38 of 2005 that deal with parental responsibilities and rights of unmarried fathers.                                      (10)

 

1.6     Critically discuss whether the protection of the interest of the Nasciturus implies that an unborn child is sometimes a legal subject with reference to case law. 

                                                                                                                        (10)

 

 

Question 2:

 

Jill is a minor. She enters into a marriage with John, without obtain the necessary

consent. Jill furthermore signed an antenuptial contract in terms whereof the

matrimonial property regime excluded the accrual system. Discuss whether the

aforesaid marriage is a valid, voidable or void marriage and the matrimonial property

consequences of such marriage with reference to case law and legislation.                  (10)

 

Question 3:

 

Ben is 17 years old. He concludes a contract with Mrs Shabangu, an adult, to buy a

second-hand computer for R3 500. Ben brings Mrs Shabangu under the false

impression that he is 18 years old by producing a forged identity document. Ben pays a

deposit of R350 and Mrs Shabangu delivers the computer to him. Ben 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.

 

3.1     A minor who makes a misrepresentation (like Ben did in this question) commits a

delict and can therefore be held delictual liable. This means that the prejudiced

party has a claim for damages against the person committing the delict (the

minor). What are the requirements for delictual liability in these circumstances?  

(5)

 

3.2     Can Ben recover his deposit? Briefly explain your answer with reference to

authority.                                                                                                (5)

 

 

 

Question 4:

 

Briefly explain how the following diverse factor/s may affect a person’s legal

capacity:

 

4.1     A person that is a declared prodigal enters into a hire-purchase contract?

                                                                                                                        (5)

 

4.2     A person kills another person whilst driving a vehicle under the influence of alcohol.                                                                                               (5)

 

 

THE END