Ex Parte Boedel Steenkamp 1962 (3) SA 954 (O)
The facts of the case are as follows:
The testator left the
residue of his estate to his daughter and to the first generation “wat by datum
van dood in die lewe is”. The testator’s daughter was pregnant at the time of
his (the testator’s) death and subsequently gave birth to Paul Johannes.
The executor to the
estate sought a declaratory order on the issue of whether only the children
born at the time of the testator’s death would inherit or if Paul Johannes,
born after the death of the testator, would also be able to inherit.
Curator ad litem for Gerda and Daniel Johannes (the two children
already born) held that the words “wat by datum van dood in die lewe is” is
sufficient enough and without ambiguity to exclude the unborn child from the
estate.
Curator ad litem for Paul Johannes was of the opposite opinion
stating that there is no evidence that the testator wished to exclude the
unborn child from his will.
The legal questions are:
1.
Does the nasciturus have the legal capacity to
inherit?
2.
Is Paul Johannes (in ventre matris) entitled to a share of
the estate?
Judge De Villiers R
held that the nasciturus should be
able to inherit by means of the nasciturus
fiction subject to being born alive and it being to the advantage of the nasciturus. He further held that Paul
Johannes is entitled to share in the estate of the testator in equal amounts to
his mother, brother and sister.
Judge De Villiers R
referred to the decision of House of Lords in Elliot v Lord Joicey where the
court held that if the testator’s intentions are not clear, when words as “in
lewe” or “gebore” are used in conjunction with a specific time line and there
is no other specific statement specifically excluding the child in ventre matris it should be presumed
that the testator had no intention of excluding the child in ventre matris form his/her will.
Road
Accident Fund v Mtati 2005 (6) SA 215 (SCA)
The facts of the case
are as follows:
A pregnant woman was
seriously injured when a motor vehicle collided with her. The accident was
caused by negligence of the driver in question. The pregnant woman’s child (Z)
was subsequently born with brain injuries and mental disability. The father
instituted a claim on behalf of the child against the Road Accident fund.
The Road Accident
Fund raised a special plea. It contended that firstly and unborn child is not a
person (legal subject) and is therefore not entitled to compensation and
secondly, because an unborn child is not a person (legal subject) the driver
does not owe a duty of care to the unborn child.
The legal question
consisted of two parts, namely:
1.
Does Z have a claim against the Road Accident Fund for the damages
resulting from the disabilities?
2.
Should such an action be allowed by using the nasciturus fiction, or by
using the ordinary principles of delict?
The supreme court of
appeal decided that it would be intolerable if our law did not grant an action
for prenatal injuries and that such an action should be based on the law of
delict. The appeal was thus unsuccessful.
The reasoning for the
judgment was as follows:
The court held that,
according to the ordinary principles of the law of delict, unlawfulness and
damage are separate elements for delictual liability and that the child’s
delictual right of action becomes complete when he/she is born alive. The
assertion that the driver of the vehicle did not owe Z a legal duty because she
had not yet been born must be rejected.
As a result of this
judgment, all future claims for prenatal injuries will have to be based on the
ordinary principles of the law of delict and not on the nasciturus fiction. The nasciturus
fiction will still apply to other areas of the law.
Christian Lawyers
Association of SA V The Minister of Health 1998 (11) BCLR 1434 (T) SA 1113 (T)
The facts are as follows: The plaintiffs sought an
order declaring the Choice on Termination of Pregnancy Act 92 of 1996
unconstitutional, striking it down in its entirety. The plaintiffs argued that
life begins at conception; therefore termination of pregnancy is in violation
of section 11 of the Constitution of the Republic of South Africa, 1996, which
affords everyone the right to life.
The defendants argued that the foetus is not a bearer of rights in term of section 11 of the
Constitution.
The legal question is: Does the wording of “everyone”
or “every person” in the Constitution include an unborn child (as a legal
subject), from the moment of conception?
Judge McCreath held that the question is not one to
be answered by medicine but by proper interpretation of section 11 of the
Constitution.
He further stated that if the drafters of the
Constitution intended to protect the foetus,
specific reference to the protection of the foetus would have been made in the Bill of Rights, section 28.
The Transvaal Provincial Division of the High Court
held that to afford legal personality to the foetus would impinge to a lesser or greater extent on the rights to
human dignity, life, privacy, religion, belief and opinion and health care. The
court thus concluded that the particulars of the claim fail to make out a cause
of action and the exception must succeed.
Christians
Lawyers’ Association V Minister of Health 2004 (10) BCLR 1086 (T)
The facts are as follows:
The plaintiffs challenged the constitutionality
of the Choice on Termination of Pregnancy Act 92 of 1996 that allows a pregnant
minor of whatever age to independently consent to the termination of her
pregnancy. The plaintiffs sought a declaratory order striking down the relevant
provisions. They alleged that a woman below 18 years of age is incapable of
giving informed consent as required by the Act and that she has to have the
assistance of her parents or guardian when she decides to have her pregnancy terminated.
They further alleged that allowing a minor to independently decide to have her
pregnancy terminated violates several of her constitutional rights, amongst
others, having a child’s best interest be of paramount importance.
The defendant raised the exception that the
plaintiff’s particulars of claim do not disclose a cause of action. The court
upheld the exception.
The legal questions are:
1.
Are
women below the age of 18 incapable of giving informed consent?
2.
Does
the Termination of Pregnancy Act 92 of 1996 infringe on the rights of women
wishing to terminate their pregnancies?
Judge Mojapelo J held that the termination of
pregnancy is regulated and the act in question is, does not affront the
Constitution. He further held that the right in question is not unregulated and
for that reason he made the following order:
1.
The
exception is upheld
2.
The
plaintiff’s claims are dismissed.
The reasons for the judgment were as follows:
The court held that due to a distinction made
in the act between women capable of giving informed consent and those women not
capable of giving informed consent, is a rational distinction and is therefore
capable of justification. It is therefore NOT unconstitutional.
The court further held that the plaintiff’s
claim that the best interests of the child clause is infringed upon is
unsustainable. The legislative choice opted for in the Act served the best
interests of the pregnant child because it is flexible and accommodates the
individual position of a girl based on her intellectual, psychological and
emotional make up and majority.
Re Beaglehole 1908 TS 49
The facts are as follows:
A testator left an amount of money to
beneficiary. The executor of the estate had paid the money to the master of the
High Court because the testator could not be traced. The executor applied for
an order of to pay the estate over to him (the executor) so he could pay the
money to the testators remaining heirs. It was alleged that the executor had
not been heard from in over 15 years and therefore is presumed dead. The court
refused to issue the presumption of death.
The legal question:
What law system should be applied during the
hearing of the case in question?
The judgment:
Judge Innes CJ refused to grant the order of
presumption of death when applying Roman-Dutch law principles which are, is his
opinion, the correct system of law to be used.
The reasoning:
Judge Innes CJ held that in Roman-Dutch law, no
prescribed period of being untraceable constitutes granting an order of
presumption of death and the decision is left to the discretion of the judge.
He further held that more accurate inquiries
about the whereabouts of the person in question could have been made and
therefore did not grant the order of presumption of death.
Ex
Parte Pieters 1993 (3) SA 379 (D)
The facts are as
follows:
The applicant’s
father disappeared in 1975. The applicant mother died and left a sum of money
to his (the applicant’s) father. The applicant applied for and order to either
a) an order of presumption of death or b) and order compelling the Master of
the High Court to effect payment to him and his siblings, subject to them
providing security. There was no evidence that would indicate that the
applicant’s father is possibly dead, except his age (73). The court did not
issue the presumption of death but authorised the Master of the High Court to
distribute the money equally between the applicant and his siblings without the
necessity of providing security.
The legal
question:
Under what
circumstances will the court grant an order of presumption of death?
The judgment:
Judge Alexander
J held that no presumption of death will be ordered because the applicant’s
argument is not strong enough to order a presumption of death. The Master is
authorised to distribute the amount of R6148.14 equally between the applicant
and his siblings.
The reasoning:
The court held
that, taking all the known information into account, the information is not
enough to presume the person in question as dead. Judge Alexander J referred
amongst other cases to Re Beaglehole and
held that he knows of no rule which would require to court to presume death
only on the lapse of years.
J V
Director General, Department of Home Affairs 2003 (5) BCLR (CC)
The facts are as
follows:
One party to a
same-sex life partnership gave birth to twins who had been conceived via in vitro fertilisation. The ova of the
first applicant were used with donor sperm. Both parties wished to be
registered and recognised as the twins’ birth-mothers. The Births and Deaths Registration Act 51 of
1992 only made provision for one male and one female parent, thus the first
applicant could not be registered as the twins’ parent. The applicants
approached the Durban High Court. The court inter
alia ordered the Director-General of Home Affairs to register the second
applicant as the twins’ mother and the first applicant as the twins’ parent.
The Durban High Court further declared section 5 of the Children’s Status Act
82 of 1987 unconstitutional. The applicants approached the Constitutional Court
for confirmation of the decision in question. The Constitutional court
confirmed the unconstitutionality of section 5 of the Children’s Status Act 82
of 1987.
The legal
question:
Is section 5 of
the Children’s Status Act 82 of 1987 unconstitutional?
The judgement:
The
Constitutional court held that section 5 of the Children’s Status Act 82 of
1987 is unconstitutional and made the following order:
i.
Section 5 of the Children’s
Status Act 82 of 1987 is declared to inconsistent with the Constitution to the
extent that the word “married” appears in that section and to the extent that
the section does not include the words “or permanent same-sex life partner”
after the word “husband” wherever it appears in that section.
ii.
In section 5 of the Children’s
Status Act 82 of 1987 the word “married” is struck out wherever it appears in
that section.
iii.
In section 5 of the Children’s
Status Act 82 1987 the words “or permanent same-sex life partner” are read in
the after the word “husband” wherever it appears in that section.
iv.
The words in subsection 5(1)
(a) “as if the gamete or gametes of that woman or her husband were used for
such artificial insemination” are struck out.
The reasoning:
The court held
that the discrimination was unfair with regards to gays and lesbians and therefore
amended section 5 of the Children’s Status Act 82 of 1987 accordingly.
M V R 1989 (1) SA 416 (O)
The facts are as follows:
The applicant and the respondent had sex on a
regular basis. The respondent alleged that she was a virgin at the time she and
the applicant had had sex on a regular basis. The applicant denied this and
said she (the respondent) had another boyfriend. The respondent denied this. In
January 1979 the respondent informed the applicant that she was pregnant. The
applicant subsequently paid maintenance for eight years. The respondent
informed the applicant that she applied for an order of an increased amount of
maintenance from the applicant. The applicant applied for paternal testing and
the respondent opposed this application. The respondent, in the mean time,
married R and the child, S, accepted and loved R as his/her father. The
respondent and R planned on telling S, during the next year, that the applicant
is his/her father. The court felt that it was crucial for the child’s development
and happiness that clarity in this matter be reached.
The legal questions are:
1.
Is
there, in this particular case, need for the court to intervene as “oppervoog”
of children.
2.
Is
it within this court’s jurisdiction to compel the mother to subject herself to
blood tests?
The Judgment:
Judge Kotze R held that the court has to
intervene in this particular case because it would be to the advantage of the
child in questions. He further held that the court could compel the respondent
to go for blood tests, once again, because it would be to the advantage of the
child to know who is his/her father.
The reasoning:
Judge Kotze held that compelling a man that is
not the father of the child to pay maintenance is not an advantage to the child
that should be considered by the court. He further held that it would be an
advantage to know who the real father of the child it, before the respondent
told the child that the applicant is his/her father. Judge Kotze ruled that the
mother has to go for the blood tests and she should also have to child go for
the blood tests in order to clarify if the applicant is the father of the
child.
S v L 1992 (3) SA 713 (E)
The facts are as follows:
The appellant alleged the respondent to be the
father of her child. The respondent had paid maintenance from time to time but
never alleged that he was the father of the child. He admitted to having
intercourse with the appellant at the time the child could have been conceived,
but contended that he was not the only mad who had done so. The appellant
applied to the maintenance court for an increase in maintenance to be paid by
the respondent. The respondent opposed the application and requested the
appellant to submit herself and the child to blood tests in order to establish
whether the respondent was indeed the child’s father. The applicant refused.
The respondent applied to the high court for an order compelling the appellant
to submit herself and the child to medical testing. The order was granted, but
the appellant successfully appealed successfully to the full bench.
The legal questions are:
1.
Can
the court compel the woman to submit herself and the child to blood testing?
2.
Should
the respondent have approached the Supreme Court for an order compelling the
mother to submit herself and the child to blood testing?
The judgment:
The appeal was successful - the mother was not
compelled to submit herself and the child to blood testing. Erasmus J further
held that the respondent should not have approached the Supreme Court for an
order to compel the appellant to submit herself and the child to blood testing.
Erasmus J held that respondent should have remained in the maintenance court
and there adducted proof of the appellant’s refusal to submit herself and the
child to blood testing.
The reasoning:
The Supreme Court held that the respondent
could not prove, on a balance of probabilities that submitting the child to
blood testing would be to the advantage of the child. The child knew she was
illegitimate and accepted the respondent as her father. The appellant felt it
would cause a feeling of insecurity by the child. The Supreme Court held that
they, as upper guardians of minors, do not have the authority to intervene with
the custodian parent’s decision.
The court further held that they (the Supreme
Court) should not lightly intervene in the proceedings of another court, in
order to grant a party procedural remedy which it does not have in terms of the
lower court’s rule of practice.
.
LB
v YD 2009 (5) SA 463 (T) and YD v LB (A) 2009 (5) SA 479 (GNP)
LB v YD:
The applicant
(the alleged father) and the respondent (the mother), who had never married
each other, were involved in an intimate relationship between February 2006 and
April 2007. The respondent discovered that she was pregnant on 23 March
2007. In April 2007 she became
intimately involved with
another man, whom
she married in
July 2007. The respondent’s daughter, Y, was born on 8
November 2007. The applicant requested the respondent to submit to blood tests
voluntarily to determine paternity with regard to Y. The respondent informed
the applicant that she was not prepared to subject herself to a blood test and
that it was not in the best interests of Y to do so either.
The applicant
then launched the
application in the high
court for an
order directing the respondent to submit herself and Y to blood tests. After considering the
facts in Seetal v Pravitha 1983 (3) SA 827 (D), M v R 1989 (1) SA 416 (O) and O
v O 1992 (4) SA 137 (C), Murphy J came to the conclusion that the preponderance
of authority favoured the proposition that the high court, as the upper
guardian of all minors, was entitled to authorise a blood test on a minor
despite objections by a custodian parent. He held that it would be in the best
interests of Y that paternity be scientifically determined and resolved. He ordered the respondent to submit herself
and her minor child Y, within 30 days of the order, to blood tests for the
purpose of determining whether the applicant is the biological father of the
child Y.
YD v LB (A):
The respondent
then applied for leave to appeal in YD v LB (A). The respondent (the applicant
in the application for leave to appeal, but to avoid confusion, I shall keep
referring to her as the respondent)
raised 16 grounds
of appeal, but
the application for
leave to appeal
was dismissed.
Discussion:
The position
with regard to the use of blood tests to determine paternity in South Africa is
very uncertain, and reliance on recent, post-constitutional cases is the only
way to determine the courts’ attitude with regard to ordering blood tests in a
paternity dispute. Apart from D v K
1997 (2) BCLR
209 (N), which was heard after the coming into operation of the Constitution of
the Republic of South Africa 200 of 1993 (the interim Constitution), but before
the Constitution of the Republic of South Africa, 1996 (the Constitution) came
into effect, the present case is the only case that deals with blood tests to
determine paternity in a constitutional framework. It is also the first case
that deals with blood tests in paternity disputes to be reported in 13 years,
and the first case of this nature since the implementation of the Children’s
Act 38 of 2005. As a result, the decision is an important one.
There are some
aspects of Murphy J’s judgment that need to be mentioned:
It appears as if
he did not properly take cognisance of the marital status of the mother.
She was married
at the time of the child’s birth. In terms of the maxim pater est quem
nuptiae demonstrant Y was born
to married parents,
and it is
presumed that the woman’s husband is the child’s father.
Evidence on a balance of probabilities is needed to rebut the presumption that
her husband is her child’s father. The court failed to take this into account
in its judgment.
Other
than the best
interests of the child,
he did not consider any of
the relevant constitutional rights, such as the right to human dignity,
freedom and security of the person, and privacy. This unfortunately jeopardises
the relevance of the decision.
The decision
of the court
to compel the
respondent and Y
to submit to
blood tests is welcomed, but because all the facts and
presumptions with regard to paternity, as well as all the relevant
constitutional rights were not considered, the decision does not provide the
much needed guidance as far as this area of the law is concerned.
Frasier V Children’s Court, Pretoria North 1997 (2) SA
261 (CC)
The facts are as follows:
The second respondent fell pregnant while she
and the applicant were still living together. During her pregnancy, the second
respondent decided to give the child up for adoption. The applicant disagreed
and launched a series of unsuccessful application to stop the proposed adoption
and to have the child handed to him. The applicant applied for review of the
Children’s court decision by the High Court. On review, the adoption order was
set aside and the matter was referred to the Constitutional Court.
The legal question is:
·
Is
section 18(4) (d) of the Child Care Act 74 of 1983 unconstitutional?
·
Should
the court declare s 18(4) (d) of the Child Care Act 74 of 1983 invalid or
should the court give Parliament an opportunity to correct the act in terms of
s 98 (5) of the Constitution of South Africa.
The judgment:
The Constitutional Court made the following
order:
1.
The
court declared s18 (4) (d) of the
Child Care Act 74 of 1983 as invalid and amended the act to include the
father’s consent with regards to adoptions.
2.
In
terms of the proviso to s98 (5) of the Constitution, Parliament is required
within a period of two years to correct the defect in the said provision.
3.
The
said provision shall remain in force pending its correction by Parliament or
the expiry of the period specified in paragraph 2.
The reasoning:
The court held that the Act in question was
unconstitutional, because it discriminates unfairly against fathers of
extra-marital children on the grounds of their marital status. The court held
that it can be argued that the Act also discriminates unfairly on grounds of
gender, because of the fact that a mother of an extra-marital child has
different rights to that of a extra-marital father.
Motan V Joosub 1930 AD 61
The facts are as follows:
The appellant was in a customary, Muslim,
marriage with the respondent. As their union did not constitute a valid
marriage, their children were born of unmarried parents. The appellant claimed
maintenance from the paternal grandparents. The respondent denied liability.
The exception was dismissed and it was held that the paternal grandfather of
the children who are born of unmarried parents is not obliged to support them.
The appellant unsuccessfully appealed against the decision.
The legal question:
Are paternal grandparents liable to pay
maintenance for children of his son born of unmarried parents?
The judgment:
The opinion of the lower court is correct and
the appeal therefore is dismissed.
The reasoning:
The court held that according to Roman law, the
paternal grandparents were not liable to maintenance of their son’s
illegitimate children. The court held that in this case, there can be some
certainty that the children are those of the son of the grandparents, but in
other cases, there is not sufficient certainty regarding paternity. If paternal
grandparent were required to pay maintenance for every illegitimate child of
their son, it may impose a burden which may be difficult for them to remove by
proof.
Pietersen V Maintenance Officer [2004] 1 All SA 117
(C), 2004 (2) BCLR 205 (C)
The facts are as follows:
The applicant is an unmarried student who gave
birth to a child in 2003. The child’s father admitted to paternity. The child’s
father did not pay maintenance towards the child, as he had no income. The
Maintenance Court also found that the father could not contribute towards
maintenance. The applicant’s parents supported the applicant and the child. The
applicant lodged a maintenance complaint with the maintenance officer to the
effect that the child’s paternal grandparents are legally liable to maintain
the child but failed to do so. The applicant asked the maintenance officer to
summon the paternal grandparents to attend the maintenance enquiry. The
maintenance officer refused to do so, because the law does not compel the
paternal grandparents to pay maintenance towards their unmarried son’s
children.
The legal question:
1.
Does
the common-law rule differentiate between people or categories of people? If
so?
2.
Does
the differentiation amount to unfair discrimination?
I.
Does
the differentiation amount to discrimination? If it is on a ground specified in
section 9 (3), then discrimination will have been established.
II.
If
the differentiation amounts to discrimination, does it amount to unfair
discrimination? If it has been found to have been on specified ground, then
unfairness will be presumed.
3.
If
the differentiation is found to be unfair then a determination will have to be
made as to whether the common-law rule can be justifies under the limitations
clause (Section 36 of the Constitution)
The judgment:
Judge Fourie J held:
It is declared that the paternal grandparents
have a legal duty to support the extra marital child of the applicant to the
same extent as the maternal grandparents.
The first respondent is directed to take
necessary steps for an enquiry to be held in terms of section 10 of the
Maintenance Act No 99 of 1998, with a view to enquiring into the provision of
maintenance, by the second and third respondents, for the said extra marital
child of the applicant.
The reasoning:
Judge Fourie J held that the differentiation
between children born out of wedlock and extra marital children not only denies
extra marital children an equal right to be maintained by their paternal
grandparents, but is also not in line with the “best interests of the child”
clause in the Bill of Rights.
Louw V MJ & H Trust 1975 (4) SA 268 (T)
The facts are as follows:
While still a minor, the appellant bought a
motorcycle from the respondent. While relying on his minority at the time the
contract was concluded, the appellant subsequently reclaimed R338 which he had
paid to the respondent. The respondent contested on the grounds of
misrepresentation by the appellant. The respondent filed a counterclaim for
payment of arrear installments and for the value of parts stolen off the motorcycle.
It was alleged that the theft was due to the appellant’s failure to observe the
contractual obligation. The court held that the minor was bound by the contract
and that the appellant was liable for the value of the stolen parts.
On appeal to the Transvaal provincial division
the appellant argued that the respondent knew the appellant was a minor and
should not have accepted the appellant’s representation of being emancipated.
Alternatively it was argued that the minor’s contract could not be enforced
even if the contract was induced by misrepresentation and that the minor was
accordingly entitled to restitutio in
integrum.
The legal questions:
1.
Could
the minor be held accountable even if he misrepresented himself?
2.
Is
the appellant entitled to restitutio in
integrum?
The judgment:
The appeal was allowed to the extent that in
relation to the counterclaim, the magistrate’s judgment should be altered to
one of absolution from the instance on the claim for R298.45 and to the
judgment for the plaintiff (the appellant) on the claim of R69.
The reasoning:
Judge Eloff J held that the minor could not be
held accountable because the contract was void, even if the minor
misrepresented his contractual capacity. The respondent was not entitled to
claim enforcement of the contract.
It was further held that the minor was not
entitled to restitution in integrum, not
because the contract was void, but because of his fraud.
Edelstein V Edelstein 1952 (3) SA 1 (A)
The facts are as follows:
The appellant was in the custody of her mother
and got married with consent of both her parents, while she was still a minor.
The appellant and her husband entered into an antenuptial contract prior to the
wedding. The contract excluded community of property, community of loss and
profit, marital power was excluded. The appellant’s mother, only the mother
assisted her in entering into the contract. The appellant’s husband died and
left a will in which the appellant was a beneficiary. The executors of the
estate framed the liquidation and the distribution account on the basis that
the marriage had been out of community of property. After being advised that
the antenuptial contract was invalid, the appellant sought an order declaring
that she had been married in community op property and directing the executors
to amend the liquidation and distribution account by awarding her half of the
net value of the joint estate. The only opposing party was the commissioner of
Inland Revenue. The commissioner held that the amount of death duties payable would
be less if the order was granted.
The legal question:
Was the contract the minor entered into, with
assistance from her mother, a valid contract?
The judgment:
The application was dismissed in the court a quo, but succeeded on appeal.
The reasoning:
The minor entered into the contract without the
consent/assistance of both her parents (mother and father). The antenuptial
contract was thus void and it was held that the parties were married in
community of property.
Wood V Davies 1934 CPD 250
The facts are as follows:
While the plaintiff was still a minor, he
inherited £10 000. The terms of the will stated that the money would remain in
a trust and that the plaintiff would only be entitled to in interest on the
capitol. During the plaintiff’s minority, the plaintiff’s guardian purchased a
house on the plaintiff’s behalf. A purchase price of £1750 was agreed on and
was payable in installments. The value of the property was £1550. Until the
plaintiff’s majority, the installments were paid out of the interest of the
inherited amount. When the plaintiff reached age of majority, a considerable
amount of the purchase price was still unpaid. The plaintiff claimed
cancellation of the contract and repayment of the amounts he had already paid
in terms of the contract. The plaintiff alleged that the contract was
prejudicial to him.
The legal question:
1.
Had
the minor’s legal guardian have the authority to enter into the contract on the
minor’s behalf?
2.
Was
the contract entered into, prejudicial towards the minor?
3.
Was
the minor entitled to restitution in
integrum?
The judgment:
Judge Sutton J held that the plaintiff is
entitled to restitution integrum and
there must be an order for the cancelation of the contract of sale and the
return of payments made on the minor’s behalf under the contract, together with
interest. The defendant is entitled to be placed in statu quo. The plaintiff had occupation of the property purchased
since May 1st 1929 and he must account the defendant for the use and
occupation of the property. The judgment was therefore in favor of the
plaintiff.
The reasoning:
Judge Sutton J held that the contract was
prejudicial towards the minor, firstly, because the property was bought for
£200 more than it was valued at and secondly, it imposed liabilities on the
plaintiff he attained when he became a major.
Dickens V Daley 1956 (2) SA 11 (N)
The facts are as follows:
The respondent, a minor, entered into a lease
agreement with the appellant. The respondent drew a cheque in favor of the
appellant, but the cheque was dishonored as payment had been stopped by the
respondent. The appellant sued the respondent for payment in the magistrate’s
court. In a special plea the respondent admitted to drawing the cheque, but
averred that he was a minor and therefore had no locus standi in iudicio and that the appellant’s claim was
accordingly unenforceable. The appellant contended that the respondent was
emancipated and was therefore liable on the cheque. The appellant relied on the
fact that the respondent had been living with his mother and stepfather and was
paying his board and lodging; that the respondent had been working as a clerk
for four years, that the respondent’s father did not exercise control over the
respondent and that he operated on
his own bank account. The Magistrate ordered absolution from the instance. The
appellant successfully appealed.
The legal question:
Was the respondent tacitly emancipated?
The judgment:
The magistrate erred in granting the absolution
from the instance. The appeal was allowed.
The reasoning:
The court held that the respondent was tacitly
emancipated, because the respondent’s father abandoned the right to exercise
power over the respondent’s mode of life and such operations. The respondent
undertook to maintain himself.
Watson V Koen H/A BMO 1994 (2) SA 489 (O)
The facts are as follows:
The respondent sued the appellant in the
magistrate’s court in terms of an agreement of sale between them relating to
course material. The appellant averred that he could not validly enter into the
agreement because he was a minor. The respondent maintained that the appellant
was emancipated. The magistrate found in favor of the respondent. The minor
successfully appealed against the magistrate’s decision.
The legal question:
Is the appellant emancipated, either tacitly or
emancipated by his parents?
The judgment:
The court found in favor of the appellant and
the appeal was successful.
The reasoning:
Judge Write R held that the respondent could
not prove clearly that the appellant was indeed emancipated, either tacitly or
by his parents.
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