Question 1:
Arizona and Derek married each other in terms of the
Civil Union Act on the 1st day of April 2012. The ceremony took
place at Giant’s Castle in the Drakensberg. At Arizona’s bridal shower (prior
to the marriage) she slept with her ex-boyfriend, George (a declared prodigal).
Shortly after the wedding Derek was offered a two year employment contract at
the SOS Hospital in his hometown of Lucerne, Switzerland. Arizona, a trauma
doctor, just signed a two year contract with ‘From Zero to Hero Adventure
Sports’. The business is owned by Mark Sheppard. It was agreed that once Arizona
completed her contract with ‘From Zero to Hero Adventure Sport’, she would join
Derek in Switzerland. Derek left for Lucerne, unknowing that Arizona was
pregnant.
‘From Zero to Hero Adventure Sports’ partnered with The
Big Blue CC and asked Arizona to do an assessment on the impact free diving may
have on a person’s lung functions. Arizona partook in the assessment by diving
to a depth of 150 metres. After the dive Arizona started experiencing
difficulty in breathing. She was airlifted to the nearest hospital where she
was informed that she was expecting twins and that one of the foetuses has suffered
an oxygen deficiency.
Arizona informed Derek that she was pregnant. During
the telephonic conversation with Derek, Arizona informed Derek that George may
be the father of the twins. Despite being outraged at the possibility that
George may be the father of the twins, Derek chartered an aeroplane to fly to
the Drakensberg. As the plane entered the South African airspace, the plane
disappeared. A few months later Arizona gave birth to Lexi, a mentally
handicapped daughter whilst Avery (the foetus that suffered an oxygen
deficiency) only managed to live for two minutes after birth. Due to Lexi’s
disability, Arizona decided to relocate to Cape Town where Lexi could receive
the necessary medical care.
Answer the
following questions based on the aforementioned set of facts.
1.1 Considering the requirements for the beginning and end of legal
personality, advise Arizona as to whether she is obliged to register Lexi and
Avery in terms of the Birth and Death Registration Act 51 of 1992, and if not,
what is expected of her? Furthermore, considering that Lexi is mentally
handicapped, explain to Arizona where Lexi will be deemed to be domiciled. In
answering this question reference must be made to the relevant sections of the
Birth and Death Registration Act as well as relevant case law. (20)
1.2 Considering the presumptions relating to paternity
as well as the exception plurium concubentium principle, who will be
regarded to be the father of Lexi and Avery? In addition should it be concluded
that George is the biological father of the child, discuss whether George would
have any parental rights and responsibilities in respect of Lexi seeing as he
is not married to Arizona. Reference must be made to legislation and case law
in substantiating your answer.
(20)
1.3 Would Arizona be able to institute a civil
action for the injuries that Lexi suffered as a foetus, and for the loss of
Avery? If so, against whom will such a claim be instituted? Reference must be
made to legislation and case law in substantiating your answer. (20)
1.4 Discuss the legal capacities of George and
Lexi respectively. (20)
[80]
Question 2:
Absalom is a 17-year-old minor who lives with his
parents. While his parents are overseas for three months, he learns that Martin
wants to sell his BMW for R140 000. Absalom enters into a purchase agreement
with Martin, who is 30 years of age. Martin knows that Absalom is 17 years of
age. In terms of the agreement, Absalom undertakes to pay a deposit of R15 000
and to pay the rest of the purchase price by way of 48 monthly installments of
R3 500 each. He uses the R15 000 that he received as a gift for his 16th
birthday to pay the deposit. As Absalom wants to surprise his parents upon
their return to South Africa by arriving at the airport in the BMW, he hides
the purchase from them.
The month after purchasing the BMW from Martin,
Absalom pays the first installment of R3 500 to Martin. Two days later the BMW
is seriously damaged when a truck crashes into it. Absalom is unhurt. The BMW,
which was uninsured, is now worth only R25 000. When the next instalment falls
due, Absalom relies on his minority and informs Martin that he will not be
paying any further amounts to him. Absalom has still not told his parents that
he bought the BMW, and is now hoping that they will never discover that he
bought a vehicle without their consent and drove around without a driver's
license in an uninsured vehicle. When Martin consults his attorney, he learns
that Absalom is not contractually bound to pay the outstanding installments,
but that Absalom could be sued on the ground of undue enrichment. Explain what
liability on the ground of undue enrichment entails, and what amount Martin
could claim with this remedy. [(20)]
THE END
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