2011 Exam paper

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