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

2014 Supplementary paper

Question 1:

 

 

Arizona and Derek married each other in terms of the Civil Union Act on the 1^st 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’. 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 the 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 South African airspace, the plane disappeared. A few months later Arizona gave birth to a mentally handicapped daughter, Lexi whilst Avery (the foetus that suffered an oxygen deficiency) only managed to live for two minutes after delivery. 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 section 12(2) of the Constitution of South Africa 1996 providing for “everyone’s right to bodily and psychological integrity” as well as section 40 of the Children’s Act 38 of 2005, does George have the right to request that Arizona or Lexi to undergo blood tests. In addition what would be the requirements should Arizona have terminated the pregnancy in the second trimester of her pregnancy? Reference must be made to legislation and case law in substantiating your answer.                                                                      (20)

 

 

 

 

 

 

1.2     Should Arizona want to marry George and taking into account the fact that she is still legally married to Derek, advise and explain to her the possible remedies available to her to enable her to marry George.                                    (20)

 

 

1.3     If George, whilst under the influence of alcohol, commits murder and he then flees to Nigeria and does not intend to return RSA, is he domiciled in RSA or Nigeria? In addition, explain what affect intoxication may have on George’s legal capacities.                                                                                           (20)

 

 

1.4     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.                                                    (20)   

 

 

Question 2:

 

Donald, a 17-year old minor, lives and works in Pretoria while his parents live in Cape Town. He has a bank account in which his salary is deposited, and he fully supports himself. He rents a flat from Fred and pays his rent monthly by cheque. The last two cheques were dishonoured when they were presented for payment. Donald refuses to pay for the rent because he is a minor and therefore does not have capacity to contract.

 

2.1     Fred now approaches you for advice. Advise him with reference to authority.                                                                                                                              (10)

 

 

2.2     Suppose Donald concluded a sale agreement with the assistance of his or her

guardian and the contract were prejudicial to him. What remedy can Donald use to escape contractual liability and what can be recovered with this remedy?                                                                                                                         (10)

 

 

 

 

THE END

2011 Exam paper

Question 1:

 

Mr Crane’s will contain the following clause: "My daughter, Amanda, inherits R90 000 and her children who are alive at the date of my death will each inherits R40 000. An amount of R10 000 is bequeathed to the SPCA." Mr Crane dies on 1 April 2009. As a result of the shock of his death, a pregnant Amanda is rushed to hospital on the 4^th day of April 2009 for an emergency C-section. Whilst the umbilicus cord is still attached, Amanda’s child, Pete, managed to breathe once before dying from heart failure. Amanda has two other children, Sam and Sarah. Substantiate each answer with reference to applicable case law and legislation.

 

1.1             In lieu of the facts which natural persons will inherit from Mr Crane?                     (5)

1.2             Would the position be different should Pete have been still born?                         (5)

1.3             Which provisions of the Births and Deaths Registration Act, Act 51 of 1992, will be applicable in respect of 1.1 and 1.2 respectively?                                                             (5)

             [15]

 

Question 2:

 

 

Anne and Ben, both unmarried, lived together for two years. When they separated, Anne was pregnant. She marries Jake and later gives birth to a son, John. Anne initially agreed that Ben could have contact with John. However, two years after John's birth, Anne refused to allow Ben any further contact with John.

 

2.1       What is the principle in terms of which it is presumed that Jake is the father of the child?                                                                                                                         (5)

 

 

2.2       Inform Ben on his parental rights and responsibilities in respect of John.               (5)

 

 

2.3       Will your answer to 2.1 be different if Anne had sexual relations with Ben and Jack respectively? Motivate your answer by referring to the concept exception plurium concubentium?                                                                                                  (5)

 

 

2.4       If Anne was married to another female, Arizona, and the child was conceived by means of artificial insemination, would the child be acknowledged as Arizona’s child? Reference must be made to case law in answering the question.                              (10)

 

 

2.5       Should Ann have wished to terminate her pregnancy, does the termination of the pregnancy in terms of the Choice on Termination of Pregnancy Act 92 of 1996 infringe on her unborn child’s right to life?                                                                       (5)

 

 

                                                                                                                                    [30]

 

Question 3:

 

Joey is 31 years old. She was living and working in Pretoria until she was retrenched last month. She is now living with her mother in Benoni until she finds a new job. Joey wish however to return to Durban, where she was born. In lieu of the requirements for domicile of choice, where is Joey domiciled?                                                                                             [10]

                                                                                                                                   

 

Question 4:

 

 

Derek Ahoy, an experienced sailor, has been missing for 20 years since he departed from Cape Town harbour on his voyage to Italy.  In answering the following questions make reference to case law or legislation where possible.

 

 

4.1       Can Mrs Ahoy remarry once the presumption of death order is granted?                (5)

 

 

4.2           Briefly outline the procedure involved in bringing a common law application for the   

        presumption of death with reference to case law.                                               (10)

                                                                                                                              [15]

 

Question 5:

 

Donald, a 17-year old minor, lives and works in Pretoria while his parents live in Cape Town. He has a bank account in which his salary is deposited, and he fully supports himself. He rents a flat from Fred and pays his rent monthly by cheque. The last two cheques were dishonored when they were presented for payment. Donald refuses to pay for the rent because he is a minor and therefore does not have capacity to contract. Fred now approaches you for advice. Advise him with reference to authority.                                                                                 (10)

 

 

Suppose Donald concluded a sale agreement with the assistance of his or her guardian and the contract were prejudicial to him, what remedy can Donald use to escape contractual liability and what can be recovered with this remedy?                                                                        (5)

                                                                                                                                    [15]

 

 

 

Question 6:

 

 

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

 

6.1   A juristic act performed by a mentally ill person during a lucidum intervallum?             (3)

 

6.2 Physical disability to manage his/her own affairs.                                                       (3)

 

6.3 Intoxication.                                                                                                             (3)

6.4 Prodigality.                                                                                                              (3)

6.5 Insolvency.                                                                                                              (3)

THE END

2013 Exam 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     Considering that one of the twins is not ‘viable’, as well as considering the requirements for the beginning and end of legal personality and the provisions of the Birth and Death Registration Act 51 of 1992, advise Maradeth and Derek on whether they are obliged to register the babies, and if not, what is expected of them?                                                                                               (10)

                                                           

 

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 40 of the Children’s Act 38 of 2005, does Maradeth have the right to demand that Arizona and/or the babies must undergo blood testing? In addition what would be the requirements should Arizona have terminated the pregnancy in the second trimester of her pregnancy? Reference must be made to legislation and case law in substantiating your answer.                                                                    (20)

 

 

1.3     As Derek was not married to Maradeth and the children were born by means of surrogacy, what is the presumption regarding paternity under these circumstances. In addition discuss whether Derek would have any parental rights and responsibilities in respect of the born children. Reference must be made to legislation and case law in substantiating your answer.                           (20)

 

 

1.4     Considering that Arizona was involved in a vehicle accident, would Maradeth be successful in instituting a civil action against the Road Accident Fund, for pre-natal injury to one of the twins? Reference must be made to legislation and case law in substantiating your answer.                                                         (20)

 

 

1.5     How would Maradeth go about in having Derek declared presumably dead?                                                                                                                       (10)

 

 

 

Question 2:

 

Discuss fully the question of the liability of a minor who fraudulently misrepresents himself to an adult, or claims to be emancipated or to be acting with the necessary assistance following which the party contracts with him on these grounds. If there is liability, on what grounds is the minor liable?                                                    (10)

 

 

 

 

 

Question 3:

 

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

 

8.1     A juristic act performed by a certified mentally ill person during a lucidum intervallum?                                                                                            (5)

 

 

8.2     An intoxicated blind person shooting at a noise outside his house, killing his neighbour.                                                                                                   (5)

 

 

 

THE END

2014 Exam Paper

 

Question 1:

 

 

Arizona and Derek married each other in terms of the Civil Union Act on the 1^st 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