PVL1501 Exam Pack 2022

PVL1501 - Examination Questions
PVL1501
Exam Pack
2022
PVL1501 - Examination Questions 1
Contents
1. OCT/NOV 2021....................................................................................................................................3
Section A: Multiple-Choice Question.................................................................................................... 3
Section B...................................................................................................................................................3
2. MAY/JUNE 2021..................................................................................................................................4
Section A: Multiple-Choice Question.................................................................................................... 4
Section B...................................................................................................................................................8
3. OCT/NOV 2020................................................................................................................................. 13
Section A: Multiple-Choice Question.................................................................................................. 13
Section B................................................................................................................................................ 17
4. OCT/NOV 2019................................................................................................................................. 21
Section B................................................................................................................................................ 25
5. MAY/JUNE 2019................................................................................................................................30
Section B................................................................................................................................................ 34
6. OCT/NOV 2018................................................................................................................................. 35
Section B................................................................................................................................................ 41
7. MAY/JUNE 2018................................................................................................................................42
Section B................................................................................................................................................ 49
8. OCT/NOV 2017................................................................................................................................. 50
Section B................................................................................................................................................ 54
9. MAY/JUNE 2017................................................................................................................................55

Section B................................................................................................................................................ 59
10. OCT/NOV 2016............................................................................................................................. 60
Section B................................................................................................................................................ 64
11. MAY/JUNE 2016............................................................................................................................ 65
Section B................................................................................................................................................ 69
12. OCT/NOV 2015............................................................................................................................. 70
Section B................................................................................................................................................ 74
13. MAY/JUNE 2015............................................................................................................................ 75
Section B................................................................................................................................................ 79
14. OCT/NOV 2014............................................................................................................................. 80
Section B................................................................................................................................................ 84
15. MAY/JUNE 2014............................................................................................................................ 85
Section B................................................................................................................................................ 89
1. OCT/NOV 2021
Section A: Multiple-Choice Question
Question 1
Indicate which one of the following is not recognised as a legal subject in our law
1) a severely deformed baby
2) a mentally incapacitated child
3) an infant
4) a conceived, but unborn child
Question 2
In Road Accident Fund v Mtati the Supreme Court of Appeal held that
1) a mother may not enter into a contract on behalf of her unborn child, because legal
personality only begins at birth
2) a child whose father was killed prior to his or her birth as a result of someone else's
delict has a dependant's action for damages for loss of support against that person
3) a mother cannot waive her unborn child's right to claim maintenance as it would be
against good morals
4) It is unnecessary to use the nasciturus fiction to grant a child an action in respect
of prenatal injuries
Question 3
Which one of the following statements regarding the registration of the birth of children in terms
of the Births and Deaths Registration Act 51 of 1992 is incorrect?
1) In the case of a child born of unmarried parents notice of the birth is given by the
police officer who found the child
2) No birth may be registered unless a first name and a surname have been assigned to
the child
3) The Director-General of Births and Deaths must be notified of the birth of every child
who was born alive
4) Notice of the birth of a child who was born alive must be given within 30 days of the
child's birth
Question 4
Indicate which one of the following statements is incorrect
1) The Domicile Act 3 of 1992 does not have retrospective effect
2) When determining whether a person meets the requirement regarding physical
presence, an objective test is used
3) The acquisition of domicile is determined on a balance of probabilities
4) A person can acquire a domicile of choice at a particular place if he or she has the
intention to settle there permanently
Question 5
In Naville v Naville the court held that
1) a prisoner who has been imprisoned for life automatically acquires a domicile of choice
In prison
2) foreign military staff cannot acquire a domicile of choice in South Africa, however much
they wish to settle here permanently
3) a foreign diplomat can acquire a domicile of choice in South Africa while still in
the service of a foreign country
4) soldiers can acquire a domicile of choice at a place where they are not stationed
Question 6
In which one of the following scenarios is the child considered to be a child born of unmarried
parents?
1) After Mike and Lara had been ling together for 3 years, Lara gave birth to a baby girl,
Nicole, on 6 May 2018 Mike and Lara got marred on 23 August 2018
2) Justine and Shani entered into a valid civil union Shan was artificially inseminated
with donor sperm and as a result of the artificial insemination gave birth to a baby
girl, Maggie Justine did not consent to the artificial insemination of Shan
3) Kate was artificially inseminated with the semen of her civil union partner, Gerry As a
result of the artificial insemination Kate gave birth to a baby girl, Amelie Gerry did not
consent to his semen being used for the artificial insemination
4) After they had been living together for 5 years, Thandi and Jason entered into a
customary marriage in 2018 Thandi gave birth to a baby girl, Thabiso, on 6 May 2019
Question 7
In which one of the following cases did the Supreme Court of Appeal decide that the High Court
as upper guardian of minors has an inherent power to order blood tests in paternity disputes if
the order is in the child's best interests?
1) YM v LB
2) S v L
3) O v O
4) Nell V Nell
Question 8
Ben and Zoe are marred Zoe gives birth to a boy, Alex Ben is certain that Alex is not his child
Which one of the following can he use to validly prove that Alex is not his child?
1) Ben can prove that he used contraceptives when Alex could have been conceived
2) Ben can prove that Zoe also had intercourse with Steve when Alex could have been
conceived
3) Ben can allege that Alex does not resemble him but looks a lot like Steve
4) Ben can prove that he did not have intercourse with Anna when Alex could have
been conceived
Question 9
The statements below deal with the capacity to act of an infans Choose the only incorrect option
1) An infans may conclude a juristic act with the assistance of his or her guardian
2) The guardian of an infans must accept a donation on behalf of him or her
3) A guardian may conclude an insurance contract on the life of an infans
4) An infans may be liable on the ground of unjustified enrichment
Question 10
Indicate which one of the following statements regarding a minor's capacity to contract is
incorrect
1) When a minor wants to alienate immovable property, he or she needs the consent of all
his or her guardians
2) A minor's guardian may give express or tact consent for a single or several contracts that
a minor wants to conclude
3) A guardian may not ratify any contract after it has been concluded by a minor
4) A guardian s not allowed to enter into contracts of a closely personal nature on behalf of
a minor
Question 11
Indicate which one of the following contracts is not enforceable against a minor
1) Thabo is 16 years old Without assistance he opens an account at a mutual bank
2) Vusi, who is 15 years old, purchases a bicycle from a local dealer without any
assistance
3) Michael is 17 years old His uncle gives him a scooter as a gift He accepts this gift
without assistance
4) Bongani, who is 16 years old, drafts a will in which he deposes of his property without
his parents' assistance
Question 12
Sipho, a 15-year-old minor, concludes a contract of sale with Mr Molefe, an adult, without any
assistance In terms of the contract, Mr Molefe sells a laptop to Sipho for R9 000 The actual
value of the laptop at the time of concluding the contract is R8 000 On 18 March Sipho sells the
laptop to a friend for R6 000 He spends the money as follows R500 at the moves with friends,
R2 000 on rent and R2 000 on new clothes When Mr Molefe institutes action on 13 April Sipho
still has R1 500 in his possession Indicate which amount Mr Molefe will be able to claim from
Sipho on the ground of unjustified enrichment
1) R6 000
2) R8 000
3) R2 000
4) R5 500
Question 13
The statements below all deal with the question whether a minor may obtain contraceptives
Choose the only incorrect statement
1) Minors below the age of 12 years require the consent of their guardian to obtain
contraceptives
2) A minor who has turned 12 may buy condoms without the consent of his or her guardian
3) A minor who has turned 12 may not be provided with contraceptives other than
condoms without the consent of his or her guardian
4) A minor who obtains contraceptives is entitled to confidentiality in this regard
Question 14
In Lange v Lange the court held that
1) the test for mental illness is whether a person's mind was such that he or she could
understand and appreciate the transaction into which he or she purported to enter
2) a person is mentally ill of he or she understands the nature and consequences of his or
her juristic acts but is motivated by delusions caused by mental illness
3) a mentally ill person cannot enter into legal transactions, even with the assistance of his
or her curator
4) whether a person is mentally ill is a question of fact which must be determined on a
preponderance of probabilities
Question 15
Indicate which one of the following statements is correct
1) An interdicted prodigal may not be held accountable for delicts he or she has committed
2) An interdicted prodigal may not sue for divorce without the assistance of his or her
curator
3) An interdicted prodigal may not be a director of a company
4) An interdicted prodigal has no capacity to act
Section B
Question 1 [units 1 to 7]
(a) Mrs Naidoo is a client of ABC Bank She invested some money with the bank on the advice
of Mrs Kheti, a functionary of the bank However, she Is unhappy about the interest she
earned on the investment Mrs Naidoo now wants to take the matter to court She is not sure
whether she should sue the bank or Mrs Kheti Please advise her in this regard and provide
a reason for your answer
(2)
Mrs Naidoo can sue ABC Bank, as Mrs Kheti acted in her capacity as a functionary of the ABC
bank. The reason as to why Mrs Naidoo can institute legal action against the ABC Bank,
because the bank is a legal subject that enjoys legal existence independent from that of its
members or natural persons. Although ABC Bank as a juristic person must always act through
its functionaries (Mrs Kheti), it is the Bank that acquires rights, duties and capacities and not the
functionaries themselves in their personal capacities
(b) In terms of the nasciturus fiction, a situation may anise where a nasciturus would have had
certain clams or rights had he or she already been born In such a case, the legal position Is
kept in abeyance until the nasciturus is born alive Briefly explain what will happen to these
claims or rights if the nasciturus dies during birth Provide a reason for your answer
(2)
There is a condition that the application of the nasciturus fiction must be to the advantage of the
nasciturus. If the nasciturus dies during birth the nasciturus fiction will not be applied (not come
into operation) as the only persons who will benefit from the application of the fiction are third
persons, such as the child’s intestate heirs and not the child himself or herself.
(c) In terms of the Choice on Termination of Pregnancy Act 92 of 1996, a pregnancy may under
certain circumstances be terminated after the 20" week of the gestation period Name these
circumstances
(3)
From the 13th week up to and including the 20th week of the gestation period if a medical
practitioner, after consultation with the pregnant woman is of the opinion that:
 The continued pregnancy of the pregnancy would pose a risk of injury to the woman’s
physical or mental health
 There is a substantial risk that the foetus would suffer from severe physical or
mental abnormality
 The pregnancy resulted from rape or incest
 The continued pregnancy would significantly affect the woman’s social or economic
circumstances.
(d) Write down the presumption of death procedure that will be instituted in each of the following
cases
(i) Skhuhle Banda was shot and killed during an armed robbery at her home
(1)
Statutory presumption of death
(ii) Michael Sibanyone went fishing off the coast at Lambert's Bay The boat capsized, and
Michael was never seen again
(1)
Common law presumption of death
(e) Refilwe's husband, Ntokozo, has been missing for 10 years Last year the court granted an
order presuming him to be dead Answer the following questions
(i) Refilwe wants to know if Ntokozo's estate may be divided among his heirs She also
wants to know what will happen regarding hrs estate f he is not dead and returns at a
later stage
(2)
Ntokozo's estate may be administered and may be divided among his heirs. If Ntokozo returns,
he (or any interested party), may approach the High Court for an order that his estate may not
be further divided. Anyone who has received benefits must return either the benefits or their
value.
(ii) Refilwe wants to know if she will be able to remarry now that the presumption of death
order has been granted Explain to her whether her marriage has been terminated and
provide reasons as well as authority for your answer
A common law presumption of death does not automatically dissolve Ntokozo and Refilwe's
marriage. Refilwe must make a separate application for an order dissolving her marriage. The
court that pronounces a presumption of death is empowered to make an order dissolving a
person's marriage at the same time that the presumption is made or any time thereafter. The
court may not grant the order on its own initiative. The court is not bound to grant the application.
It has a discretion in this matter, but it is improbable that a court would be prepared to issue a
presumption of death but refuse to dissolve the missing person's marriage. The result of the
order is that the marriage is deemed to have been dissolved by death for all purpose. Authority:
Sec 1 of the Dissolution of Marriages on presumption of Death Act 23 of 1979 ( you do not have
to mention the number and the year of the Act)

(a) Column A of the table below contains a list of definitions dealing with a person's standing In
the law Select the relevant concept from the list below and write it down in column B next to
the appropriate definition, so that column A matches column B
Legal capacity
Capacity to litigate
Status
Capacity to act
Column A Column B
A person's standing in the law Status
The capacity to have rights and duties Legal capacity
The capacity to perform valid juristic acts Capacity to act
The capacity to appear in court as a part Capacity to litigate
of a lawsuit
(b) Cheri is 19 years old and mentally incapacitated She was born in Bloemfontein A curator
was appointed for her when she turned 18 Chen's curator is domiciled in Pretoria, where
Cher's parents live However, Cheri currently lives with her sister in Stellenbosch With
reference to authority and reasons, indicate where Cher is domiciled
(4)
Section 2(1) of the Domicile Act provides that anyone who does not have the capacity or the
mental capacity to make a rational choice to acquire a domicile of choice, is domiciled at the
place with which he or she is most closely connected. The law assigns a domicile to them for as
long as their mental incapacity lasts, which is called an assigned domicile, a domicile by
operation of the law, or the domicile of closest connection. Since Cheri is living with her sister in
Stellenbosch, she is domiciled in Stellenbosch
(c) In terms of section 21(1) of the Children's Act 38 of 2005, an unmarried biological father
acquires full parental responsibilities and rights of his child in certain circumstances discuss
those circumstances
(5)
The Children's Act which replaced the common-law that denied unmarried fathers’ inherent
parental authority with rules which, inter alia, automatically confer parental responsibilities and
rights on certain unmarried fathers.
In terms of section 21(1)(a) of the Children's Act Kgomotso indeed has full parental
responsibilities and rights in respect of Kabelo because he lived with Rose, Kabelo’s mother in a
permanent life partnership when Kabelo was born. In terms of section 21(1) (b), he can acquire
full parental responsibilities and rights regardless of whether he ever lived with the mother,
provided that he:
i. consents or successfully applies to be identified as the child's father or pays damages in

terms of customary law
ii. contributes or has attempted in good faith to contribute to the child's upbringing for a
reasonable period
iii. contributes or has attempted in good faith to contribute towards expenses relating to the
child's maintenance for a reasonable period.
(d) Bonolo Ndou is the daughter of Mr Moreki and Miss Ndou, who are not and never have
been marred to each other Mr Moreki was married to Mrs Moreki Three children were born
of Mr and Mrs Moreki's marriage Mr Moreki died intestate a month ago Bonolo wants to
know if she can inherit from her father's estate Advise her with reference to authority
(3)
In terms of section 1 (2) of the Intestate Succession Act 81 of 1987, the fact that a child was
born of unmarried parents does not affect the capacity of one blood relation to inherit the
intestate estate of another. Children who are born of unmarried parents can inherit intestate
from both parents (and more distant blood relations) and that both parents (and more distant
blood relations) can inherit intestate from the children.

(a) Fill in the missing words
Section 28(2) of the Constitution of the Republic of South Africa, 1996 provides that a child's
best interests (two words) are of paramount importance two words) in every matter concerning
the child
(4)
(b) Normally a guardian does not incur personal ability in terms of a minor's contract, regardless
of whether the guardian assists the minor or acts on behalf of the minor There are, however,
four instances where a guardian may be held liable in respect of a contract concluded by a
minor Name these four instances
(4)
A minor’s guardian will incur personal liability for contracts concluded by the minor in the
following circumstances:
(i) the minor acted as his or her agent
(ii) the guardian guaranteed the minor’s performance
(iii) the guardian bound himself or herself as surety for the minor’s performance
(iv) a guardian may incur liability on the basis of negotiorum gestio
(c) Can an ante nuptial contract a minor concluded without the necessary consent be ratified by
the minor's guardian after the marriage has taken place? Discuss with reference to case law
(4)
There are some contracts the guardian cannot conclude on the minor's behalf although the
guardian may consent to the minor's entering into such contracts. Example an agreement of a
closely personal nature (such as an antenuptial contract), and a contract that will come into
operation only after the minor has attained majority. In Edelstein v Edelstein it was held that an
antenuptial contract that was concluded without the necessary consent cannot be ratified by the
minor or the minor's guardian once the marriage has taken place, because ratification would
amount to an impermissible change of the matrimonial property system
(d) Nomsa is 16 years old and lives with her parents in Mbombela where she also attends
school A few weeks ago Nomsa bought a car for R50 000 from Mr Sbanyone Nomsa
pretended to be 19 years old and showed a fake identity document to Mr Sbanyone to prove
that she is indeed a mayor Nomsa pad a deposit of R10 000 and agreed to pay Mr
Sibanyone R2 000 per month until the full purchase price was paid However, after three
months she realised that she could not afford the monthly instalments Answer the following
questions
(i) What is the purpose of resttutio in integrum?
(1)
Restitutio in integrum is an extraordinary legal remedy whereby a minor can escape liability if he
or she contracted with the assistance of his or her guardian (or the guardian contracted on his
or her behalf) and the contract was prejudicial to the minor at the moment it was made. This
remedy restores the parties to a contract to their previous positions before the agreement.
(ii) Would Nomsa be able to use resttuto in integrum as a remedy in thus scenario?
Answer "yes" or "no" and give a reason for your answer
(2)
No, Nomsa did not have consent to enter into such a contract, A general rule, a minor cannot
incur contractual liability if he or she did not have his or her guardian’s assistance in concluding
the contract. Since this contract is not valid and not binding Restitutio in integrum cannot be a
remedy. The remedy available to the minor is rei vindicatio and money by a condictio
(iii) What remedy would Mr Sbanyone be able to use to hold Nomsa liable for the
outstanding instalments in terms of the contract? Also name the requirements that
must be met by Mr Sbanyone in order to succeed with this remedy
(3)
A minor who makes a misrepresentation (like Nomsa did in this question) commits a delict and
can therefore be held delictually liable. This means that the prejudiced party (Mr Sbanyone ) has
a claim for damages against the person committing the delict (the minor).
A second remedy available to Sbanyone is A minor who makes a misrepresentation, may be
held liable ex lege (by force of law) on the ground of unjustified enrichment.
(e) Write down the minimum ages at which a minor may

(i) witness a will
(1)
14 Years (As from the age of 14 years minors may witness a will, and once they have turned 16,
they may make a will)
(ii) be a depositor with a mutual bank
(1)
16 Years (a minor over the age of 16 years may be a member of or a depositor with any mutual
bank.).
(iii) make his or her own will
(1)
16 years, they may make a will

(iv) incur criminal ability in terms of the Child Justice Act 75 of 2008
(1)
A minor's capacity to he held criminally accountable is governed by the Child Justice Act 75 of
2008 - A child between 10 and 14 years of age is presumed to be criminally unaccountable
(f) Name the three stances when a minor may undergo an HIV test in terms of the Children's
Act 38 of 2005
(3)
A minor may undergo an HIV test only if:

 the test is necessary to establish whether a health worker may have contracted HIV due
to contact in the course of a medical procedure with any substance from the minor's
body that may transmit HIV;
 any other person may have contracted HIV due to contact with a substance from the
minor's body that may transmit HIV, and a court has authorised the test; or
 the test is in the child's best interests and the necessary consent has been given for the
test.
Question 4 [units 20-23]

(a) Indicate whether each of the following statements is TRUE or FALSE
(i) A person who enters into a valid customary marriage before he or she turns 18
becomes a mayor for all purposes
(1)
TRUE
(ii) A person who enters into a void marriage before he or she turns 18 becomes a major
for all purposes
(1)
FALSE (does not affect the status of the parties or confer any of the consequences of civil)
(iii) A person who enters into a valid civil marriage before he or she turns 18 becomes a
major for all purposes
(1)
TRUE
(iv) A minor cannot acquire minority status by entering into a civil union
(1)
TRUE
(a) Write a brief paragraph about the legal status of a mentally ill person
(4)
A mentally ill person has no capacity to act or locus standi in iudicio. A mentally ill person cannot
enter into legal transactions or litigate even with assistance of his or her curator. The curator
must conclude transactions and sue on behalf of the mentally ill person. A mentally ill person,
unlike a minor, cannot enter into transactions, even if he or she acquires only rights and the
other party incurs only duties. Any transaction a de facto mentally ill person enters into is void
and cannot be ratified. However, a juristic act a mentally ill person performs during a lucid
interval is valid and enforceable.
(b) Define the term "insolvent"

(2)
A person is insolvent if his or her liabilities exceed his or her assets. If the person's estate is
sequestrated by the High Court as a result of this state of affairs, the sequestration affects the
person's legal capacity, capacity to act and capacity to litigate.
An insolvent has limited capacity to litigate when his estate is sequestrated. All civil proceedings
by or against the insolvent are staged until a trustee is appointed to act on behalf of the
insolvent estate. The insolvent may sue in his own name without the trustee’s consent.
2. MAY/JUNE 2021
Question 1
Which one of the following entities is not recognised as a juristic person in our law?
1) South African Airways
2) Makwela and Sons Partnership
3) VBS Mutual Bank
4) University of Namibia
Question 2
Choose the only correct statement below A presumption of death can be pronounced in terms of
the common law if
1) more than seven years have passed since the disappearance of the missing
person
2) the High Court has been approached by an officer of the local magistrate's court
3) the applicant proves beyond reasonable doubt that the missing person is dead
4) the High Court in whose jurisdiction the missing person was domiciled is approached
Question 3
Indicate which one of the following statements regarding presumption of death is correct
1) The court may appoint a curator bonus to administer a missing person's affairs
without pronouncing a presumption of death
2) Once the court has pronounced a presumption of death t means that there is an
irrebuttable presumption that the person is dead
3) If a common-law presumption of death is expressed, the result is that it automatically
dissolves the marriage of the surviving spouse
4) A statutory presumption of death can only be recorded f the judicial officer is certain on a
preponderance of probabilities that the person is dead
Question 4
Which one of the following attributes or factors is not an attribute or factor that determines a
person's status?
1) prodigality
2) domicile
3) occupation
4) Intoxication
Question 5
Legal capacity Is
1) the capacity to perform valid juristic acts
2) the capacity to be held accountable for crimes and delicts
3) the capacity to appear in court as a party to a lawsuit
4) \the capacity to have rights and duties
Question 6
The following statements deal with domicile Indicate which one of the statements is incorrect
1) The place where a person permanently resides always coincides with his or her
domicile
2) No one loses hrs or her domicile until he or she has acquired a new domicile
3) A prisoner who was imprisoned for life automatically acquires a domicile of choice in
prison
4) Sex and marital status no longer play a role in the acquisition of a domicile of choice
Question 7
Which one of the following options cannot be used by a man to rebut the presumption of
paternity?
1) Proof that he is sterile
2) Evidence that he used contraceptives
3) DNA tests that indicate that he is not the child's father
4) Proof that he did not have sex with the child's mother when the child could have been
conceived
Question 8
The following statements deal with children born of unmarried parents Indicate the only correct
option
1) When an unmarried parent dies, his or her estate is not responsible for the child's
maintenance
2) A child who is born of unmarried parents can inherit intestate from both parents
3) An unmarried father must approach the High Court for an order to confer parental
responsibilities and rights on hmm
4) A child born of unmarred parents may never be adopted by his or her biological father
Question 9
Choose the only correct answer. The biological father of a child who is not or was never married
to the mother of the child, automatically acquires full parental responsibilities and rights in
respect of the child if he complies with the requirements in section
1) 19
2) 20
3) 21
4) 22
Question 10
Indicate which one of the following contracts concluded by four-year-old Nomsa is valid
1) On her behalf Nomsa's father buys her a new doll as well as clothes for the doll at
the toy shop
2) With her guardian's assistance Nomsa accepts a donation of R1000 from her uncle
3) Without the assistance of her father or mother, Nomsa buys chocolates at the
supermarket
4) With her father's assistance Nomsa buys a bicycle from her brother's friend, Ntokozo
Question 11
Without his guardian's assistance Tommy, a 16-year-old boy, concludes a contract with Leonard,
a major. In terms of the contract, Tommy sells his laptop to Leonard Tommy delvers the laptop to
Leonard, after which the contract is repudiated What remedy is available to Tommy in order to
reclaim his laptop?
1) negotiorum gestio
2) restitutio in integrum
3) condictio
4) rei vindicatio
Question 12
John, a 17-year-old boy, wants to enter into a civil union, From the options below, choose the
only correct answer
1) In order for John to enter into a valid civil union, he needs the consent of his guardian
2) In order for John to enter into a valid civil union, he has to wat until he turns 18
3) In order for John to enter into a valid civil union, the court has to authorise rt
4) In order for John to enter into a valid civil union, he has to be emancipated
Question 13
Indicate the only correct statement Sarah is 17 years old and has recently concluded a valid civil
marriage with Tom, who is 21 years old Soon after the marriage Tom was killed in an aeroplane
crash. The effect of Tom's death will be that
1) Sarah's minority will revive
2) the marriage will be void
3) Sarah will remain a major
4) the marriage will be voidable
Question 14
Indicate which one of the following statements regarding emancipation is incorrect:
1) Only the High Court within whose area of jurisdiction a minor resides may
emancipate the minor
2) If a minor has no parents, the minor's legal guardian may emancipate the minor
3) The onus of proving emancipation rests upon the person who alleges that it has taken
place
4) Ether parent may emancipate a child, provided that the parent has guardianship of the
child
Question 15
Which one of the following statements is correct?
1) An insolvent has no capacity to act
2) An alcoholic has no capacity to act
3) A person who is seriously ill has no capacity to act
4) A person who is mentally ill has no capacity to act
Section B
(a) One of the entities that are recognised as juristic persons in our law, is associations which
comply with the common-law requirements for the recognition of legal personality List these
three common-law requirements
(3)
At common-law, juristic persons are known as universitates. The three common requirements
that associations must meet in order to be recognised as juristic persons are:
1. The association must have a continuous existence irrespective of the fact that its
members may vary.
2. It must have rights, duties and capacities or be able to have rights, duties and capacities
in its own right.
3. Its object must not be the acquisition of gain.
(b) During the existence of Jamie Clarkson and Juliette May's marriage, Juliette gave birth to a
baby girl, June. June bore her father's surname (Clarkson) When June was four years old,
the couple got divorced Two years after the divorce, Juliette fell in love with Mark Hammond,
and they got married a year later After the marriage, Juliette took Mark's surname She would
Ike to have June's surname changed to correspond to her new married surname Advise her
with reference to authority
(4)
If the mother enters into a new marriage or civil union, she may apply to have the child's
surname changed to the surname she bears, she needs the written consent of the child's father
as well as the written consent of her new husband or civil union partner, unless the court
dispenses with consent. If the mother has sole guardianship, she does not need the father's
consent, but she still needs the consent of her new husband or civil union partner, unless the
court dispenses with consent.
Juliette needs to follow application procedures to change June’s surname. As mentioned above
the general rule is that Juliette needs the written consent of June’s father, Jamie, as well Mark
Hammond, the new husband, unless the court dispenses with the consent.
(c) The table below (column A) contains extracts from decisions that deal with the protection of
the interests of unborn children. The list of cases in which these decisions were delivered
follows below Write the name of the relevant case In which a particular decision was
delivered in column B of the table
(8)
 Road Accident Fund v Mtatr

 Chisholm v East Rand Propnetary Mines Ltd
 Shields v Shields
 Ex parte Boedel Steenkamp
Column A Column B
A child in is mother's womb Is presumed to be alive for the purposes Ex parte Boedel
of succession, provided the child is subsequently born alive and that Steenkamp
it is to the advantage of such child
An agreement by a mother that waives her unborn child's right to Shields v Shields
maintenance is contrary to the legal convictions of the community
A child whose father was killed prior to his or her birth as a result of Chisholm v East Rand
someone else's delict has a dependant's action for damages for loss Propnetary Mines Ltd
of support against the person who committed the delict
It is unnecessary to use the nasciturus fiction to grant a child an Road Accident Fund v
action for prenatal injuries Mtatr

(a) Study the following scenarios and then answer the questions that follow
(i) Refilwe is 21 years old She was living and working in Cape Town until a month ago
when she was retrenched. She is now living with a friend in Port Elizabeth while she is
looking for another job Where is Refilwe domiciled? Provide a reason and authority for
your answer
(3)
As Refilwe is a major, and therefore, she has the capacity to acquire a domicile of choice (s 1(1)
of the Domicile Act). The two requirements for acquiring a domicile of choice is that a person
must be lawfully present in place and have the intention to settle for an indefinite period. In this
case Refilwe does not have the intention of settling an indefinite, and therefore is domiciled in
Cape Town. The Domicile Act (1) provides that a person does not lose their domicile until he or
she has acquired another domicile, neither does Refilwe they need to be continuously present in
Cape Town in order for her to be domiciled there
(ii) Vusi is 20 years old and mentally incapacitated He was born in Durban where he also
lived with his parents until they were divorced After the divorce, his mother moved to
Polokwane, while his dad stayed in Durban Since the divorce, Vusi's grandmother, who
lives in Modimolle, has been taking care of him Where Is Vusi domiciled? Provide a
reason for your answer
(3)
operation of the law, or the domicile of closest connection. Since Vusi is living with his
grandmother in Modimolle, he is domiciled in Modimolle
(iii) Thandi is a 7-year-old girl She was born in Cape Town where she lived with her parents
until her father died last year After her father's death, her mother moved to
Johannesburg Since her father's death, Thandi has been staying with her aunt In
Durban where she also attends school Where is Thandi domiciled? Provide a reason
for your answer
(2)
Section 2(1) of the Domicile Act 3 of 1992 provides that a person who is incapable of acquiring a
domicile of choice (i.e. among others, a minor) is domiciled at the place to which he or she is
most closely connected. Therefore, Thandi is domiciled in Durban.
(b) Parentage is usually based on the biological fact of being genetically related to the child
However, in terms of section 1(1) of the Children's Act 38 of 2005 three categories of
persons are excluded from legally qualifying as a child's "parent" Name the three categories.
(3)
 The biological father of a child who was conceived through rape of or incest with the
child's mother.
 Any person who is biologically related to a child by reason only of being a gamete
donor for purposes of artificial fertilisation.
 A parent whose parental responsibilities and rights in respect of the child have
been terminated.
(c) YM v LB 2010 (6) SA 338 (SCA) deals with the power of a court to order scientific tests on a
blood or other sample from a child in a paternity dispute Very briefly (in one or two
sentences), write down what the court held in this case
(3)
In YM v LB 2010 (6) SA 338 (SCA) the Supreme Court of Appeal confirmed that the High Court
as the upper guardian of minors has the inherent power to order such tests in paternity disputes
if the order is in the child’s best interests (Heaton pp 61–62). If Nsizwa thus were to go to court
to obtain an order to force Nancy to submit Owami to DNA tests, he would succeed if the court
deemed these tests to be in Owami’s best interests.
(d) Name the four components of parental responsibilities and rights

(4)
The four components of parental responsibilities and rights as defined in section 1 of the
Children’s Act are:
(1) Care
(2) Contact
(3) Guardianship
(4) Maintenance
(e) List two ways in which the status of a child born of unmarred parents can be changed to that
of a child born of marred parents
(2)
The status of children born of unmarried parents may be changed as follows:

 by the subsequent marriage or civil union between the child’s parents (Heatonp 77)
 by adoption (Heaton p 77)

(a) Indicate whether each of the following statements is TRUE or FALSE
(i) An infans has no capacity to act
(1)
TRUE
(ii) An infans is someone below the age of 12 months

(1)
TRUE
(iii) An infans can be held criminally liable because liability is based on fault.
(1)
FALSE
(b) On 5 April 2019 and without the assistance of her guardian Andile, a 17-year-old minor,
concludes a contract of sale with Nadeem, a 30-year-old businessman Andile does not
misrepresent her age to Nadeem In terms of the contract, Andile buys a Rolex wristwatch
from Nadeem for R20 000 Andile pays a deposit of R1 000 and Nadeem gives the watch to
her Thereafter, Andile refuses to make any further payments on the ground that she is a
minor and not liable in terms of the contract. On 22 April Nadeem Institutes a claim for
payment Use these facts to answer each of the following questions
(i) Is Andile liable to Nadeem and, if so, on what ground? Refer to case law to
substantiate your answer
(3)
(ii) Suppose that Andile lost the watch a week after she received it. Is she liable to
Nadeem? Provide a reason for your answer
(2)
(iii) Suppose that Andile does not lose the watch, but sells it to her friend for R10 000 on
12 April She uses R500 of this money to buy herself a new pair of jeans because her
only other pair of jeans was badly torn, R1 500 on a massage at a spa, and the
remaining R8 000 she deposits into her savings account Is she liable to Nadeem and,
if so, for what amount? Explain your answer with reference to each amount
mentioned
(5) (5)
(c) Use the same facts as in (b) above, but now assume that Andile did have her guardian's
consent to enter into the contract Answer each of the following questions.
(i) Is Andile liable to Nadeem and, if so, on what ground?
(2)
(ii) A week after the transaction, Andile finds out that the Rolex is a fake, worth less than
R100 She now approaches you for advice Explain to her what remedy is available to her,
and list the requirements for this remedy
(3)
(iii) Again, suppose that a week after the transaction Andile finds out that the Rolex Is a fake,
worth less than R100 Five years later, at the age of 22, she decides that she wants her
money back Does Andile have any remedy? Provide an explanation for your answer
(3)
(d) Bongile is a 12-year-old boy who is mentally incapacitated One Saturday morning, while his
parents are out shopping, he goes to the local hospital because he has a rash on his back
and wants treatment for it. Explain to Bongile what the legislation provides regarding
consent to medical treatment, and advise the doctor whether he may treat Bongile
(4)
A minor who is below the age of 12 years may not have medical treatment (same applies to an
operation) without his or her guardian's consent. The guardian's consent to medical treatment
is also needed if the minor has already turned 12 but is immature and does not have the mental
capacity to understand the benefits, risks and social implications of the treatment.
Section 129 of the Children’s Act 38 of 2005 suggests that a minor who has already turned 12 is
sufficiently mature and has the mental capacity to understand the benefits, risks, social and
other implications of the medical treatment, the consent of his or her guardian is not needed (or
the medical treatment of his or her child). However, in terms of consent to an operation he or
she must still be "duly assisted" by his or her guardian.
(a) List three ways in which minority may be terminated
(3)
Minority may be terminated in the following ways:

(i) Attainment of the prescribed age
(ii) Marriage or civil union
(iii) Venia aetatis and release from tutelage
(iv) Emancipation
(b) Compare the legal capacity of an interdicted prodigal with the legal capacity of an insolvent
(4)
The limitations on an interdicted prodigal's legal capacity relate to his or her participation in
commercial dealings and handling finances, they are barred from being a director of a company
or a trustee of an insolvent estate.
An insolvent person's legal capacity is influenced by the sequestration of his or her estate.
Insolvent is barred from certain offices such as director of a company, mutual bank or a trustee
until they are rehabilitated by an order of the High Court.
(c) An insolvent may only enter into contracts under certain circumstances If the insolvent
enters into a contract in breach of these provisions, the contract is nevertheless valid if the
following requirements are met
(3)
If the insolvent enters into a contract in breach of these provisions, the contract is nevertheless
valid if the following requirements are met:
(1) The property the insolvent disposed of was acquired after sequestration.
(2) The disposition was for valuable consideration.
(3) The person with whom the insolvent transacted was unaware and had no reason to
suspect that the estate was under sequestration.
3. OCT/NOV 2020
Question 1
The statements below deal with the Births and Deaths Registration Act 51 of 1992 Choose the
only incorrect option
1) No birth may be registered unless a forename and a surname have been assigned to the
child
2) A child born of unmarred parents may be registered under both parents' surnames
joined together as a double-barrel surname
3) Notice of a birth must be given by the child's parents within 30 days of the birth of the
child
4) The regulations prescribe that the notice of birth must be accompanied by certain
documents such as the fingerprint of the child
Question 2
In Road Accident Fund v Mtati the Supreme Court of Appeal held that
1) a mother may not enter into a contract on behalf of her unborn child, because legal
personality only begins at birth
2) the principles of our law are flexible enough to extend the nasciturus fiction to the field of
delict
3) a mother cannot waive her unborn child's right to calm maintenance as it would be
against good morals
4) it is unnecessary to use the nasciturus fiction to grant a child an action in respect
of prenatal injures
Question 3
Indicate which one of the following statements is incorrect In terms of the Sterilisation Act 44 of
1998 the following requirements have to be met before a person who has reached the age of 18
may be sterilised
1) The person to be sterilised must give voluntary consent.
2) The person must be advised that consent can be withdrawn at any time
3) The consent of the person's parent, spouse or guardian is required
4) The person need not be married or a party to a civil union
Question 4
The statements below relate to status Choose the only incorrect one·
1) All human beings have the capacity to perform valid juristic acts
2) The capacity to litigate is the capacity to appear in court as a party to a lawsuit
3) A person's status is the aggregate of his or her capacities
4) Legal capacity is the capacity to have rights and duties
Question 5
In Naville v Naville it was decided that
1) soldiers can acquire a domicile of choice at a place where they are not stationed
2) a prisoner who has been imprisoned for life automatically acquires a domicile of choice
in prison
3) a foreign diplomat can acquire a domicile of choice in South Africa while in the
service of a foreign country.
4) foreign military staff cannot acquire a domicile of choice in South Africa as their
residence in this country is not voluntary
Question 6
From the statements below, choose the only incorrect one in terms of the Children's Act 38 of
2005 (s 18(2)), parental responsibilities and rights of a child include
1) caring for the child
2) acting as the child's guardian
3) maintaining contact with the child
4) registering the child's birth
Question 7
In terms of section 21(1) of the Children's Act 38 of 2005 an unmarried biological father acquires
full parental responsibilities and rights in respect of his child in certain circumstances Which one
of the following options is not one of the circumstances listed in section 21(1) in which an
unmarried father can acquire full parental responsibilities and rights?
1) He lives with the child's mother in a permanent life partnership when the child is born
2) He successfully applies to be identified as the child's father or pays damages in terms\ of
customary law
3) He contributes to the child's upbringing and maintenance for a reasonable period
4) He enters into a civil marriage or a civil union with the child's mother after the
child's birth
Question 8
Which one of the following factors cannot be taken into account when proof is sought that a
particular man is not the father of a particular child?
1) the fact that contraceptives were used
2) absence of sexual intercourse
3) sterility
4) DNA tests
Question 9
Without his guardian's assistance John, a 12-year-old boy, concludes a contract with Vusi, a
major. In terms of the contract, Vusi sells his laptop to John. John pays a deposit to Vusi, after
which the contract is repudiated What remedy is available to John in order to reclaim his deposit?
1) restitutio in integrum
2) rei vindicatio
3) condictio
4) negotiorum gestio
Question 10
Choose the only incorrect option A guardian incurs personal liability for a minor's contract if the
1) minor concludes a contract with the consent of his or her guardian
2) minor concludes a contract as his or her guardian's agent.
3) minor's guardian binds himself or herself as surety for the minor
4) minor's guardian guarantees performance by the minor
Question 11
In which case did the Supreme Court of Appeal authoritatively reject the benefit theory?
1) Edelstein v Edelstein
2) Louw v MJ & H Trust {Ply} Ltd
3) Landmann v Mienie
4) Nel v Divine, Hall & Co
Question 12
Which Act governs a minor's capacity to be held criminally accountable?
1) Criminal Law Amendment Act 32 of 2007
2) Children's Status Act 82 of 1987
3) Children's Act 38 of 2005
4) Child Justice Act 75 of 2008
Question 13
1) A minor has locus standi in iudicio in civil proceedings
2) The High Court may not assist a minor in particular Litigation
3) A minor does not need his or her guardian's assistance in criminal proceedings
4) In all civil cases, a minor must be assisted to litigate
Question 14
Indicate which one of the following statements regarding emancipation is incorrect
1) If a minor has no parents, the minor's legal guardian may emancipate the minor
2) The onus of proving emancipation rests upon the person who alleges that it has taken
place
3) An emancipated minor may get marred without his or her guardian's consent
4) Ether parent may emancipate a child, provided that the parent has guardianship of the
child
Question 15
Indicate which one of the following statements regarding mental illness is correct
1) A judicial declaration that a person is mentally ill in itself affects the person's capacity to
act
2) A juristic act performed during a lucid interval by a person who has been declared
mentally ill Is voidable
3) A mentally ill person cannot be liable on the basis of negotiorum gestio
4) The running of prescription cannot be completed against a person while he or she
is mentally ill
Section B
(a) Consider the entities in the list below Write down only those entities that are recognised as
juristic persons in our law
(i) The Reformed Church of Africa
(ii) The Nkos Family Trust
(iii) Nel, Sibanyone and Partners
(iv) South African Democratic Teachers' Union
(2)
The Reformed Church of Africa; South African Democratic Teachers' Union
(b) Complete the following statements by providing the missing words

Any person's surname may be changed for good and sufficient reason in the case of a minor,
the application for the change must be made by ether of the child's parents
(3)
(c) There are two requirements that have to be met for the nasciturus fiction to come into
operation What are these requirements?
(2)
The requirements for the operation of the nasciturus fiction are as follows:
 The nasciturus must have been conceived at the time that the benefit would have
accrued to him or her.
 The nasciturus must subsequently be born alive.
(d) Refilwe, who is 21 weeks pregnant, wants to have an abortion because she is afraid that
she will not be able to support a child Advise her whether she will be able to have an
abortion at this stage of the pregnancy Also indicate under what circumstances a medical
practitioner will agree to terminate her pregnancy at this stage Refer to authority in your
answer
(5)
The Choice on Termination of Pregnancy Act 92 of 1996 permits termination of pregnancy on

demand during the first 12 weeks of the gestation period. However Refilwe is 21 weeks
pregnant where the act states that after 20th week of the gestation period a pregnancy may be
terminated only if a medical practitioner, after consultation with another medical practitioner or a
registered midwife who has undergone the prescribed training course, is of the opinion that the
continued pregnancy will do any of the following:
 Endanger the woman's life.
 Result in severe malformation of the foetus;
 Pose a risk of injury to the foetus
Against the above, Refilwe cannot have her pregnancy terminated on demand.
(e) Joe has been missing for seven years after he went surfing off the West Coast His body has
never been found His wife, Mpho, wants to apply for a common-law presumption of death
Will the fact that Joe has been missing for seven years be a determining factor when the
court is approached to grant an order? Discuss with reference to authority
(3)
Initially our law followed the English rule according to which an order presuming a person's
death is granted after an absence of seven years. However, in the case of Re Beaglehole and
Ex parte Pieters the question whether mere prolonged absence will persuade the court to issue
a presumption death was answered, it was held that length of absence is only one factor. The
court held that an application for a presumption of death should be left to the discretion of the
judge, hence the period of absence of a person is not required to order a presumption of death.
A Judge should take into consideration age at date of disappearance, position in life,
occupation, whether exposed to any special risk / danger, etc. and deal with each case upon its
merits.

(a) In column A, write down the term that corresponds with the statement in column B
Column A Column B
Capacity to act The capacity to perform valid juristic acts Is referred to
as
domiciled The place where a person Is legally deemed to be
constantly present for the purpose of exercising his or
her rights and fulfilling hrs or her obligations, even in
the event of his or her factual absence, Is known as
A child born of parents who could not have marred each
other or could not have entered into a civil union with
each other at the time of the child's conception because
they were too closely related, is called
A child born as a result of the artificial Insemination of a
woman with the semen of her male civil union partner
who has not consented to the fertilisation is a child
born of
(b)
(i) Lesiba is a 20-year-old male who is mentally incapacitated as a result of having been
in a car accident three years ago Since the accident, he has been living with his
younger sister in Cape Town His mother lives in Durban and often visits him Where is
Lesiba domiciled? Write down only the name of the place of domicile
(1)
operation of the law, or the domicile of closest connection. Therefore, Lesiba is domiciled in
Cape Town
(ii) Maria, a 30-year-old woman, has been living and working in Johannesburg for the
past five years She has told her friends that she would one day like to Iivo in George,
as it Is incredibly beautiful there Where is Mana domiciled? Write down only the name
of the place of domicile
(1)
As Maria is a major, and therefore, she has the capacity to acquire a domicile of choice (s 1(1)
case Maria does have the intention of settling an indefinite, however is never present and
therefore is domiciled in Johannesburg. The Domicile Act (1) provides that a person does not
lose their domicile until he or she has acquired another domicile.
(c) Paternity of a child can be established by using scientific tests Where the parties did not
voluntarily submit themselves and/or the child to blood or DNA testing, the courts have on a
few occasions been in the situation where they had to deliberate on their power to order
blood or DNA tests to determine paternity Name two cases in which it was held that the
court could make an order that scientific tests be performed for this purpose
(4) (4)
Until recently the position was uncertain, In S v L the court held that it does not have the power
to interfere with the decision of the parent not to submit the child to blood tests. In YM v LB 2010
(6) SA 338 (SCA) the Supreme Court of Appeal confirmed that the High Court as the upper
guardian of minors has the inherent power to order such tests in paternity disputes if the order is
in the child’s best interests.
(d) Muthu is the four-year-old son of Joseph and Miriam, who were never spouses or civil union
partners Last year, Miriam passed away and Joseph has been caring for his son since then
Unfortunately, Joseph lost his job four months ago and he is no longer able to support
Muthu. With reference to case law, explain who will be liable for Muthu's maintenance In
your answer, you also have to focus on the relevant constitutional Issues
(4)
In terms of common law, both parents have the duty to support their children. In terms of
maintenance act section 15 (3) the duty is apportioned between them according to their
respective means. If an unmarried parent dies, his or her estate is responsible for the child's
maintenance. If neither parent (or the parent's estate) can support the child, the duty of support
passes to the child's grandparents. In Motan v Joosub only maternal grandparents (parents of
the mother) are liable for the child's maintenance. However, in Petersen v Maintenance
Officer, the court held that both maternal and paternal grandparents will be liable to
support regardless of whether their grandchild was born of married or unmarried
parents. In Petersen v Maintenance Officer [2004] 1 All SA, declared this rule unconstitutional
on the ground that it unjustifiably violated the right of a child born of unmarried parents not to be
subject to unfair discrimination on the ground of birth and the child's right to dignity, and also
failed to afford paramountcy to the child's best interests.
(e) List two ways in which an unmarried father who does not qualify for parental responsibilities
and rights can acquire parental responsibilities and rights
(2)
In terms of section 21(1) (b), he can acquire full parental responsibilities and rights regardless of
whether he ever lived with the mother, provided that he:
1. consents or successfully applies to be identified as the child's father or pays damages in
2. contributes or has attempted in good faith to contribute to the child's upbringing for a
reasonable period
3. contributes or has attempted in good faith to contribute towards expenses relating to the

(a) Section 28(1) of the Constitution affords rights to every child List any five of these rights
(5)
1. To a name and nationality from birth

2. To family or paternal ca re, or appropriate alternative care when removed from the
family environment
3. To basic nutrition, shelter, basic health care and social services
4. To be protected from maltreatment, neglect, abuse and degradation
5. To be protected from exploitative labour practices
6. Not to be required or permitted to perform work or provide services that are
inappropriate for someone of his age, or place his well-being, education, physical or
mental health, or spiritual, moral or social development at risk.
7. Not to be detained except as a measure of last resort. If detained, the child must be kept
separate from people over the age of 18.
8. To have a legal practitioner assigned to him by the state in civil proceedings, at state
expense, if substantial injustice would otherwise result
9. Not to be used directly in armed conflict, and to be protected in times of armed conflict
(b) Distinguish between the capacity to litigate of an infans in terms of the common law and the
Children's Act 38 of 2005 Also explain whether section 14 of the Children's Act amends the
common-law position with regard to the capacity to litigate of the infans
(5)
In terms of the common law, an infans does not have locus standi in iudico and cannot be a
party to a lawsuit even if he or she is assisted by his or her guardian. he guardian must always
litigate for the infans and on the infans’ behalf. The litigation is brought or defended in the name
of the guardian in his or her capacity as guardian.
While, section 14 of the Children's Act specifically empowers every child to bring a matter
to court (constitutional right of access to court) and to be assisted in bringing a matter to court.
(c) Can a guardian ratify an antenuptial contract concluded without the necessary consent?
Discuss with reference to case law
(4)
There are some contracts the guardian cannot conclude on the minor's behalf although the
guardian may consent to the minor's entering into such contracts. Example an agreement of a
closely personal nature (such as an antenuptial contract), and a contract that will come into
operation only after the minor has attained majority. In Edelstein v Edelstein it was held that an
antenuptial contract that was concluded without the necessary consent cannot be ratified by the
minor or the minor's guardian once the marriage has taken place, because ratification would
amount to an impermissible change of the matrimonial property system
(d) Nthabiseng is 16 years old She wants to conclude a civil union with Thabiso, who is 19
years old Nthabiseng's parents have agreed to assist her to conclude the civil union Explain
whether Nthabiseng and Thabiso may conclude a valid civil union
(2)
As the Civil Union Act restricts civil unions to persons who have already reached the age of 18
years, a minor, such as Nthabiseng who is 16 years, cannot enter into a civil union even if he or
she is assisted by his or her guardian.
In terms of the Civil Union Act of 2006, only persons who have already reached the age of 18
years may enter into a civil union - minor cannot validly enter into a civil union regardless of
whose consent he or she obtains
(e) Khensani, a 16-year-old minor, concludes a contract of sale with Grace, a mayor, without the
assistance of her guardian Suppose Khensant brought Grace under the false Impression
that she was 18 years old by producing a forged identity document. On which ground would
Khensani be liable? Also explain which remedy would be available to Grace under these
circumstances
(4)
Khensani indeed made a fraudulent misrepresentation about her majority by producing a forged
identity document. Grace was clearly misled by this misrepresentation and induced to enter into
the contract, and she acted to her detriment (she suffered a loss). Since there is no indication in
the set of facts that Grace had good reason to believe that she was dealing with a minor, Grace
was entitled to accept Khensani’s statement that she was of age.
A minor who misrepresents himself or herself to be a major, to be emancipated, or to have the

necessary consent, and who thereby misleads somebody to enter into a contract with him or her,
ought to be liable
The minor can be held liable on the basis of the delict (or rather wrongful act) he or she
committed, namely, misrepresentation (i.e. the minor can be held delictually liable). Khensani
would thus be liable to Grace for delictual damages on the ground of her (Khensani’s)
misrepresentation.
(f) Use the same facts as in (e) above Suppose that Grace was not fooled by Khensan's
attempt to pass as a mayor, as it was obvious to her that Khensant was a minor Would
Khensani still be liable to Grace? Discuss
(2)
Grace was therefore not induced to enter into the contract by Khensani’s misrepresentation.
Furthermore, since Grace had good cause to believe that she was dealing with a minor, she
was not entitled merely to accept Khensani’s statement regarding his majority. Khensani would
thus not be delictually liable to Mrs Moloi on the ground of the misrepresentation.
(g) List the two requirements for the application of the restitutio in integrum remedy
(2)
The two requirements for restitutio in integrum remedy are as follows:

1. The minor was assisted by his/her guardians or his/her guardian entered into the
contract on his/her behalf.
2. The contract was to the minor’s detriment at the time of conclusion of the contract. This
remedy is also available where the minor initially contracted without the necessary
consent, but the guardian subsequently ratified the contract.
(h) What is the purpose of restitutio in integrum?

(1)
Restitutio in integrum is an extraordinary remedy and is only available if the contract was
prejudicial to the minor when it was concluded. Prejudice arising at some later stage is
irrelevant. This remedy restores the parties to a contract to their previous positions before the
agreement.

(a) The age of majority in South African law is 18 years
(1)
(b) Indicate whether the following statements are true or false by underlining the correct option
(i) A person who enters into a valid customary marriage before turning 18 becomes a
major for all purposes (TRUE /FALSE)
(1)
(ii) A void marriage terminates minority (TRUE / FALSE)

(1)
(c) In which two circumstances is a person regarded as mentally ill for purposes of private law?
Also write down the name of the case where the Appellate Division (now the Supreme Court
of Appeal) lard down this rule
(3)
According to the Supreme Court of Appeal in Lange v Lange 1945 AD 332, a person is mentally
ill for the purposes of private law if either:
 he or she cannot understand the nature and consequences of the transaction he or she
is entering into
 he or she does, in fact, understand the nature and consequences of the transaction, but
is motivated or influenced by delusions caused by a mental illness
(d) What do you understand by the concept "prodigal"?

(4)
Prodigals are persons with normal mental ability who squander their assets in an irresponsible
and reckless way due to some defect in their power of judgement. To protect such people and
their families against their prodigal tendencies, their status can be restricted by an order of the
court. Unlike mental illness, prodigality as such does not affect a person's status. It is only once
the person has been declared a prodigal and has been prohibited (interdicted) from managing
his or her affairs that his or her capacities are restricted.
4. OCT/NOV 2019
Question 1
Indicate which one of the following entities our law recognises as a juristic person
(1) Andrew Khumalo
(2) Andrew Khumalo (Pty) Ltd
(3) Andrew Khumalo and Kwena Mufamadi Trust
(4) Andrew Khumalo and Kwena Mufamadi Partnership
Question 2
From the following statements dealing with the nasciturus fiction, choose the only correct
statement. The nasciturus fiction may only be applied
(1) In the field of succession
(2) if the child dies shortly after birth
(3) if it is to the advantage of the nasciturus
(4) if the unborn child is specifically mentioned in a will
Question 3
A woman's right to make decisions about reproduction cannot be qualified in order to protect a foetus
This was held
(1) Shields v Shields
(2) Friedman v Glicksman
(3) Christian League of Southern Africa v Rail
(4) Christian Lawyers Association of South Africa v The Minister of Health
Question 4
Which one of the following factors influences a person's status in private law?
(1) religion
(2) wealth
(3) Insolvency
(4) Disability
Question 5
Although parentage is usually based on the biological fact of being genetically related to the
child, section 1) of the Children's Act 38 of 2005 expressly excludes certain categories of
persons from legally qualifying as a child's parent Indicate the only incorrect option
(1) A parent whose parental responsibilities and rights have been terminated
(2) The father of the child who had an extra-marital affair with the child's mother
(3) The biological father of a child who was conceived through the rape of the child's mother
or incest with her
(4) Any person who is biologically related to a child by reason only of being a gamete donor
for purposes of artificial fertilisation
Question 6
With regard to children born of unmarried parents and succession, choose the only correct
option
(1) Children who are born of unmarried parents can inherit intestate from their father
(2) Children who are born of unmarried parents cannot inherit intestate from their mother
(3) Children who are born of unmarried parents cannot inherit intestate from their
grandparents
(4) Children who are born of unmarred parents can inherit intestate from their godparents
Question 7
In which one of the following cases did the court, in an obiter dictum, hold that it is not always in
the individual's interests to know the truth about the identity of his or her father?
(1) S v L
(2) YM v LB
(3) Nell V Nell
(4) Ex parte Emmerson
Question 8
In which one of the following cases did the court hold that soldiers can acquire a domicile of
choice at a place where they are not stationed?
(1) Baker v Baker
(2) Neffer v Neffer
(3) Naville v Naville
(4) McMillan v McMillan
Question 9
Lindiwe is six years old Which one of the following contracts is valid?
(1) Lindiwe buys a tricycle from a dealer without her father's assistance
(2) Lindiwe buys a tricycle from a dealer with her father's assistance
(3) Lindiwe accepts a tricycle donated to her by her uncle, without any assistance
(4) Lindiwe's father buys a tricycle from a dealer on her behalf
Question 10
Indicate the correct statement
(1) Kgomotso, who is 20 years old, has limited capacity to act
(2) Sara, who is 18 years old, has limited capacity to act
(3) Mateo, who is 12 years old, has limited capacity to act
(4) Ben, who is six years old, has limited capacity to act
Question 11
Ntabiseng is 17 years old Which one of the following agreements can Ntabiseng validly
conclude with Bongani (aged 25) without her guardian's assistance?
(1) An agreement in terms of which Ntabiseng's debt to Bongani is extinguished
(2) An agreement in terms of which Bongani's debt to Ntabiseng is extinguished
(3) An agreement in terms of which Ntabiseng transfers a real night to Bongani
(4) An agreement in terms of which Ntabiseng pays her debt to Bongani
Question 12
In which one of the following cases did the court decide that an antenuptial contract concluded
by a minor without his or her guardian's assistance is void and cannot be ratified by the
guardian after the marriage has taken place?
(1) Louw v MJ & H Trust
(2) Edelsteim v Edelsteim
(3) Watson v Koen
(4) Nel v Divine Hall & Co
Question 13
(1) A 14-year-old child may make a will
(2) A minor can be a trustee in an insolvent estate
(3) A minor over the age of 10 years may independently consent to medical treatment of
himself or herself or his or her child
(4) A girl between the ages of 12 and 15 years who wishes to conclude a civil
marriage must obtain the consent of her guardian as well as that of the Minister of
Home Affairs
Question 14
Which one of the following does not terminate minority?
(1) entering into a valid customary marriage
(2) entering into a religious marriage
(3) being emancipated by a parent
(4) reaching the age of 18 years
Question 15
Choose the only correct answer When a person's estate Is sequestrated
(1) a trustee administers the insolvent's estate
(2) he or she may not enter into any contracts
(3) he or she immediately loses all capacity to act
(4) he or she cannot be held accountable for any delict
Section B
(a) In your own words, explain how a juristic person differs from a natural person You will not
receive marks for providing examples
(2)
juristic person is synonymous with an "artificial person". These associations are legal subjects
recognised by South African law where legal personality is bestowed on them. There are
recognized by the law as being entitled to rights and duties in the same way as a natural or
human person. A juristic person enjoys a legal existence independent from that of its members
or natural persons who created it. . Juristic persons are all associations incorporated in terms of
general enabling legislation or association, which comply with the common law requirements.
Common examples companies, banks, co-operatives
(b) Nana was seriously injured last month when a badly constructed wall at a shopping mall
collapsed on her She was seven months pregnant at the time As a result of the accident, her
child was subsequently born with severe brain damage She has been advised that she may
institute a claim against the Insurers of the shopping mall for the child's pre-natal inures
However, she has received conflicting advice One friend has told her that she needs to use
the nasciturus fiction, while a second friend told her that she has to base her clam on the
law of delict She is now completely confused and approaches you for advice You are
requested to assist her with the following information
(i) Should Nana base her claim on the nasciturus fiction or on the law of delict?
(1)
Nana should base her claim on the law of delict

(ii) Give authority (a case name) for your answer in () above
(1)
Road Accident Fund vs Mtati 2005 (6) SA 215 (SCA) (also reported as Road Accident Fund v
Mobo M [2005] 3 All SA 340 (SCA)).
(iii) The case referred to in (i) above changed the legal position with regard to claims for pre-
natal injuries Write a paragraph about this statement
(3)
In Road Accident Fund vs Mtati 2005 (6) SA 215 (SCA), the court held that it is unnecessary to
use the nasciturus fiction to grant a child an action in respect of prenatal injuries. It held that the
ordinary rules of the law of delict should be used to determine whether the child has a claim.
The court held that the child’s delictual right of action in respect of his or her pre-natal injuries
becomes “complete” when the child is born alive. As a result of this 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, however, still apply to other areas of the law.
(c) Lebo has recently given birth to a beautiful baby boy, John She is not married to, or the civil
union partner of, the father, Norman She is unsure about the procedure that needs to be
followed to register John's birth She approaches you for advice Please answer the following
questions
(i) In terms of legislation, the Director-General of Home Affairs has to be notified of John's
birth Advise Lebo how much time she has to do this
(1)
In terms of the Births and Deaths Registration Act 51 of 1992, the Director-General of Home
Affairs (or any person to whom the Director-General has delegated his or her powers and
duties) must be notified of the birth of every child who was born alive. As a rule, notice must be
given within 30 days of the child's birth.
Births reported after 30 days are considered as late registrations of birth and will have additional
registration requirements. Late registrations are divided into three main categories:
1. 31 days to one year
2. One year to seven years
3. Seven years and above
(ii) Lebo would Ike to register John under Norman's surname She wants to know whether
this is possible and, if so, what the procedure entails
(3)
A child born of unmarried parents is registered under surname of mother unless parents jointly
request that the father’s surname be used. The Births and Deaths Registration Act does not
make provision for the child's birth to be registered under a double-barrel surname consisting of
both parents' surnames. If A child born of unmarried parents is registered under father’s name,
the father must acknowledge paternity in presence of person to whom the notice of birth is given
and enter his particulars on the notice of birth. A father who wants to acknowledge paternity of a
child born of unmarried persons and enter his particulars on the notice of birth after the birth has
already been registered, may do so with the mother’s consent
(d) Under which circumstances may a minor be sterilised?
(1)
(e) Underline the correct options

If the High Court is approached to grant a common-law presumption of death, the applicant
must prove beyond a reasonable doubt / on a preponderance of probabilities that the
missing person is dead
(1)
After a death has officially been presumed, the person's estate may / may not be administered
and divided among his or her heirs
(1)
A common-law order presuming someone's death automatically terminates / does not

automatically terminate his or her marriage
(1)
[15]

(a) Write down the name of the capacity on the dotted line under the correct statement m
column B
(3)
Column A (capacity) Column B (statement)

Legal capacity Capacity to act The capacity to perform valid juristic acts
Capacity to act Capacity to litigate The capacity to appear as a party to a
lawsuit
Capacity to litigate Legal capacity All human beings have this capacity, even
a new born baby
(b) Consider the following scenarios regarding domicile and answer the questions on each
scenario
(i) Joyce is 25 years old Until recently she was living and working in George However, last
month she resigned She now lives with her mother in Emalahleni until she finds a new
job Where is Joyce domiciled? Provide a reason and authority for your answer
(3)
As Joyce is a major, and therefore, she has the capacity to acquire a domicile of choice (s 1(1)
case Joyce does not have the intention of settling in Emalahleni for an indefinite, and therefore
is domiciled in George. The Domicile Act (1) provides that a person does not lose their domicile
until he or she has acquired another domicile, neither does Joyce they need to be continuously
present in George in order for him to be domiciled there
(ii) Thomas Is a mentally incapacitated major He was born in Kroonstad where he lived
with his parents until they divorced last year After the divorce his mother moved to
Johannesburg while her father stayed m Kroonstad Since the divorce Thomas has been
staying with his uncle in Limpopo where he also attends school Where is Thomas
domiciled at the moment? Provide a reason for your answer
(3)
operation of the law, or the domicile of closest connection. Therefore, Thomas is domiciled in
Limpopo
(c) Mandisa divorced her husband, Alfred, on 5 April 2017, and entered into a civil union with
Jake on 14 April 2017 Musa was born on 20 November 2017
(i) What is the presumption with regard to Musa's paternity?
(1)
Musa is considered a child born of married parents Mandisa and Alfred.

(ii) In terms of our law, who is considered to be Musa's father? Explain your answer
(3)
It is presumed that the child is born of the spouses or civil union partners, is the child's father.
This presumption is expressed in the maxim pater est quem nuptiae demonstrant (that is, the
marriage indicates who the father is).
Alfred is liable for the maintenance of Musa. Our law recognises the rebuttable presumption that
a child is the child of the man to whom the mother is married (be it at the time of the child’s birth,
or at his or her conception, or at any intervening time). When a woman who is validly married
gives birth to a child, it is presumed that the woman’s husband (Alfred), and not some third party,
is the father of the child and that the child is therefore a child born of a woman who is party to a
marriage or a civil union. The maxim is pater est quem nuptiae demonstrant.
However, this presumption is rebuttable: either of the spouses, the child or any interested party
can prove that the husband is not the father of the child. This can be done by, for example,
proving that the husband is impotent or sterile. The fact that the spouses did not indulge in
sexual intercourse during the period of conception could also be sufficient proof that the
husband is not the father of the child. If Alfred succeeds in proving that he is not Musa’s father,
he will not be liable for Musa ‘s maintenance.
(d) In terms of our common law, both unmarred parents have a duty to support their child What
is the legal position if neither parent can support the child? In your answer you have to refer
to case law
(5) (5)
support regardless of whether their grandchild was born of married or unmarried parents.
(e) When considering an application in terms of section 23 of the Children's Act 38 of 2005 for
the assignment of parental responsibilities and rights, the court has to take into account
various factors List two factors which the court must take into account
(2)
The court must take the following factors into account when considering an application in terms
of section 23
(1) The best interests of the child.
(2) The relationship between the applicant and the child, and between any other
relevant person and the child.
(3) The degree of commitment the applicant has shown towards the child.
(4) The extent to which the applicant has contributed towards expenses in
connection with the child's birth and maintenance.
(5) Any other fact that should, in the opinion of the court, be taken into account.

(a) What do you understand under the following types of contracts? Give an example of each
type of contract
(i) Unilateral contract
(2)
A unilateral contract is a contract in terms of which only one of the parties undertakes to render
some performance. An example of such a contract would be a contract of donation. Only the
donor undertakes to render some performance
(ii) Multilateral contract
(2)
A multilateral contract is a contract in terms of which more than one party undertake to render a
performance. An example of such a contract would be a contract of loan. The lender undertakes
to lend the borrower a certain amount and the borrower undertakes to repay the amount.
(iii) Reciprocal contract

(2)
A reciprocal contract is a special type of multilateral contract. It is a multilateral contract in terms

of which performance is promised on the one side in exchange for performance on the other
side. An example of such a contract is a contract of sale.
(b) A minor may incur contractual liability if he or she acts with the assistance of his or her
guardian List the three forms that the guardian's assistance to the minor's contract may take
(3)
The guardian’s assistance to the minor’s contract may take the following forms:
(1) The guardian may act on behalf of the minor.
(2) The minor may personally enter into the contract with his or her guardian’s consent.
(3) The guardian may ratify the contract after it has been concluded.
(c) As a rule, the guardian does not incur personal liability in respect of the minor's contract
There are, however, a few exceptions to this rule List the circumstances when a minor's
guardian will incur personal liability for contracts concluded by the minor
(4) (4)
(d) Dwayne is 17 years old He concludes a contract with Ms Taylor to buy her second-hand
Play Station for R2500 Dwayne convinces Ms Taylor that he is 18 years old by showing her
a forged identity document Dwayne pays a deposit of R250 and Ms Taylor delivers the Play
Station Dwayne 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 Answer the following questions
(i) Can Dwayne be held delictually liable on the basis of the misrepresentation he made to
Ms Taylor? Answer yes or no, and explain your answer
(3)
Dwayne indeed made a fraudulent misrepresentation about his majority by producing a forged
identity document. Ms Taylor was clearly misled by this misrepresentation and induced to enter
into the contract, and she acted to her detriment (she suffered a loss). Since there is no
indication in the set of facts that Ms Taylor had good reason to believe that she was dealing with
a minor, Ms Taylor was entitled to accept Dwayne’s statement that he was of age.

ought to be liable. The minor can be held liable on the basis of the delict (or rather wrongful act)
he or she committed, namely, misrepresentation (i.e. the minor can be held delictually liable).
Dwayne
(ii) Suppose that in question (1) above Dwayne did not make any misrepresentation to Ms
Taylor ls there any other clam that Ms Taylor can institute against Dwayne? If so, what
would the basis of that claim be?
(2)
A general rule, a minor cannot incur contractual liability if he or she did not have his or her
guardian’s assistance in concluding the contract, However, an adult who enters into a contract
with a minor is, however, obliged to render performance. An adult who has entered into a
contract with an unassisted minor can rely on certain remedies, namely, delict or unjustified
enrichment.
Ms Taylor was not induced to enter into the contract by Dwayne’s misrepresentation. Dwayne
would thus not be delictually liable to Ms Taylor on the ground of the misrepresentation.
(e) Fill in the missing words

A minor below the age of 10 years cannot be held accountable at all for a crime he or she
commits, while a child between the ages of 10 and 14 years is presumed to be criminally
unaccountable
(3)
(f) Lara is a 13-year-old girl Without her parents' consent she recently visited a doctor for a
routine check-up During the medical examination it was discovered that she suffers from a
congenital heart defect and that she urgently needs surgery Write a paragraph in which you
explain who may consent to the surgery in this case. Remember to refer to authority for your
answer
(4)

(a) The Supreme Court of Appeal set out the requirements of mental illness for purposes of
private law Indicate what these requirements are, and provide the name of the case in which
this was decided
(3)
According to the Supreme Court of Appeal in Lange v Lange 1945 AD 332, a person is mentally
is entering into
(b) If an insolvent enters into a contract in breach of the limitations imposed by the Insolvency
Act 24 of 1936, the contract is nevertheless valid if certain requirements have been met
Name the three requirements
(3)
If the insolvent enters into a contract in breach of these provisions, the contract is nevertheless
valid if the following requirements are met:
(1) The property the insolvent disposed of was acquired after sequestration.
(2) The disposition was for valuable consideration.
(3) The person with whom the insolvent transacted was unaware and had no reason to
suspect that the estate was under sequestration.
(i) A prodigal is someone who has been declared mentally ill This statement is FALSE
(1)
(ii) A prodigal can be held accountable for a delict committed by him or her This statement
Is TRUE
(1)
(iii) A prodigal needs the assistance of his or her curator to make a will This statement Is
FALSE
(1)
(iv) A prodigal loses parental responsibilities and rights in respect of his or her child This
statement is FALSE
(1)
5. MAY/JUNE 2019
Question 1
Indicate which one of the following is not recognised as a legal subject in our law?
(1) a child suffering from Down's Syndrome
(2) a person who is eighty years old
(3) a child who is attending primary school
(4) a conceived, but unborn child
Question 2
A nasciturus can be defined as.
(1) a fiction that benefits third persons
(2) a child's clam for pre-natal injures
(3) a conceived but unborn child or foetus
(4) a fiction that creates legal subjectivity
Question 3
Indicate which one of the following statements regarding presumption of death is correct:
(1) The court may appoint a curator bonus to administer a missing person's affairs
without pronouncing a presumption of death.
(2) Once the court has pronounced a presumption of death it means that there is an
irrebuttable presumption that the person is dead
(3) If a common-law presumption of death is expressed, the result is that it automatically
dissolves the marriage of the surviving spouse.
(4) A statutory presumption of death can only be recorded if the judicial officer is certain on
a preponderance of probabilities that the person is dead.
Question 4
The following statements deal with the reporting of death Indicate which one of the following
statements is incorrect:
(1) It’s not necessary to give notice of a stillbirth.
(2) A death due to natural causes must be reported by a medical practitioner
(3) Only deaths due to natural causes have to be reported
(4) Every death must be reported to the Director-General of Home Affairs or the Director-
General's duly appointed representative.
Question 5
Legal capacity refers to ...
(1) the capacity to be held accountable for crimes and delicts
(2) the capacity to perform valid Juristic acts
(3) the capacity to appear in court as a party to a lawsuit
(4) the capacity to have rights and duties
Question 6
All the statements below deal with domicile Indicate which one of the following statements
regarding domicile is incorrect?
(1) A person can relinquish his or her previous domicile before acquiring a new
domicile
(2) No one can have a domicile in more than one place at the same time
(3) Everyone must have a domicile at all times
(4) The changing of a person's domicile is never accepted without proof
Question 7
In which one of the following cases did the court find that a prisoner who had been imprisoned
for life automatically acquired a domicile of choice in prison?
(2) Nefler v Netler
(3) Baker v Baker
Question 8
The following statements all relate to the status of children born as a result of artificial
fertilisation Which one of the statements is incorrect?
(1) A child born as a result of the artificial fertilisation of a single woman (e a woman who is
not a party to a civil marriage or civil union) is regarded as a child born of unmarred
parents
(2) A child born as a result of the artificial fertilisation of a woman with the semen of
her husband is only regarded as a child born of marred parents if the woman's
husband consented to the artificial fertilisation
(3) A child born to same-sex life partners who fall outside the ambit of the Civil Union Act as
a result of the artificial fertilisation of one of them is regarded as a child born of
unmarried parents.
(4) A child born as a result of the artificial fertilisation of a spouse with sperm that was
donated by a third party is regarded as a child born of marred parents if both spouses
consented to the artificial fertilisation
Question 9
Which one of the following factors cannot be taken into account when proof is sought that a
particular man is not the father of a particular child?
(1) absence of sexual intercourse
(2) sterility
(3) DNA tests
(4) the fact that contraceptives were used
Question 10
Choose the only correct option to complete the following sentence: Section 28(2) of the
Constitution provides that
(1) a child must be given the opportunity to express his or her views freely in all matters that
affect them.
(2) a child has the right to be protected from maltreatment, neglect, abuse and degradation
(3) a child's best interests are of paramount importance in every matter concerning
the child.
(4) a child's legal practitioner may assist him or her in civil proceedings at state expense
Question 11
Indicate which one of the following contracts concluded by four-year-old Nomsa Is valid
(1) Without her guardian's assistance Nomsa accepts a donation of R100 from her aunt
(2) Nomsa buys chocolates at the supermarket without the assistance of her father or
mother
(3) With her father's assistance Nomsa buys a bicycle from her brother's friend, Ntokozo
(4) On her behalf Nomsa's father buys her a new doll as well as clothes for the doll at
the toy shop
Question 12
Jim, a 12-year-old boy, concluded a contract with Thandi, a major, without the assistance of his
guardian in terms of the contract, Jim sold his bicycle to Thandi Jim now wants Thandi to return
his bicycle to him Which remedy is available to Jim to claim the bicycle back from Thandi?
(1) condictio
(2) rei vindicatio
(3) negotiorum gestio
(4) exceptio non adimpleti contractus
Question 13
Section 43 of the Basic Conditions of Employment Act 75 of 1997 prohibits employment of a
minor under the age of
(1) 12 years
(2) 14 years
(3) 15 years
(4) 18 years
Question 14
Tim is 16 years old He wants to get married to Rosie Indicate whose consent Tim needs in order
to conclude a valid civil marriage with Rosie Choose the only correct option.
(1) the presiding officer of the Children's Court
(2) the Minister of Home Affairs as well as Tim's guardian
(3) the Minister of Home Affairs only
(4) only Tim's parents or guardian
Question 15
Indicate which one of the following statements regarding emancipation is incorrect.
(1) Only the High Court within whose area of jurisdiction a minor resides may
(2) If a minor has no parents, the minor's legal guardian may emancipate the minor
(3) The onus of proving emancipation rests upon the person who alleges that it has taken
place
(4) Ether parent may emancipate a child, provided that the parent has guardianship of the
child.
Section B
(a) Khulubuse and Kenny recently entered into a partnership agreement, operating under the
name 'Khulubuse and partners' Advise both partners whether 'Khulubuse and partners' is a
juristic person or not and who will be liable for the debts of 'Khulubuse and partners.
(2)
A partnership is not a juristic person. The individual partners are responsible for partnership
debts out of their private funds / Both Khulubuse and Kenny will be responsible for the
partnership debts out of their private funds.
(b) Name the three common-law requirements with which an association must comply in order
to be recognised as a juristic person
(3)
members may vary.
in its own right.
(c) Briefly indicate when a natural person's legal personality begins, and what the requirements
are for the beginning of legal personality.
(3)
Legal personality begins at birth. For a child to be recognised as a legal person, the birth must
be fully completed, that is, the body of the mother and the body of the child must be completely
separated. For birth to be completed it is not required that the umbilical cord be severed. The
child must live after the separation even if only for a short period. Legal personality is not
conferred on a stillborn foetus or a foetus which dies during birth.
(d) Who has to give notice of the birth of a child in terms of the Births and Deaths Registration
Act 51 0f 1992?
(2)
Affairs (or any person to whom the Director-General has delegated his or her powers and duties)
must be notified of the birth of every child who was born alive. As a rule, notice must be given
within 30 days of the child's birth. Where possible, both parents must give notice. If
parents are deceased, notice must be given by the child's next-of-kin or legal guardian. If the
child has already reached the age of 18 years, they may person ally give notice.
Births reported after 30 days are considered as late registrations of birth and will have additional
registration requirements. Late registrations are divided into three main categories:
1. 31 days to one year
2. One year to seven years
3. Seven years and above
(e) Pearl, who is 6 weeks pregnant, wants to terminate her pregnancy. She is concerned that
the termination of the pregnancy might contravene section 11 of the Constitution, which
protects the night to life Explain to her what right this section protects, and whether the
termination of her pregnancy contravenes this section. Give authority for your answer.
(5) (5)
Christian Lawyers Association of South Africa vs The Minister of Health 1998 (11) BCLR 1434
(T), 1998 (4) SA 1113 (T) an application for the appointment of a curator ad litem to represent
the interests of a foetus in all matters concerning a termination of pregnancy was dismissed.
The court held that a child cannot have rights that can be enforced on his or her behalf before
he or she is born alive, because it is only upon birth that the child becomes a legal subject.
Furthermore, the authors explain why any constitutional challenge by the father to prevent a
proposed termination of pregnancy will fail. This is because section 12(2)(b) guarantees to
every person the right to SECURITY IN AND CONTROL OVER HIS/HER BODY. This would
clearly include a person’s reproductive powers. Therefore, woman has final say re abortion.
From point of view of dignity, privacy & gender equality – woman has final say re reproduction.
The Choice on Termination of Pregnancy Act 92 of 1996 permits termination of pregnancy on
demand during the first 12 weeks of the gestation period and on several grounds (including
socio-economic considerations) after that. A termination of pregnancy may only take place with
the informed consent of the pregnant woman, unless she is incapable of giving consent, no
consent other than that of the pregnant woman is required
(f) Simon disappeared nine years ago. His wife, Sonja, wants to approach the High Court for a
presumption of death
(i) In terms of which procedure will Sonya apply for a presumption of death?
(1)
Common law procedure

(ii) Suppose that the presumption of death is granted Sonya now wants to marry her
boyfriend, Nick She wants to know what she needs to do to have her marriage to
Simon dissolved Explain the legal position to her with reference to authority
(4)
Section 1 of the Dissolution of Marriages on Presumption of Death Act 23 of 1979 stipulates that
the court which expresses a presumption of death may, at the request of the remaining spouse,
make an order dissolving the marriage (or civil union) as from a date determined by the court.
So, Sonya can make a separate application to the court for an order to have marriage dissolved.
If 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.
Thereafter she can marry Nick.

(b) List the two requirements that have to be met in order to acquire a domicile of choice,
and explain briefly what each of the requirements entails
(4)
The two requirements that have to be met in order to acquire a domicile of choice, are the
factum and animus requirements.
1. The factum requirement entails that person must be lawfully present at a particular
place.
2. The animus requirement relates to a person’s intention about the duration of settling at a
particular place.
(c) Where is a mentally incapacitated person domiciled? Provide authority for your answer
(2)
operation of the law, or the domicile of closest connection.
(d) What do you understand by the concept "child born of married parents"?
(3)
(e) Fill in the relevant names of the two court cases that dealt with blood tests to determine
paternity:
(i) In (SvL) the court held that it does not have the power to interfere with the
decision of the parent not to submit the child to blood tests
(2)
(ii) In (YM v LB) the Supreme Court of Appeal held that the High Court as upper
guardian of minors has the inherent power to order blood tests if the order is in
the best interests of the child
(2)
(f) List the four components of parental responsibilities and rights in terms of section 18(2)
of the Children's Act 38 of 2005
(4)
(1) Care
(2) Contact
(3) Guardianship
(4) Maintenance
(g) Kgomotso and Rose, who are both unmarried, are involved in a relationship as a result
of which a little boy, Kabelo, is born. When Kabelo was born, they had been living
together for four years After Kabelo's birth, the couple started having some problems in
their relationship. They tried to make it work for two years after Kabelo's birth, but they
finally separated when the little boy turned two Kgomotso wants to know from you
whether he has full parental responsibilities and rights in respect of Kabelo Advise him
with reference to authority
(3)
The Children's Act which replaced the common-law that denied unmarried fathers’ inherent
In terms of section 21(1)(a) of the Children's Act Kgomotso indeed has full parental
responsibilities and rights in respect of Kabelo because he lived with Rose, Kabelo’s mother in a
permanent life partnership when Kabelo was born. In terms of section 21(1) (b), he can acquire
provided that he:
i. consents or successfully applies to be identified as the child's father or pays damages in
ii. contributes or has attempted in good faith to contribute to the child's upbringing for a
reasonable period
iii. contributes or has attempted in good faith to contribute towards expenses relating to the

(a) In terms of section 15 of the Children's Act 38 of 2005 certain persons may approach the
court to enforce the rights that are conferred by the Bill of Rights and the Children's Act
Name any two persons who are listed in this section
(2)
Section 15 lists the persons who may approach the court to enforce the rights that are conferred
by the Bill of Rights and the Children's Act.
(1) A child who is affected by or involved in the matter to be adjudicated.

(2) Anyone acting in the child's interest or on behalf of another person who cannot act in
his or her own name.
(3) Anyone acting as a member of, or in the interest of a group or class of persons.
(4) Anyone acting in the public interest.
(b) A minor may incur contractual liability if he or she acts with the assistance of his or her
guardian List the various forms that the guardian's assistance to the minor's contract
may take
(3)
(c) As a rule, the guardian does not incur personal liability in respect of the minor's contract.
There are, however, a few exceptions to this rule. List the circumstances when a minor's
guardian will incur personal liability for contracts concluded by the minor
(4) (4)
(d) The names of four court cases dealing with minority are given below Write the name of
the court case that offers authority for the statement in the first column on the dotted line
in the second column
(8)
Edelstein v Edelstein
Louw v MJ & H Trust
Nel v Drane, Hall & Co
Landers v Estate Landers
Statement Case
In this case restitutio n integrum was granted to a minor who
had lost his inheritance through his guardian's
negligence to protect his interests.
Thus, case adopted the benefit theory into our law when the
court held that if a contract, taken as a whole, was to the
minor's benefit the minor was bound by t

It was held that an antenuptial contract that was concluded
without the necessary consent is void and cannot be ratified
by the minor or the minor's guardian once the marriage has
taken place, because ratification would amount to an
impermissible change of the matrimonial property system.
The court held that because the minor had misrepresented
himself as emancipated when he bought a motor cycle from a
major without the necessary assistance, he could not recover
the part of the purchase price he had already paid.
(e) On 9 October Ntokozo, a 16-year-old minor, concluded a contract of sale with Mr Smith,
a major, without the assistance of his legal guardian. In terms of the contract, Ntokozo
bought a scooter from Mr Smith for RR15 000. On 9 November, a month after delivery of
the scooter, Ntokozo sold the scooter for R10 000. He spent the R10 000 as follows:
RR1 000 on liquor and other refreshments for a party, 5 000 on a holiday in Durban, 2
000 for food and 2000 on accommodation
(i) On which ground would Ntokozo be able to sue Mr Smith?
(1)
(ii) Which amount would Smith be able to recover if he instituted an action on 12

November? Give a reason for your answer
(3)
(f) Louisa is a 13-year-old girl Without her parents' consent she recently visited a doctor for
a routine check-up During the medical examination it was discovered that she suffers
from a congenital heart defect and that she urgently needs surgery Write a paragraph in
which you explain who may consent to the surgery in this case Remember to refer to
authority in your answer.
(4)

(a) List three ways in which minority may be terminated.
(3)
Minority may be terminated in the following ways:
(i) Attainment of the prescribed age

(ii) Marriage or civil union
(iii) Venia aetatis and release from tutelage
(iv) Emancipation
(b) Indicate whether the following statements are true or false You do not have to explain
your answers
(i) A minor may conclude a valid civil union, if he or she is assisted by his or her
guardian
(1)
FALSE
(ii) A mentally ill person can be held liable on the basis of negotiorum gestio
(1).
TRUE
(iii) A prodigal may marry without the consent of his or her curator
(1)
TRUE
(c) Compare the legal capacity of a prodigal with the legal capacity of an insolvent.
(4)
6. OCT/NOV 2018
Question 1
Indicate which one of the following entities is not a juristic person
(1) Standard Bank
(2) Nkosi and Sons Partnership
(3) The University of South Africa
(4) The African National Congress
Question 2
(1) A natural person's legal personality begins at birth
(2) For birth to be completed it is required that there must be a complete separation
between the foetus and the body of the mother
(3) For birth to be completed it is required that the umbilical cord be severed
(4) Legal personality is not obtained by a stillborn foetus
Question 3
In terms of the Births and Deaths Registration Act 51 of 1992 the Director-General of Home
Affairs must be notified of the birth of every child who was born alive This notice must be given
within
(1) 15 days of the child's birth
Question 4
In which one of the following cases did the court find that an agreement that a child's father
would not be responsible for the child's maintenance after birth was contrary to good morals?
(1) Shields v Shields
(2) Road Accident Fund v Mtati
(3) Pinchin v Sanlam Insurance Co Ltd
(4) Chisholm v East Rand Proprietary Mines Ltd
Question 5
In which one of the following scenarios can Mana have her pregnancy terminated?
(1) Mana is 21 weeks pregnant. The pregnancy resulted from incest
(2) Maria is 24 weeks pregnant. The continued pregnancy will significantly affect her
economic circumstances
(3) Mana Is 23 weeks pregnant. The pregnancy resulted from rape
(4) Mana is 22 weeks pregnant. The continued pregnancy will endanger her life
Question 6
In which one of the following cases did the court decide that no provision of the Constitution of
the Republic of South Africa, 1996 affords protection to the foetus?
(1) Christian League of Southern Africa v Rall
(2) Van Heerden v Joubert
(3) Christian Lawyers Association of South Africa v The Minister of Health
(4) Friedman v Glicksman
Question 7
(1) Before a judicial officer may record a finding in terms of the Inquests Act 58 of 1959 that
a person s presumably dead, it must be proven on a balance of probabilities that the
person is dead
(2) If a common-law presumption of death is expressed, the court which granted such an
order may, at its own initiative, make an order for the dissolution of the missing person's
marriage
(3) Once someone has been presumed dead by the High Court, even if it later transpires
that he or she is still alive, the court order is final and can never be set aside
(4) If there is no evidence to the contrary, our courts will find that commorientes died
simultaneously
Question 8
This question deals with the duty to bury the deceased Ntando passed away at the age of 65,
leaving behind three hers his sons Madoda and Sandile, and his wife Tebogo Ntando left clear
instructions in his will that, in the event of his death, he should be buried next to his late mother
and father in Bisho in the Eastern Cape Following his death, his heirs cannot agree on the burial
arrangements Madoda wants to have his father buried in Cape Town, while Sandile wants his
father bunted in Pretoria Tebogo wants to return to her birth town of Mokopong, and wants to
bury her late husband there As their legal advisor, you should advise the family that Ntando
should be buried in
(1) Cape Town
(2) Bisho
(3) Pretoria
(4) Mokopong
Question 9
Which one of the following attributes or factors influences a person's status in private law?
(1) religion
(2) profession
(3) Insolvency
(4) Disability
Question 10
In Naville v Naville the court held that
(1) a prisoner who had been imprisoned for Ife automatically acquired a domicile of choice
in prison
(2) a foreign diplomat could acquire a domicile of choice in South Africa while still in the
service of a foreign country
(3) foreign military staff could not acquire a domicile of choice in South Africa,
however much they wished to settle here permanently
(4) soldiers can acquire a domicile of choice at a place where they are not stationed
Question 11
All the statements below deal with domicile. Indicate which one of the following statements
regarding domicile is incorrect?
(1) A person can relinquish his or her previous domicile before acquiring a new
domicile
(2) No one can have a domicile in more than one place at the same time
(3) Everyone must have domicile at all times
(4) The changing of a person's domicile is never accepted without proof
Question 12
In which case did the court hold that soldiers can acquire a domicile of choice at a place where
they are not stationed?
(3) Baker v Baker
(4) Nefler v Nefler
Question 13
Anne and Jason have been marred for four years Their marriage ended in divorce in December
2015 In October 2015 Anne gave birth to a baby boy, Tom Jason does not believe that he is
Tom's father Indicate which one of the following cannot be used by Jason to rebut the
presumption of paternity
(1) sterility
(2) absence of sex
(3) DNA tests
(4) contraceptives
Question 14
Choose the only incorrect option in terms of the Children's Act 38 of 2005 "care" refers to
(1) protecting the child from maltreatment, abuse, neglect, degradation, discrimination,
exploitation and any other physical and moral harm or hazards
(2) generally ensuring that the child's best interest is the paramount concern in all matters
affecting the child
(3) maintaining a personal relationship with the child and communicating with him or
her on a regular basis if he or she lives with someone else
(4) guarding and directing the child's education and upbringing in a manner which Is
appropriate to the child's age, maturity and stage of upbringing
Question 15
Paul and Mandy have been marred for eight years and have two minor children Mandy goes to
Canada to visit her brother While is Canada Mandy meets Ben and they have an adulterous
relationship Upon her return to South Africa, Mandy discovers that she is three months pregnant
A child, John, is subsequently born In terms of our law, who would be presumed to be John's
father?
(1) Both Ben and Paul are presumed to be the father
(2) Ben is presumed to be the father
(3) Paul is presumed to be the father
(4) Neither Ben nor Paul is presumed to be the father
Question 16
Consider the following scenarios in which case is the child considered to be a child born of
unmarred parents?
(1) After they had been living together for 5 years, Thandi and Jason entered into a
customary marriage in 2011 Thandi gave birth to a baby girl, Thabiso, on 6 April 2012
(2) Anne was artificially inseminated with the semen of her civil union partner, Simon as a
result of the artificial insemination Anne gave birth to a baby girl, Nelly Simon did not
consent to his semen being used for the artificial Insemination
(3) Gloria and Anna entered into a valid civil union Gloria was artificially Inseminated
with donor sperm and as a result of the artificial insemination gave birth to a baby
boy, Thomas Anna did not consent to the artificial Insemination of Gloria
(4) While married to Sam, Emily was [involved in a relationship with Frans, as a result of
which a baby boy, David, was born Five years later, after divorcing Sam, Emily and
Frans got married
Question 17
infans an can be defined as
(1) a child younger than one year
(2) a child younger than seven years
(3) a child younger than 14 years
Question 18
Peter is five years old Indicate which one of the following capacities he has
(1) the capacity to perform juristic acts
(2) the capacity to enforce rights and duties in a lawsuit
(4) the capacity to be held accountable for crimes
Question 19
A minor of 14 years can, without parental assistance or consent,
(1) act as witness to a will
(2) make his or her own will
(3) be a depositor at a mutual bank
(4) enter into a life Insurance policy
Question 20
A minor's guardian will not incur personal lability towards the party with whom the minor has
contracted.
(1) if the minor's guardian bound himself or herself as surety for the minor
(2) if the minor concluded the contract with the consent of his or her guardian
(3) if the minor concluded the contract as his or her guardian's agent
(4) if the minor's guardian guaranteed performance by the minor
Section B
(a) In which circumstances may the birth of a child born of unmarred parents be registered
under the father's surname? Give authority for your answer
(4)
(b) List the two requirements for the operation of the nasciturus fiction
(2)
(c) Sarah, a pregnant woman, was seriously injured in a motor vehicle accident caused by the
negligent driving of Steve Her baby, Chloe, was later born with cerebral palsy which was
caused by the inures Sarah sustained during the accident Chloe's father wants to calm
damages from the surer of Steve's vehicle for his medical expenses for Chloe, as well as
satisfaction for the infringement of Chloe's personality rights
Chloe's father should base his claim on the nasciturus fiction / the ordinary principles
of the law of delict (underline the correct answer)
(1)
(d) The authority for the answer in (b) is Road Accident Fund vs Mtati 2005 (6) SA 215 (SCA)
(case name)
(1)
(e) What is the effect of a presumption of death pronounced in terms of the Inquests Act 58 of
1959 on the marriage of the missing person? Give authority for your answer
(2)

(a) The four capacities that are traditionally distinguished in South African law are given in
column A below Write the name of the capacity on the dotted line under the correct
statement in column B
(4)
Column A (capacity) Column B (statement)

Legal capacity Capacity to act The capacity to perform valid juristic acts
Capacity to act Capacity to be held This capacity is to a large extent
accountable for crimes and delicts influenced
by a person's age and mental condition
as
fault Is a requirement to be held liable in

terms of this capacity
Capacity to litigate Legal capacity All human beings have thus capacity,
even a new born baby
Capacity to be held accountable for crimes The capacity to appear as a party to a
and delicts Capacity to litigate lawsuit
(b) Write down the definition of "domicile"
(3)
In law, domicile is the place where a person is legally deemed to be constantly present
 for the purpose of exercising his or her rights
 fulfilling his or her obligations
 even in the event of his or her factual absence.
(c) Consider the following scenarios regarding domicile and answer the questions on each
scenario.
(i) Bianca is 25 years old Until recently she was living and working in Johannesburg
However, last month she resigned She now lives with her mother in Polokwane until
she finds a new job Where is Bianca domiciled? Provide a reason and authority for
your answer
(3)
The Domicile Act provides that a person does not lose her domicile until he or she has acquired
another domicile. Bianca is therefore still domiciled in Johannesburg.
(ii) Thandi is a 7-year-old girl She was born in Cape Town where she lived with her
parents until they divorced last year After the divorce her mother moved to
Johannesburg while her father stayed in Cape Town Since the divorce Thandi has
been staying with her grandmother in Durban where she also attends school Where is
Thandi domiciled at the moment? Provide a reason for your answer.
(3)
most closely connected. Therefore, Thandi is domiciled in Durban.
(d) Bill and Cathy are both unmarried, but they have been living together since January 2012 A
boy, Dumiso, was born on 9 May 2013 Last month Bill ended their relationship and now he
refuses to pay maintenance for Dumiso. Cathy approaches you for advice
(i) Explain the common law position regarding the maintenance of a child born of
unmarred parents
(2)
passes to the child's grandparents. In terms of common law, both parents have the duty to
support their children. In terms of maintenance act section 15 (3) the duty is apportioned
between them according to their respective means.
(ii) Who will be responsible for Dumiso's maintenance if nether Bill nor Cathy can support
him? Refer to authority in your answer
(5) (5)
If neither parent (or the parent's estate) can support the child, the duty of support passes to the
child's grandparents. In Motan v Joosub only maternal grandparents (parents of the mother)
are liable for the child's maintenance. However, in Petersen v Maintenance Officer, the
court held that both maternal and paternal grandparents will be liable to support
regardless of whether their grandchild was born of married or unmarried parents.

Briefly explain why youth affects a person's capacity to participate in legal interactions
(2)
A person’s status (legal capacity, capacity to act, capacity to litigate, and capacity to be held
accountable for delicts and crimes) is affected by age. Minority is one of the most important
factors influencing a person's status. Because people's juristic acts are dependent on their
expression of will (the ability to understand the nature, purport and consequences of one’s acts),
only persons who have a reasonable understanding and judgement should have capacity to act
Youth has a major influence on a person's powers of judgement. For this reason, the law
protects young people by limiting their capacity to participate in legal interaction. From a legal
point of view, Person has neither the intellectual ability nor the experience to participate
independently in legal and commercial dealings before reaching the age of 18 years. This
restrictions on a minor’s capacity do not violate the constitutional right to equality, because their
objective is the minor’s protection.
What do you understand by the following concepts?

(i) Contractual liability
(2)
Contractual liability means that the party or parties to the contract can be held legally liable for
the fulfilment of the provisions of the contract.
(ii) Restitutio in integrum

(2)
(b) Provide an example of how a guardian may incur liability on the basis of negotiorum gestio if
he or she is the child's parent
(1)
A guardian may also incur liability on the basis of negotiorum gestio if he or she is the child's
parent. A third party fulfils the duty of support on behalf of a parent by supplying his or her child
with necessaries like food and clothing, the parent may be liable on the basis of negotiorum
gestio. In this case the guardian's liability does not arise contractually but quasi-contractually.
(c) Joyce is 16 years old She wants to conclude a civil union with Daniel, who is 19 years old
Joyce's parents have agreed to assist her to conclude the civil union Explain whether Joyce
and Daniel may conclude a valid civil union
(2)
years, a minor cannot enter into a civil union even if he or she is assisted by his or her guardian.
In terms of the Civil Union Act of 2006, only persons who have already reached the age of 18
years may enter into a civil union - minor cannot validly enter into a civil union regardless of
whose consent he or she obtains
(d) On 16 August 2016 Naughty, a 16-year-old minor, concluded a contract of sale with Mr
Shark, an adult, without the assistance of his legal guardian, in terms of which Mr Shark sold
his laptop to Naughty for 5 000 The actual value of the laptop at the time of conclusion of the
contract was R17 000 On 16 September 2016, a month after the delivery of the laptop to
Naughty, Naughty sold the laptop for R 10 000 He spent the 10 000 as follows R6 500 for
his rent and the remaining R3 500 on liquor and refreshments (already consumed) On 20
September 2016 Mr Shark instituted an action against Naughty
(i) Indicate whether the contract between Naughty and Mr Shark is valid Provide a reason for
your answer
(2)
guardian’s assistance in concluding the contract. So, this contract is invalid.
(ii) On which ground is Naughty liable to Mr Shark? Explain briefly

(2)
Naughty may be held liable ex lege (by force of law) on the ground of unjustified enrichment.
Liability on the ground of unjustified enrichment arises if one person obtains a patrimonial
advantage (that is, is enriched - increases the value of his or her estate) at the expense of
another in the absence of a legal ground justifying the enrichment.
(iii) Assume that Mr Shark's claim against Naughty is successful Explain, in detail, which
amount(s) Naughty will be liable for, and why
(4)
The enrichment claim is limited to the lesser of either the amount by which the enriched
person's estate remains enriched at the date of institution of the action or the amount by which
the other person's estate remains impoverished (made poor) at that date.
If the asset was alienated, the impoverished party can claim only what is left of the proceeds,
unless the enriched party used the proceeds to obtain necessaries, such as food, clothing,
accommodation and medical treatment.
So, Unjustified enrichment as of 20th September =
R10 000 - R3 500 = R6 500
(e) Name three circumstances which a court can take into consideration when deciding
whether a minor is emancipated in a particular instance
(3)
Whether or not a minor has been emancipated is a question of fact, which the court must decide
upon after considering all the circumstances of the case. That the minor lives on his or her own
and manages his or her own business are mere factual details which, together with others such
as the minor's age, the relationship between the minor and the guardian, the nature of the
minor's occupation and the length of time for which the occupation has been carried on, help to
establish whether emancipation has in fact taken place
7. MAY/JUNE 2018
Question 1
Indicate which one of the following is not recognised as a legal subject in our law
(1) a severely deformed baby
(2) a person who is eighty years old
(3) a child who is attending primary school
(4) a conceived, but unborn child
Question 2
Nomsa Khumalo, a single woman, recently gave birth to a baby girl, Thabiso Her daughter was
born as a result of artificial fertilisation making use of a sperm donor, namely Peter Sibanyone
Under which one of the following names will Nomsa be able to register her baby daughter in
terms of the Births and Deaths Registration Act 51 of 1992?
(1) Thabiso Sibanyone
(2) Thabiso Khumalo- Sibanyone
(3) Thabiso Khumalo
(4) Thabiso S Khumalo
Question 3
Penny is 16 years old, unmarred and pregnant She would Ike to have her pregnancy terminated
Whose permission is needed to have her pregnancy terminated?
(1) Penny's informed consent
(2) Penny's parents' consent
(3) Penny's guardian's consent
(4) Penny's boyfriend's consent
Question 4
Choose the only incorrect answer Mark has been missing for seven years since he went surfing
and disappeared without a trace off the Namibian Coast Who may approach the High Court for
an order presuming hrs death?
(1) who His wife wishes to remarry
(2) The magistrate of the town where he was domiciled
(3) A bank official of the bank where the bond over his house is registered
(4) His parents, who are also his heirs
Question 5
Indicate the only correct option All human beings have
(1) capacity to litigate
(2) capacity to act
(3) legal capacity
(4) accountability for crimes
Question 6
Indicate which one of the following statements is correct:
(1) Domicile of origin is the domicile the law confers on a person after conception
(2) Domicile of origin is the domicile the law confers on a person at the time of birth
(3) Domicile of origin is the domicile the law confers on a person upon reaching majority
(4) Domicile of origin is the domicile the law confers on a person at the time of marriage
Question 7
Alfred Is a thirty-year-old mentally incapacitated man He was born in Durban and moved to
Cape Town with his parents when he was seven years old, He currently lives with his girlfriend
in Johannesburg Because of his mental incapacity he has a curator who lives in Pretoria Alfred
is domiciled in
(1) Durban
(2) Cape Town
(3) Johannesburg
(4) Pretoria
Question 8
Although parentage is usually based on the biological fact of being genetically related to the
child, section 1(1) of the Children's Act 38 of 2005 expressly excludes certain categories of
persons from legally qualifying as a child's parent. Indicate the only incorrect option
(1) A parent whose parental responsibilities and rights have been terminated
(2) The biological father of a child who was conceived through the rape of the child's mother
or incest with her
(3) The father of the child who had an extra-marital affair with the child's mother
(4) Any person who is biologically related to a child by reason only of being a gamete donor
for purposes of artificial fertilisation
Question 9
In terms of section 21(1) of the Children's Act 38 of 2005
(1) an unmarried father who does not qualify for automatic parental responsibilities and
rights in respect of his child can acquire parental responsibilities and rights by
concluding a parental responsibilities and rights agreement
rights in respect of his child can acquire these by approaching the high court for an order
granting parental responsibilities and rights
(3) an unmarried biological father acquires full parental responsibilities and rights in
respect of his child if he meets certain requirements
(4) an unmarried biological father only acquires full parental responsibilities and rights in
respect of his chid if he marries the child's mother
Question 10
With regard to the maintenance of a child born of unmarried parents, which one of the following
examples is incorrect?
(1) Both parents must support their child
(2) The duty of support is apportioned between the parents according to their respective
means
(3) If neither parent can support their child, this duty passes to the state
(4) if the father dies, his estate is responsible for the maintenance
Question 11
With regard to children born of unmarred parents and succession, choose the only correct
option
(1) Children who are born of unmarried parents can inherit intestate from their father
(2) Children who are born of unmarred parents cannot inherit intestate form their mother
(3) Children who are born of unmarred parents cannot inherit intestate from their
grandparents
(4) Children who are born of unmarred parents can inherit intestate from their godparents.
Question 12
Choose the only correct answer in terms of section 19 of the Children's Act 38 of 2005, the
biological mother of a child acquires full parental responsibilities and rights of her child as soon
as she gives birth to the child, unless
(1) she is unmarred
(2) she is married
(3) she is the child's surrogate mother
(4) she cannot afford to support the child
Question 13
Choose the only correct option A natural obligation means that
(1) the contract is void
(2) the contract s voidable
(3) the contract is legally enforceable
(4) the contract is legally unenforceable
Question 14
Choose the only correct option an infans may be
(1) contractually liable
(2) criminally liable
(3) delictually liable where liability is not based on fault
(4) a party to a lawsuit
Question 15
The following statements deal with medical treatment and operations of minors Indicate the only
incorrect statement
(1) A minor below the age of 12 years may not have an operation without the consent of his
or her guardian
(2) A minor below the age of 12 years may have medical treatment without the
consent of his or her guardian, provided that he or she is duly assisted by his or
her guardian
(3) A minor who has turned 12 may independently consent to medical treatment being
performed on him or her, provided he or she is sufficiently mature and has the mental
capacity to understand the benefits, risks, social and other implications of the treatment
performed on his or her child, provided he or she is sufficiently mature and has the
mental capacity to understand the benefits, risks, social and other implications of the
treatment
Question 16
In which case did the court hold that a minor, who bought a motorcycle form an adult without the
assistance of his guardian (the minor had misrepresented himself as emancipated when he
concluded the contract), could not reclaim the part of the purchase price he had already paid?
(1) Edelstein v Edelstein stem 1952 (3) SA 1(A)
(2) Nel v Divine Hall & Co (1890) 8 SC 16
(3) Nell v Nell 1990 (3) SA 889 (T)
(4) Louw v MJ & H Trust (Pty) Ltd 1975 (4) SA 268 (T)
Question 17
Indicate which one of the following agreements is enforceable:
(1) Anna, a 13-year-old girl, concludes an agreement with Ms Dlamini, a major, in terms of
which Anna transfers a right to Ms Dlamini without her guardian's assistance
(2) Musa, a 12-year-old boy, owes Mr Ngwenya, a major, 150 Without his guardian's
assistance, Musa concludes an agreement with Mr Ngwenya in terms of which
Musa's debt to Mr Ngwenya s extinguished
(3) Mr Dlamini, a major, owes Stanley, a 15-year-old boy, RR800 Without his guardian's
assistance, Stanley concludes an agreement with Mr Dlamini in terms of which Stanley
extinguishes Mr Dlamini ‘s debt to him
(4) Goodman, a 14-year-old boy, owes Mrs Smith 300 Without his guardian's assistance
Goodman pays his debt to Mrs Smith
Question 18
Without her guardian's assistance Toni, a 12-year-old girl, concludes a contract with Nico, a
mayor In terms of the contract, Toni sells her watch to Nico Toni delvers the watch to Nico, after
which the contract s repudiated What remedy is available to Toni in order to reclaim her watch?
(1) Condictio
(2) Rei vindicatio
(3) Negotiorum gestio
(4) Restitutio in integrum
Question 19
Pet, a 13 year-old boy, concludes a contract of sale with Mrs Gouws, without the assistance of
his legal guardian In terms of the contract, Mrs Gouws sells a laptop to Piet for R3 000 The
actual value of the laptop at the time of conclusion of the contract is 3 500 On 5 April, a month
after the laptop was delivered to Pet, he sells the laptop for RR2 500 He spends the R2 500 as
follows R 2 200 on liquor for a party (this has already been consumed), and the remaining R300
on food On 10 April Mrs Gouws institutes an action against Pet Indicate which amount Mrs
Gouws will be able to claim from Pet on the ground of unjustified enrichment
(1) R300
(2) R2 200
(3) R2 500
(4) R3 000
Question 20
Use the same set of facts as in question 19 directly above. The only difference is the date on
which action Is instituted Mrs Gouws institutes an action on 4 April Indicate which amount Mrs
Gouws will be able to calm from Pet on the ground of unjustified enrichment
(1) R300
(2) 3 000
(3) R3 500
(4) R2 500
Question 21
Indicate the only correct statement Sarah is 17 years old and has recently concluded a valid civil
marriage with Tom. who is 21 years old Soon after the marriage Tom was killed in an aeroplane
crash The effect of Tom's death will be that
(1) Sarah's minority will revive
(2) the marriage will be void
(3) Sarah will remain a mayor
(4) the marriage will be voidable
Question 22
Which Act governs a minor's capacity to be held criminally accountable?
(1) Children's Act 38 of 2005
(2) Children's Status Act 82 0f 1987
(3) Criminal Law Amendment Act 32 of 2007
(4) Child Justice Act 75 0f 2008
Question 23
In which case did the court hold that a person is mentally ill if he or she understands the nature
and consequences of his or her juristic acts but Is motivated by delusions caused by mental
illness?
(1) Pheasant v Warne 1922 AD 481
(2) Pienaar v Pienaar's Curator 1930 OPD 171
(3) Lange v Lange 1945 AD 332
(4) Landmann v Mienie 1944 0PD 59
Question 24
Consider the following statements regarding the status of a mentally ill person Indicate which
one of the following statements is incorrect
(1) Any transaction a de facto mentally ill person enters into Is void and cannot be ratified
(2) A mentally ill person can enter into legal transactions with the assistance of his or
her curator
(3) A mentally ill person cannot enter to legal transactions even if he or she acquires only
rights and the other party only duties
(4) A juristic act that is performed by a mentally ill person during a lucidum intervallum Is
valid and enforceable
Question 25
Choose the only correct option A prodigal's
(1) legal position is similar to that of a mentally ill person
(2) curator may not ratty any transaction concluded by him or her
(3) will curator cannot make a on behalf of him or her
(4) curator must sue on his or her behalf for divorce
Section B
(a) Grace and Frank Blake were marred A daughter, Cynthia Blake, who Is now six years old,
was born from the marriage Grace and Frank recently got divorced Grace plans to marry
Brian Smith She also wants to change her surname to Smith She wants to change Cynthia's
surname to correspond with her new surname Grace approaches you for advice Advise her
on the procedure she has to follow to change Cynthia's surname to Smith
(4)
Grace needs to follow application procedures to change Cynthia’s surname. As mentioned
above the general rule is that Grace needs the written consent of Cynthia’s father, Frank, as
well Brian Smith, the new husband, unless the court dispenses with the consent
(b) In terms of the Sterilisation Act 44 of 1998 there are specific provisions regarding the
sterilisation of a person who is incapable of consent or incompetent to consent List the three
criteria that have to be present before a sterilisation will be performed on a woman who is
mentally disabled
(3)
The Sterilisation Act 44 of 1998 contains specific provisions regarding the sterilisation of a
person who is incapable of consenting or incompetent to consent. Such a person may be
sterilised only if he or she is mentally disabled to such an extent that he or she is incapable of all
of the following:
1) Making an independent decision about contraception or sterilisation.
2) Developing mentally to a sufficient degree to make an informed contraception or
sterilisation
3) Fulfilling the parental responsibilities associated with giving birth.
(c) In Shields v Shields 1946 CPD 242 the court held that a mother may not enter into a
contract on behalf of her unborn child, because legal personality only begins at birth and an
agent may not enter into a contract on behalf of a non-existent principal
(1)
(d) Write down the presumption of death procedure that will be instituted in each of the following
cases
(i) Delilah Baloyi was shot and killed during an armed robbery in a shopping mall
(1)
Statutory presumption of death
(ii) John Moyo went fishing off the coast at Lambert's Bay The boat capsized and John Moyo
was never seen again
(1)
Common law presumption of death

(a) Zola, an 8-year-old girl, was born of unmarried parents She lives in Cape Town with her mother,
Candice, who is unemployed Zola's father, Bobby, is also unemployed Bobby's parents are very
wealthy, but they refuse to contribute towards Zola's maintenance Candice wants to take Bobby's
parents to court to force them to support Zola She approaches you for advice on the matter
(i) Write down the name of the case in which it was held that only maternal grandparents are
liable for a child's maintenance
(2)
Motan v Joosub only maternal grandparents (parents of the mother) are liable for the child's
maintenance.
(ii) Write down the name of the case in which it was held that both maternal and paternal
grandparents are liable for a child's maintenance Furthermore, briefly indicate why this
court declared the decision mentioned in (i) above unconstitutional
(4)
Petersen v Maintenance Officer [2004] 1 All SA, declared this rule unconstitutional on the
ground that it unjustifiably violated the right of a child born of unmarried parents not to be
subject to unfair discrimination on the ground of birth and the child's right to dignity, and also
failed to afford paramountcy to the child's best interests.
(b) List the two requirements for the acquisition of a domicile of choice
1. The factum requirement entails that person must be lawfully present at a particular place.
particular place.
(c) Fill in the relevant names of the following three court cases that dealt with blood tests to
determine paternity
(i) In YM v LB the court held that the High Court as upper guardian of all minors may
consent to a blood test being performed on a minor even if the child's guardian opposes
the test
(2)
(ii) In S V L_the court held that it does not have the power to interfere with the decision of
the parent not to submit the child to blood tests
(2)
(iii) Ln Nell v Nell the Court held that ordering someone to submit to a blood test also affects
principles of substantive law, in that the test involves a violation of the person's bodily
integrity
(2)
(d) Name the four components that make up parental responsibilities and rights in terms of
section 18(2) of the Children's Act 38 of 2005
(4)
(1) Care
(2) Contact
(3) Guardianship
(4) Maintenance
(e) Name two ways in which a child born of unmarried parents can acquire the status of a child
born of marred parents
(2)
 by the subsequent marriage or civil union between the child’s parents
 by adoption

(a)
(i) What do you understand by the concept "multilateral contract"?
(2)
(ii) Give an example of a multilateral contract

(1)
An example of such a contract would be a contract of loan. The lender undertakes to lend the
borrower a certain amount and the borrower undertakes to repay the amount.
(b) Briefly describe the capacity to act of an infans and the capacity to act of a minor (2)
infans is a child under seven years of age and a minor is, a child between the ages of seven
and 18 years). An infans has no capacity to act and cannot conclude any juristic act, whereas a
minor has limited capacity to act
(c) Zelda, a 17-year-old gird, buys a PlayStation for R3 000 from Mr Nkomo Zelda
concluded the contract with the assistance of her guardian, Jean The actual value of the
Play Station at the time of the purchase was R1 000 Zelda paid a deposit of R 500 and
made an arrangement to pay the remaining amount in five instalments of R500 each
Please answer the following questions
(i) Jean, Zelda's guardian, wants to know if she is personally liable for Zelda's contract
Answer "yes" or "no" and provide a reason for your answer
(2)
No, as a rule, the guardian does not incur personal liability in respect of the minor's contract,
regardless of whether the guardian assists the minor or acts on the minor's behalf.
(ii) Suppose that Zelda concluded the contract without her guardian's assistance Under
which circumstances would Zelda be able to recover her deposit? Which remedy is
available in this instance (give the name of the remedy) for the minor?
(2)
If a minor has performed in terms of an unassisted contract and the contract is repudiated, the
minor may recover whatever he or she has performed. Property other than money is recovered
by the rei vindicatio and money by a condictio. The value of the minor's performance is reduced
by the amount by which the minor was unjustifiably enriched by the other party's performance.
Because a minor's unassisted contract cannot be enforced against the minor, the minor does
not have to apply for restitutio in integrum (return to the previous position) in order to recover his
or her performance.
(iii) If a minor enters into an agreement, he or she needs the assistance of his or her
guardian Name the various forms which the guardian's assistance may take
(3)
(3) The guardian may ratify the contract after it has been concluded
(d) List the two requirements for the application of restitutio in integrum
(2)
(e) Alfred is 17 years old He works as a cleaner in Kempton Park where he shares a flat
with friends Advise him whether it would be possible for him to conclude the following
agreements and provide a reason for every answer
(i) Alfred wants to buy condoms
(2)
Yes, Alfred can buy condom. A minor who has turned 12 may independently buy condoms and
receive free condoms on request. He or she may also be provided with other contraceptives on
request, provided that he or she receives proper medical advice and undergoes a medical
examination to determine whether there are any medical reasons why a specific contraceptive
should not be provided to him or her. A minor who obtains condoms, contraceptives or
contraceptive advice is entitled to confidentiality in this regard.
(ii) Alfred wants to conclude a civil union with Rose

(2)
No, Alfred cannot conclude a civil union with Rose, as the Civil Union Act restricts civil unions to
persons who have already reached the age of 18 years, a minor cannot enter into a civil union
even if he or she is assisted by his or her guardian.
(iii) Alfred wants to make his own will

(2)
Yes, Alfred will be able to make his own will, A person who is 16 years or older may make his or
her own will and in it dispose of his or her property as he or she pleases
8. OCT/NOV 2017
Question 1
Indicate which one of the following is recognised as a common law juristic person In our law
(1) a partnership
(2) a church
(3) a trust
(4) a bank
Question 2
A nasciturus can be defined as
(3) a child's clam for pre-natal injures
Question 3
In which one of the following cases did the court hold that a mother may not enter into a contract
on behalf of her unborn child, because legal personality only begins at birth and an agent may
not enter into a contract on behalf of a non-existent principle?
(1) Ex parte Boedel Steenkamp 1962 (3) SA 954 (0)
(2) Shields v Shields 1946 CPD 242
(3) Friedran v Glicksman 1996 (1) SA 1134 (W)
(4) Pinchin v Bantam Insurance Co Ltd 1963 (2) SA 254 (W)
Question 4
Indicate which one of the following statements regarding presumption of death is correct:
(1) An application for a presumption of death order must be brought in a court in the area
where the missing person was last seen.
(2) If a common law presumption of death is expressed the court will also make an order for
the dissolution of the missing person's marriage.
(3) Once the court has pronounced a presumption of death rt means that there is an
irrebuttable presumption that the missing person is dead.
(4) Any interested party, for example a spouse, can bring an application for a
common law presumption of death order.
Question 5
Legal capacity is
(1) the capacity to perform valid juristic acts
(2) the capacity to be accountable for delicts
(4) the capacity to appear as a party to a lawsuit
Question 6
Anna, a twenty-one-year-old woman, is mentally incapacitated Where will she be domiciled in
terms of the Domicile Act 3 of 1992?
(1) She will be domiciled at the home of one or both her parents
(2) She will be domiciled at the place she is most closely connected to
(3) She will be domiciled at the place where she chooses to reside
(4) She will be domiciled at the home of her curator ad litem
Question 7
In terms of section 21(1) of the Children's Act 38 of 2005 an unmarried biological father
automatically acquires full responsibilities and rights in respect of his child if certain
requirements are met Which one of the following is not one of those requirements?
(1) He lives with the child's mother in a permanent life partnership when the child IS born
(2) He consents or successfully applies to be identified as the child's biological father
(3) He contributes or attempts in good faith to contribute to the upbringing and maintenance
of the child
(4) He consents to enter into a civil union with the child's mother once the child Is
born
Question 8
Indicate the correct option in terms of section 1(2) of the Intestate Succession Act 81 of 1987
(1) a child born of unmarried parents cannot inherit intestate from his or her father.
(2) a child born of unmarried parents cannot inherit intestate from his or her mother
(3) a child born of unmarried parents can inherit intestate from both his or her mother
and father
(4) neither an unmarried father nor an unmarried mother can inherit intestate from his or her
child.
Question 9
An infans can be defined as
Question 10
Thabo is 17 years old with the assistance of his father he concludes a contract of sale with
Tommy to buy a scooter for R15 000. It later tums out that it is a second hand scooter. The
actual value of the scooter is only RR10 000. Which one of the following remedies is available to
Thabo?
(1) Rei vindicatio
(3) Condictio
Question 11
Indicate which one of the following statements is incorrect.
(1) It a minor concludes a contract with the consent of his or her guardian, the
guardian incurs personal liability for the minor's contract
(2) If a minor's guardian binds himself or herself as surety for the minor, the guardian incurs
personal liability for the minor's contract
(3) If a minor concludes a contract as his or her guardian's agent, the minor's guardian
incurs personal liability for the minor's contract.
(4) If a minor's guardian guarantees performance by the minor, the guardian incurs personal
liability for the minor's contract.
Question 12
Section 130 of the Children's Act 38 of 2005 contains rules that apply to an HIV test on a minor
Which one of the following is not one of the rules contained in this section?
(1) If the test is in the minor's best interests and the necessary consent has been given for
the test
(2) If the test is necessary to establish whether a health worker may have contracted HIV
due to contact in the course of a medical procedure with any substance from the minor's
body that may transmit HIV
(3) If any other person may have contracted HIV due to contact with a substance from the
minor's body that may transmit HIV, and a court has authorised the test
(4) If the minor is pregnant as a result of rape or incest and the minor consents to the test
and the court has authorised the test
Question 13
Minority cannot be ended by
(1) entering into a valid civil marriage
(3) attaining the age of 18 years
(4) entering into a civil union.
Question 14
Billy has been declared mentally ill. During a lucid interval he concludes a contract with Ben,
This contract ...
(1) voidable at Billy's choice.
(2) voidable at Ben's choice.
(3) void and unenforceable
(4) valid and enforceable.
Question 15
A person with normal mental ability who squanders his or her assets in an irresponsible way
Is ...
(1) an insolvent person.
(2) a minor.
(3) an intoxicated person.
(4) a prodigal
Section B
(a)
(i) What is the period prescribed by the Births and Deaths Registration Act 51 of 1992 within which
the Director-General of Home Affairs must be notified of the birth of every child who was born
alive?
(1)
(ii) Who has to give notice of the birth of an abandoned child?

(2)
In the case of an abandoned child, notice is given, after an enquiry has been undertaken in
terms of the Children's Act 38 0f 2005, by the social worker involved in the enquiry or an
authorised officer. The same applies in respect of notice of the birth of an orphan whose birth
has not already been registered.
(iii) Grace and Frank Blake were married. A daughter, Cynthia Blake, who is now six years old, was
born from the marriage. Grace and Frank recently got divorced. Grace plans to marry Brian
Steyn. She also wants to change her surname to Steyn She wants to change Cynthia's
surname to correspond with her new surname Grace approaches you for advice Advise her on
the procedure she has to follow to change Cynthia's surname to Steyn.
(4)
(b) Name the two requirements that have to be met for the nasciturus fiction to come into
operation.
(2)
(c) In Chisholm v East Rand Proprietary Mines Ltd It was held that a child whose father was
killed prior to his or her birth as a result of someone's delict has a dependant's action for
damages for loss of support against the person who committed the delict
(1)
(d) In terms of the Choice on Termination of Pregnancy Act 92 of 1996 a pregnancy may under
circumstances
(3)
The Choice on Termination of Pregnancy Act 92 of 1996 states that after 20th week of the
gestation period a pregnancy may be terminated only if a medical practitioner, after consultation
with another medical practitioner or a registered midwife who has undergone the prescribed
training course, is of the opinion that the continued pregnancy will do any of the following:
(e) In private law, proof of death is important for two reasons Name these two reasons
(2)
Proof of death is important for two reasons
 Deceased's estate may be administered and distributed
 The surviving spouse or civil union partner may enter into a new marriage or civil union.
[15]
(a) The Domicile Act 3 of 1992 recognises two formal requirements for acquiring a domicile of
choice Name them and briefly explain what each means
(4)
place.
particular place.
(b)(b)
(i) Anna and Gloria, who entered into a valid civil union two years ago, have just become the
parents of a baby boy whom they named Romeo. Romeo was born as a result of the
artificial fertilisation of Anna Gloria did not consent to the artificial fertilisation of Anna
Explain Romeo's status and give a reason for your answer
(2)
Romeo is considered a child born of unmarried parents. The child is a child born of married
parents only if both spouses or civil union partners consented to the artificial fertilisation. Thus,
although Anna and Gloria were in a civil union when Romeo was conceived, Gloria did not
consent to the artificial fertilisation
(ii) Would your answer in () above have been any different if all the parties consented to the
artificial insemination? Give a reason for your answer
(2)
Yes, If donor sperm and/or a donated ovum was used for the artificial fertilisation of a woman
who is married or a party to a civil union, the child is a child born of married parents only if both
spouses or civil union partners consented to the artificial fertilisation, consent is presumed to
have been given, anyone who alleges that it was absent bears the onus of proof.
(c) In terms of our common law, both unmarred parents have a duty to support their child What
is the legal position if nether parent can support the child? In your answer you have to refer
to case law
(5) (5)
(d) Explain the meaning of the maxim pater est quem nuptiae demonstrant
(1)
The pater est quem nuptiae demonstrant , that is, the marriage indicates who the father is
(e) The names of three court cases (dealing with blood tests) are given below Write the name of
the court case that offers authority for the statement in the first column, on the dotted line in
the second column.
(6) (6)
SvL
Seetal v Pravitha
YM v LB
Statement Case
The court held that the High Court as YM v LB
upper guardian of all minors has an
inherent power to order blood or DNA
tests f there is a dispute regarding
paternity and it is in the child's best
interests
The court held that it does not have the SvL
power to interfere with the decision of a
child's parents not to submit the child to
blood tests. The court accordingly refused
to order a blood test against the wishes of
the child's mother
The court declined to order blood tests, Seetal v Pravitha
since the blood test that was sought could
have disproved the paternity of the

mother's husband, with the result that the
child would have been a child of unmarred
parents Such an order would deprive the
child of his right to calm maintenance from
his mother's husband and t would not be
in the interest of the child
[20]
(a)
(i) Explain how the capacity to act of an infans differs from the capacity to act of a minor
(2)
and 18 years). An infans has no capacity to act and cannot conclude any juristic act.
(ii) Explain how the capacity to litigate of an infans differs from the capacity to litigate of a
minor
(5)
In terms of the common law, an infans does not have locus standi in iudico and cannot be a
party to a lawsuit even if he or she is assisted by his or her guardian. The guardian must always
litigate for the infans and on the infans’ behalf. The litigation is brought or defended in the name
of the guardian in his or her capacity as guardian.
(b) What remedy is available to a minor who has concluded a contract without the assistance
of his or her guardian to claim back performance that he or she has already rendered in
the following cases?
(i) If the minor's performance consisted of money condictio
(ii) If the minor's performance consisted of something other than money rei vindicatio
(2)
(c) Suppose that a minor concluded a contract with the assistance of his or her guardian and
the contract was prejudicial to the minor when it was made
(i) What remedy can the minor use to escape contractual liability?
(1)
Restitutio in integrum is an extraordinary legal remedy whereby a minor can escape liability if
he or she contracted with the assistance of his or her guardian (or the guardian contracted on
his or her behalf) and the contract was prejudicial to the minor at the moment it was made. This
(ii) List the two requirements for the application of the remedy in (i) above
(2)
a. The minor was assisted by his/her guardians or his/her guardian entered into the
b. The contract was to the minor’s detriment at the time of conclusion of the contract.
This remedy is also available where the minor initially contracted without the
necessary consent, but the guardian subsequently ratified the contract.
(d) Freddy, a 16-year-old minor, concludes a contract of sale with David Smith, a major,
without the assistance of his guardian. In terms of the contract, David Smith sells a
bicycle to Freddy for R6 000 The actual value of the bicycle at the time of conclusion of
the contract is R5 000 On 2 May, a month after delivery of the bicycle, Freddy sells the
bicycle for R4 000. He spends the RR4 000 as follows 1 000 on liquor and other
refreshments for a party (these have already been consumed), and the remaining R3 000
on food and clothes Answer the following questions
(i) Indicate what amount David Smith will be able to calm from Freddy on the ground of
unjustified enrichment if the action was instituted on 5 June Provide a reason for your
answer
(2)
So, Unjustified enrichment as of 20th September =
R4 000 – R1 000 = R3 000
(ii) Suppose David Smith instituted action against Freddy on 1 May What amount would
David Smith be able to claim from Freddy on the ground of unjustified enrichment?
Provide a reason for your answer
(2)
R5 000
(iii) Use the same facts as in (i) above. Suppose Freddy brought David Smith under the
false impression that he is 18 years old by producing a forged Identity document. On
which ground would Freddy be liable? Also explain which remedy would be available to
David Smith under these circumstances
(4)
Freddy indeed made a fraudulent misrepresentation about his majority by producing a forged
identity document. David Smith was clearly misled by this misrepresentation and induced to
enter into the contract, and he acted to his detriment (he suffered a loss). Since there is no
indication in the set of facts that David Smith had good reason to believe that he was dealing
with a minor, David Smith was entitled to accept Freddy’s statement that he was of age.

Freddy would thus be liable to David Smith for delictual damages on the ground of his
misrepresentation.
(iv) Suppose that David Smith was not fooled by Freddy's attempt to pass as a minor, as it
is obvious to him that Freddy is a minor. Would Freddy still be liable to David Smith?
Discuss.
(2)
enrichment.
David Smith was not induced to enter into the contract by Freddy’s misrepresentation. Freddy
would thus not be delictually liable to David Smith on the ground of the misrepresentation.
(e) Write down the minimum age for a minor to perform the following functions.
(i) The age at which a minor may witness a will
(1)
14 years
(ii) The age at which a minor may make his or her own will
(1)
16 years
(iii) The age at which a minor may independently obtain contraceptives
(1)
12 years
(a) Briefly discuss the influence of mental illness on a person's legal status
(6)
A mentally ill person has no capacity to act or locus standi in iudicio. A mentally ill person cannot
enter into legal transactions or litigate even with assistance of his or her curator. The curator
must conclude transactions and sue on behalf of the mentally ill person. A mentally ill person,
unlike a minor, cannot enter into transactions, even if he or she acquires only rights and the
other party incurs only duties. Any transaction a de facto mentally ill person enters into is void
and cannot be ratified. However, a juristic act a mentally ill person performs during a lucid
(b) Compare the legal capacity of a prodigal with the legal capacity of an insolvent
(4)
9. MAY/JUNE 2017
Question 1
A nasciturus can be defined as...
(2) a child's claim for pre-natal injuries
Question 2
Indicate which one of the following statements is correct.
(1) The duty to support a child born of unmarried parents, who has no living parents, is the
duty of the paternal grandparents only.
(2) A child born of unmarried parents may not be adopted by his or her biological father
(3) If an unmarried father dies, his estate is responsible for the child's maintenance
(4) The duty to support a child born of unmarried parents is the duty of the unmarried father
only.
Question 3
Which one of the following attributes does not determine a person's status in the private law?
(1) youth
(2) insolvency
(3) profession
(4) domicile
Question 4
Thandi is a twenty-year-old mentally incapacitated girl. Which one of the following statements
regarding her domicile is incorrect?
(1) Since she is mentally incapacitated, Thandi cannot acquire a domicile of choice
(2) Since she is mentally incapacitated, she will follow the domicile of her curator
(3) Since she is mentally incapacitated, a domicile by operation of law is assigned to her
(4) Since she is mentally incapacitated, she is domiciled at the place with which she is most
closely connected.
Question 5
Choose the only correct statement. In terms of section 1(1) of the Domicile Act 3 of 1992.
(1) a married woman follows the domicile of her husband
(2) a married woman acquires a domicile by operation of law
(3) a married woman acquires a domicile of choice
(4) a married woman's domicile of origin revives.
Question 6
In which case did the court hold that the High Court as upper guardian of minors has an
inherent power to order DNA tests in a paternity dispute if the order is in the child’s best
interests?
(1) M v R 1989(1) SA416(O)
(2) 0 v O 1992 (4) SA 137 (C)
(3) S v L 1992 (3) SA 713 (E)
(4) YM v LB 2010 (6) SA 338 (SCA)
Question 7
In terms of the Children's Act 38 of 2005 guardianship refers to
(1) maintaining a personal relationship with the child.
(2) administering and safeguarding the child's property
(3) safeguarding and promoting the child's well-being
(4) providing the child with the necessary financial support
Question 8
Penny is a minor and Donald is her guardian. In which one of the following examples will Donald
not incur personal liability in respect of Penny's contract?
(1) Donald bound himself as surety for Penny.
(2) Donald guaranteed performance by Penny.
(3) Penny concluded a contract as Donald's agent.
(4) Penny concluded a contract with Donald's consent
Question 9
Bongi is a minor. She wants to enter into a civil union with Tony, who is a major Which one of the
following examples will create a valid civil union?
(1) Bong needs the consent of her guardian
(2) Bong needs to wait until she is 18 years old
(3) Bong needs the consent of the High Court
(4) Bongi needs to get consent from the Minster of Horne Affairs.
Question 10
The following statements deal with medical treatment and operations of minors. Indicate the
only incorrect statement
(1) A minor below the age of 12 years may not have an operation without the consent of his
or her guardian
(2) A minor below the age of 12 years may have medical treatment without the
consent of his or her guardian, provided that he or she is duly assisted by his or
her guardian.
performed on him or her, provided he or she is sufficiently mature and has the mental
capacity to understand the benefits, risks, social and other implications of the treatment
performed on his or her child, provided he or she is sufficiently mature and has the
mental capacity to understand the benefits, risks, social and other implications of the
treatment
Question 11
Without her guardian's consent Jenny, a minor, enters into a contract with Paul, a major, in
terms of which she buys a motorcycle from Paul Which one of the following examples does not
ratify the contract?
(1) Jenny's guardian finds out about the contract afterwards and orders Jenny to give
the motorcycle back.
(2) Jenny's guardian finds out about the contract afterwards and tells Jenny that she bought
a bargain
(3) Jenny's guardian finds out about the contract afterwards and does not say anything.
(4) Jenny's guardian finds out about the contract afterwards and tells Jenny to ride carefully
because motorcycles are dangerous.
Question 12
Nelly is 17 years old Which one of the following agreements can Nelly validly conclude with
Bongani (aged 25) without her (Nelly's) guardian's assistance?
(1) An agreement in terms of which Nelly transfers a real right to Bongani
(2) An agreement in terms of which Nelly buys a watch from Bongani
(3) An agreement in terms of which Nelly's debt to Bongani is extinguished
(4) An agreement in terms of which Bongani 's debt to Nelly is extinguished
Question 13
(1) A person who is mentally ill for purposes of private law has no capacity to act
(2) A person who is senile or who is seriously ill has no capacity to act.
(3) A drug addict or alcoholic has no capacity to act.
(4) An insolvent has no capacity to act
Question 14
Choose the only incorrect option When a person's estate is sequestrated ..
(1) he or she immediately loses his or her capacity to litigate
(2) a trustee is appointed to act on behalf of the insolvent estate
(3) he or she may not be a director of a company
(4) all civil proceedings against an insolvent are suspended.
Question 15
Indicate which one of the following statements is correct.
(1) An interdicted prodigal's capacity to act is restricted by his or her mental defect.
(2) An interdicted prodigal's legal position to administer his or her property is analogous to
that of a mentally ill person
(3) An interdicted prodigal's curator may not honour transactions the prodigal concluded
before being interdicted
(4) An interdicted prodigal, who is prohibited from managing his or her own affairs, is
barred from being a director of a company or a trustee of an Insolvent estate
Section B
(a) Distinguish between natural and juristic persons in South African law.
(2)
A natural person is an actual human being, which is different from an “juristic person”. All
humans are recognised as legal subjects which can have rights, duties and capacities although
the content of these rights, duties and capacities may vary depending on factors such as the
person's mental capacity and age.
A juristic person is an association of natural persons recognized by the law as being entitled to
rights and duties in the same way as a natural or human person. A juristic person enjoys a legal
existence independent from that of its members or natural persons who created it. . Juristic
persons are all associations incorporated in terms of general enabling legislation or association,
which comply with the common law requirements. Common examples companies, banks, co-
operatives
(b) Name the three common-law requirements with which an association must comply in order
to be recognised as a juristic person
(3)
members may vary.
in its own right.
(c) Ms Nicole Nkosi and Mr Brian van Zyl were in a relationship A daughter, Lyla van Zyl, was
born from their relationship. After breaking up with Brian two months ago, Nicole entered
into a civil union with Ms Grace Dlamini. She has since changed her surname to Dlamini,
and is now known as Mrs Nicole Dlamini She wants to know whether she will be able to
have her daughter's surname changed to correspond with hers Advise Nicole by explaining
the legal position. A mere "yes" or "no" answer will not be awarded a mark.
(3)
If an unmarried mother marries someone other than the child's father or enters into a civil union
with someone who is not the child's father, she may apply to have the child's surname changed
to correspond to hers. She needs the written consent of her husband or civil union partner. If the
child bears his or her father's surname, the mother also needs the written consent of the child's
father, unless she has sole guardianship or the court dispenses with consent.
As the aforementioned rule, Nicole needs to follow application procedures to change Lyla’s
surname. Nicole needs the written consent of Lyla’s father, Brian, as well Grace Dlamini, the
new civil union partner, unless the court dispenses with the consent
(d) In terms of the nasciturus fiction, a situation may arise where a nasciturus would have had
certain clams or rights had he or she already been born. In such a case, the legal position is
kept in abeyance until the nasciturus is born alive Briefly explain what will happen to these
clams or rights if the nasciturus dies during birth Provide a reason for your answer
(2)
There is a condition that the application of the nasciturus fiction must be to the advantage of
the nasciturus. If the nasciturus dies during birth the nasciturus fiction will not be applied (not
come into operation) as the only persons who will benefit from the application of the fiction are
third persons, such as the child’s intestate heirs and not the child himself or herself.
(e) Penelope is six months pregnant with her first child. She is in the process of divorcing her
husband, Bob. They want to enter into a settlement agreement in terms of which Bob will not
be responsible for the child's maintenance after his or her birth. Discuss with reference to
authority whether the court will make such an order
(3)
Section 18(2)(d) of the Children’s Act imposes parental responsibilities and rights in respect of a
child which is to contribute to maintenance for the child. Since both Penelope and Bob have
such parental responsibilities imposed on them, they cannot enter into an agreement which
would see their parental responsibilities being disposes of.
Against this backdrop, No, the divorce settlement agreement between Penelope and Bob would
be void. The courts are inclined to refused such agreements, as was held in the case of Shield
vs Shield 1946 CPD 242 that a mother cannot waive her unborn child's right to claim
maintenance and such agreements are contra bonos mores (contrary to good morals). Likewise,
fathers would not be permitted to waive his unborn child's right to claim maintenance from his or
her mother after birth.
However, for convenience sake, the courts are more inclined to provide for the child's
maintenance in the divorce order, to obviate the necessity for further legal proceedings about
maintenance after the child's birth
(f) Suppose that the High Court pronounced a common-law presumption of death Answer the
following questions:
(i) Who may bring an application to set aside the presumption of death order?
(1)
A court who pronounced presumption can set aside original order if due to further evidence
clear that missing person isn’t dead. Can be done on application of any interested party or the
person themselves.
(ii) On what basis may the court that pronounced the presumption set aside the original order?
(1)
Can set aside original order if due to further evidence clear that missing person isn’t
[15]
(a) Traditionally a legal subject can have four capacities Name these four capacities
(4)
(b) Johnny is serving a life sentence in prison after having been found guilty of murder. He is
serving his prison sentence at Pollsmoor Prison in Cape Town. With reference to case
law, explain where Johnny is domiciled
(3)
Military staff, diplomats, public servants, employees of foreign governments or businesses, and
prisoners were initially considered incapable of acquiring a domicile of choice at the place where
they were stationed, posted or imprisoned on the ground that their employers or the state
determine where they are to reside and that they therefore cannot give effect to their intention of
settling at a particular place. However, in Nefler v Nefler the court held that a prisoner serving a
life sentence automatically acquired a domicile of choice in prison. Therefore, Johnny domiciled
in Cape Town
(c) Although parentage is usually based on the biological fact of being genetically related to
the child, section 1(1) of the Children's Act 38 of 2005 expressly excludes three
categories of persons from legally qualifying as "parent" Name these three categories
(3)
child's mother.
been terminated.
(d) In terms of section 1(1) read with section 18(2) of the Children's Act 38 of 2005 parental
responsibilities and rights consist of four components. Name these four components.
(4)
(1) Care
(2) Contact
(3) Guardianship
(4) Maintenance
(e) John Chaka and Zanele Ngwenya are not married, but they have been living together for
five years. They have a son, Sam, who is eleven months old. Answer the following
questions
(i) May Sam inherit intestate from John? Answer "yes" or "no" and then explain your
answer with reference to authority
(3)
Yes, in terms of section 1 (2) of the Intestate Succession Act 81 of 1987, the fact that a child
was born of unmarried parents does not affect the capacity of one blood relation to inherit the
intestate estate of another. Children who are born of unmarried parents can inherit intestate
from both parents (and more distant blood relations) and that both parents (and more distant
blood relations) can inherit intestate from the children.
(ii) ls Sam a child born of marred or unmarred parents?

(1)
unmarred parents
(iii) Name two possible ways in which Sam's status can be changed.
(2)
(a) by the subsequent marriage or civil union between the child’s parents
(b) by adoption
[
(a) Answer the following questions regarding legal status
(i) Julia is a four-year-old girl Does she have capacity to act? Provide a reason for your
answer
(2)
An infans has no capacity to act and cannot conclude any juristic act. The law does not deny the
existence of an infans' ability to form a will, but rather because the law attaches no
consequences to his or her expression of will. An infans cannot conclude a juristic act even with
the assistance of his or her guardian; The guardian has to act for the infans and on the infans'
behalf.
(ii) Tom, a seventeen-year-old boy, steals a chocolate from his local supermarket and is
caught Can he be held criminally liable? Provide a reason for your answer
(2)
A minor's capacity to he held criminally accountable is governed by the Child Justice Act 75 of
2008 – A minor below the age of 10 years cannot be held accountable at all for a crime he or
she commits, while a child between the ages of 10 and 14 years is presumed to be criminally
unaccountable. Tom, a seventeen-year-old boy over the age of 14 is criminally accountable in
the same way as an adult.
(iii) Beauty, a sixteen-year-old girl, wants to enter into a civil marriage, but she does not have
the consent of her guardian. May she get married? Provide a reason and authority for
your answer.
(3)
A minor may enter into a civil marriage if he or she has the requisite consent (All the guardians),
unless the court orders otherwise. If a guardian is absent, mentally ill or in any other way
incompetent to consent, the presiding officer of the Children's Court may grant consent. If a
guardian or the presiding officer withholds consent, the minor may approach the High Court for
consent.
(b) Briefly explain the difference between a civil obligation and a natural obligation
(2)
A civil obligation is a legally enforceable obligation, while a natural obligation is unenforceable.
(b) Oliva is a fifteen-year-old girl and Tina is her 20-year-old cousin. Consider each of the
following scenarios individually and advise the relevant parties
(i) Without the assistance of her guardian, Olivia buys a cellular phone from Tina. She
agrees to pay it off over two months Suppose that Olivia changes her mind a few days
later May she rely on her minority to avoid her obligations? Provide a reason for your
answer
(2)
guardian’s assistance in concluding the contract. Olivia may avoid her obligations and may use
condictio to claim back the money she paid because she had no assistance from the guardian.
(ii) Without the assistance of her guardian, Oliva buys a television from Tina She agrees to
pay rt off over six months Suppose that Tina changes her mind the following week and
now wants the television back May she rely on Olivia's minority to avoid performance?
(2)
guardian’s assistance in concluding the contract. However, an adult who enters into a contract
with a minor is, however, obliged to render performance.
Tina may not rely on Olivia’s authority because she was aware of her age since they are related,
it can be accepted that Tina knew that Olivia is in fact a minor and Olivia did not mislead her
about her being a major.
(iii) Without the assistance of her mother, who is her guardian, Olivia buys a tennis racquet
from Tina and pays for it with her pocket money When she gets home, her mother tells
her to return the racquet She returns rt, but Tina now refuses to give her money back
Does Olivia have any legal remedy to get her money back? Provide a reason for your
answer
(2)
guardian’s assistance in concluding the contract. Olivia may use condictio to claim back the
money because she had no guardian’s assistance when she entered into the agreement.
(c)(c)
(i) ln Louw v MJ and H Trust (Pty) Ltd the court held that a minor who had bought a
motorcycle from an adult without the necessary assistance of his guardian, could not
reclaim the part of the purchase price he had already pad.
(1)
(ii) Briefly discuss Heaton's criticism with regard to the judgment m this case
(3)
The court erred in denying the minor restitution in integrum. The minor’s claim for the recovery
of payments already made should have been upheld. The major would have sued the minor on
the grounds of delict or unjustified enrichment not the contract itself.
(d)
(i) What does the legal remedy restitutio in integrum mean?
(1)
Restitutio in integrum is an extraordinary remedy and is only available if the contract was
prejudicial to the minor when it was concluded. Prejudice arising at some later stage is
irrelevant. This remedy restores the parties to a contract to their previous positions before the
agreement.
(ii) List the two requirements for the application of restitutio in integrum.
(2)
(e) Pauline is seventeen years old. On 15 February 2015 and without the assistance of her
guardian, she concludes a contract of sale with Zelda, an adult, in terms of which Zelda sells
Pauline a piano for R5 000 On 18 February 2015 Pauline finds out that the actual value of
the piano at the time of conclusion of the contract was R4 000 On 5 March 2015 the piano is
stolen Pauline refuses to pay for the piano, and Zelda decides to institute action against
Pauline in each of the following cases, indicate for what amount Pauline may sue·
(i) The amount is R 0.00 if Zelda instituted action on 12 March 2015.
(1)
(ii) The amount is R 4 000 if Zelda instituted action on 22 February 2015
(1)
(iii) The amount is R5 000 if Zelda instituted action on 17 February 2015
(1)
[25]
(a) Name three circumstances which the court can take into consideration when deciding
whether a minor is emancipated in a particular instance
(3)
Whether or not a minor has been emancipated is a question of fact, which the court must decide
upon after considering all the circumstances of the case. That the minor lives on his or her own
and manages his or her own business are mere factual details which, together with others such
as the minor's age, the relationship between the minor and the guardian, the nature of the
minor's occupation and the length of time for which the occupation has been carried on, help to
establish whether emancipation has in fact taken place
(b) Complete the following sentence. In terms of section 17 of the Children's Act 38 of 2005 the
age of majority was lowered from 21 years to 18 years of age.
(1)
(c) Define the term "prodigal"
(3)
Prodigals are persons with normal mental ability who squander their assets in an irresponsible
and reckless way due to some defect in their power of judgement. To protect such people and
their families against their prodigal tendencies, their status can be restricted by an order of the
court. Unlike mental illness, prodigality as such does not affect a person's status. It is only once
the person has been declared a prodigal and has been prohibited (interdicted) from managing
his or her affairs that his or her capacities are restricted.
10. OCT/NOV 2016

Question 1
(1) Choose the correct option In modern South African law all beings of human descent,
irrespective of how deformed or disabled they may be are regarded as
(1) monstra
(2) nascitum
(3) legal subjects
(4) juristic persons
Question 2
In which case did the court hold that a child whose father was killed prior to his or her birth as a
result of someone else's delict has a dependant's action for damages for loss of support against
the person who committed the delict?
(2) Road Accident Fund v Mtati 2005 (6) SA 215 (SCA)
(3) Pinchun v Santam Insurance Co Ltd 1963 (2) SA 254 (W)
(4) Chisholm v East Rand Proprietary Mines Ltd 1909 TH 297
Question 3
Which one of the following attributes or factors is not an attribute or factor that determines a
person's status?
(1) insolvency
(2) domicile
(3) occupation
(4) intoxication
Question 4
From the following statements that relate to domicile, choose the only correct option
(1) The permanent residence of a person is the same as domicile in the legal sense
(2) Domicile of choice can only be established f a person has been residing at a specific
place continuously for at least twelve months
(3) Domicile of origin revives when a person abandons his or her domicile of choice without
acquiring a new domicile
(4) A prohibited immigrant cannot acquire a domicile of choice in South Africa, even f
he or she has the intention of settling here permanently
Question 5
Read the statements below regarding the status of a child who is born as a result of artificial
fertilisation, and choose the only incorrect one
(1) A child born as a result of the artificial fertilisation of a woman with the semen of her civil
union partner is always a child born of married parents
(2) A child born as a result of the artificial fertilisation of a single woman is always a child
born of unmarred parents
(3) A child born as a result of the artificial fertilisation of a woman with the semen of her
husband is always a child born of married parents
(4) A child born as a result of the artificial fertilisation of a civil union partner with the
semen of a third party is always a child born of unmarried parents
Question 6
Choose the only correct option In terms of the Children's Act, "contact" refers to
(1) providing the child with a suitable place to hive
(2) maintaining a personal relationship with the child
(3) guiding the child's behaviour in a humane manner
(4) safeguarding and promoting the child's well-being
Question 7
Which one of the following statements that relate to succession is correct?
(1) A child born of unmarried parents has the capacity to inherit intestate form both
parents
(2) A child born of unmarred parents has the capacity to inherit intestate from his or her
mother only
(3) A child born of unmarried parents has the capacity to inherit intestate from his or her
father only
(4) A child born of unmarred parents has the capacity to inherit intestate from nether parent
Question 8
In which one of the following cases did the court, in an obiter dictum, hold that it Is not always in
an individual's interests to know the truth about the identity of his or her father?
(1) Ex parte Emmerson 1992 (3) SA 987 (w)
(2) S v L 1992 (3) SA 713 (E)
(3) YM v LB 2010 (6) SA 338 (SCA)
(4) Nell v Nell 1990 (3) SA 889 (T)
Question 9
Legal capacity is
(2) the capacity to be accountable for crimes
(3) the capacity to appear in a court of law
Question 10
Complete the following sentence If a minor enters into an unassisted contract which Imposes
duties on him or her, he or she is not contractually liable. On the minor's side it creates
(1) a civil obligation
(2) a natural obligation
(3) a multilateral contract
(4) a reciprocal contract
Question 11
Without his guardian's assistance Simon, a 12-year-old boy, concludes a contract with Rose, a
mayor in terms of the contract Simon sells his bicycle to Rose Simon has already delivered the
bicycle to Rose What remedy is available to Simon in order to reclaim his bicycle?
(2) Rei vindicatio
(4) Condictio
Question 12
(1) conclude an employment contract
Question 13
From the statements below that deal with the ways in which a parent or guardian may assist a
minor in contracting, choose the only incorrect option
(1) The guardian may conclude a contract on behalf of the minor
(2) The guardian may ratify the agreement after it has been concluded
(3) The minor may personally enter into a contract with the consent of the guardian
(4) The guardian may enter into an antenuptial contract on behalf of the minor
Question 14
Indicate which one of the following statements regarding emancipation is incorrect.
(1) Ether parent may emancipate the child, provided that the parent has guardianship of the
child
(2) If a minor has no parents, the minor's legal guardian may emancipate the minor
(3) The onus of proving emancipation rests upon the person who alleges that it has taken
place
(4) (4] Only the Hugh Court within whose area of jurisdiction the minor resides may
Question 15
Choose the only correct option to complete the sentence When a person's estate is
sequestrated
(1) he or she immediately loses all capacity to litigate
(2) a curator bonus is appointed to act on behalf of the insolvent estate
(3) all civil proceedings by or against the insolvent are suspended
(4) all criminal proceedings against the insolvent are suspended
Section B
(a) On 1 September 2014 Mr and Mrs Khumalo became the proud parents of a baby boy,
Andrew Answer the following questions
(i) Who must be notified of Andrews birth? Provide authority for your answer
(2)
must be notified of the birth of every child who was born alive.
(ii) Notice of Andrews birth must be given within 30 days of the child's birth
(1)
(iii) Who is responsible to give notice of Andrew's birth?
(1)
within 30 days of the child's birth. Where possible, both parents must give notice. If parents are
deceased, notice must be given by the child's next-of-kin or legal guardian. If the child has
already reached the age of 18 years, they may person ally give notice.
(iv) When does Andrew's legal subjectivity commence?

(1)
Legal personality begins at birth.
(b)
(i) In terms of the (name Of the Act) termination of a pregnancy is allowed under certain
circumstances
(1)
(ii) After the 20" week of the gestation period a pregnancy may be terminated only if a
medical practitioner, after consultation with another medical practitioner or a registered
midwife who has undergone the prescribed training course, is of the opinion that the
continued pregnancy will result in any of the following
(3)
(c) Anne's husband, Tim, has been missing for 10 years Last year the court granted an order
presuming hmm to be dead Answer the following questions
(i) Anne wants to know if Tim's estate may be divided among his heirs. She also wants to
know what will happen regarding his estate f he is not dead and returns at a later stage
(2)
(ii) Anne wants to know f she will be able to remarry now that the presumption of death
order has been granted Explain to her whether her marriage has been terminated. In
your answer you have to refer to authority
(4)
[15]

(a) One of the requirements for the acquisition of a domicile of choice is that the person must
have the intention of settling at that place for an indefinite period Beaning this statement in
mind, answer the following questions
(i) Joyce is twelve years old She was raised in Cape Town Two years ago, her parents
divorced Her father is still living in Cape Town, but her mother decided to move to Durban
to be with her family Joyce has been living with her mother since the divorce Where is
Joyce domiciled? Provide a reason and also authority for your answer
(3)
most closely connected. Therefore, Joyce is domiciled in Durban where she resides with her
mother
(ii) Peter, a Nigerian citizen, is a prisoner serving his sentence in South Africa. With
reference to common law and case law, write a short paragraph indicating whether Peter
is able to acquire a domicile of choice in South Africa or not
(3)
Military staff, diplomats, public servants, employees of foreign governments or businesses, and
prisoners were initially considered incapable of acquiring a domicile of choice at the place where
they were stationed, posted or imprisoned on the ground that their employers or the state
determine where they are to reside and that they therefore cannot give effect to their intention of
settling at a particular place. However, in Nefler v Nefler the court held that a prisoner serving a
life sentence automatically acquired a domicile of choice in prison. It is unclear if Peter is
serving a life sentence, and therefore he is not able to acquire domicile of choice in South Africa.
(b) When considering an application for an order assigning guardianship to someone in terms of
section 24 of the Children's Act, the court must take certain factors into account Name these
factors
(3)
A person who has an interest in the child's care, well-being or development may approach the
High Court in terms of section 24 for an order assigning guardianship to him or her. When
considering the application, the court must take the following factors into account:
(3) Any other fact that should, in the opinion of the court, between into account.
(c) There are several factors that may be relevant in proving paternity of a child who is born of
unmarried parents Choose any two of these factors that may be relevant. In proving (not
disproving) paternity Briefly discuss how each of these factors may be used to prove
paternity
(4) (4)
The following factors can be considered when proof is sought that a particular man is not the
father of a particular child (this applies to children born of both married and unmarried parents).
(1) Absence of sexual intercourse
If it can be proved that the man who is presumed to be the child's father did not have sex
with the child's mother at any time when the child could have been conceived (example,
because he is impotent or was elsewhere at the time), the presumption of paternity is
rebutted.
(2) Sterility
Proof of sterility obviously shows that the man is not the child's father.
(3) The exceptio plurium concubentium
Sometimes a man admits that he had sex with a woman during the time the child could have
been conceived, but then alleges and proves that the woman also had sex with another.
The generally accepted view nowadays is that the exceptio does not form part of our law.
Accordingly, it is of no avail to a man to prove that other men also had sex with the child's
mother.
(4) Physical features
The fact that the physical features of the child do or do not resemble those of the alleged father
does not bear much weight in proving or disproving paternity. Physical appearance may,
however, be considered in conjunction with other factors which prove or disprove paternity
(5) Contraceptives
Evidence that a contraceptive device was used during sex is not recognised as sufficient
proof that a particular man is not the child's father. R v Swanepoel 1954 (4) SA 31 (0)
(d) Briefly answer the following questions with regard to FS v JJ 2011 (3) SA 126 (SCA)3
(i) Briefly mention the facts of the case
(3)
A child was born and the child’s mother died shortly after birth. The child’s parents intended to
marry each other before the death of the child’s mother. The father and the grandparents of the
child had been engaged in a protracted battle for the custody of the child
(ii) Briefly indicate what the decision of the Supreme Court of Appeal was
(2)
This case highlights the rights and obligations of unmarried fathers. The court /Lewis JA held
that since the enactment of the Children’s Act 38 of 2005 unmarried fathers automatically
acquired parental rights and responsibilities, from 1July 2007. The SCA held that the child’s best
interests would be served by her with her father not her grandparents. The court dismissed the
ruling of the High Court which awarded the custody of the child to the grandparents.
The court also pointed out that the litigation of this case had not been in any of the parties’
interests. It endorsed the views expressed in The Brownlee case that Mediation in family
matters is the better way to deal with these matters and should be the first resort in order to
avoid lengthy and costly litigation.
(iii) Briefly indicate the relevance of this case with regard to section 21 of the Children's Act
(2)
An unmarried biological father automatically has parental responsibilities and rights in respect of
his child if he meets certain requirements.

(a) Fill In the missing word(s)
(i) Section 28(2) of the Constitution of the Republic of South Africa, 1996 provides that a
child's best interests (two words) are of paramount importance (two words) in every
matter concerning the child
(1)
(ii) In Edelstein v Edelstein (Case name) it was decided that an antenuptial contract
concluded by a minor without assistance Is void and cannot be ratified by the minor or his
or her guardian after the marriage has taken place
(1)
(b) Give an example for each type of contact mentioned below
(i) A unilateral contract
(1)
A unilateral contract is a contract in terms of which only one of the parties undertakes to render
some performance. An example of such a contract would be a contract of donation. Only the
donor undertakes to render some performance
(ii) A multilateral contract

(1)
(c) Consider the following examples regarding the capacity to act of a minor. In each case
Indicate whether there is a valid contract Provide a reason for your answer
(i) Musa, who is six years old, uses money hrs uncle gave him to buy a packet of sweets
without his father's or mother's assistance
(2)
Invalid contract as an infant (0 – 7) has no capacity to act,
(ii) Theresa, a 17-year-old girl, owes Sam, a major, R500 Without her guardian's assistance,
Theresa enters into an agreement with Sam which extinguishes her debt to Sam
(2)
Valid contract, A minor may, enter into an unassisted contract if the contract improves his or her
position without imposing duties on him or he, guardian's consent is unnecessary.
(d) If a minor enters into an agreement with the assistance of his or her guardian, he or she
may incur contractual liability Name the various forms which the guardian's assistance may
take
(3)

(e) With the assistance of his guardian, Jane, a 15-year-old boy, David, concluded a contract
with Mrs Williams to buy a laptop for R7 000 The actual value of the laptop at the time of the
purchase was R5 00O David pad a deposit of R1 000 and made an arrangement to pay the
remaining amount in six instalments of R1 000 each Answer the following questions
(i) Jane, David's guardian, wants to know whether she is personally liable in respect of
David's contract Provide a reason for your answer
(2)
As a rule, a guardian does not incur personal liability in respect of the minor's contract
regardless of whether the guardian assists the minor or acts on the minor's behalf. There are,
however, four exceptions to this rule. Name these exceptions.
 If the minor acted as his or her guardian's agent.

 If the guardian guaranteed the minor's performance.
 If the guardian bound himself/herself as surety for the minor's performance.
 A guardian can also incur liability on the basis of negotiorum gestio.
(ii) Which extraordinary remedy is available to the minor, David, should he wish to escape
contractual liability?
(1)
restitutio in integrum
(iii) List the two requirements for the application of the remedy in (ii) above
(2)
(iv) Suppose that David concluded the contract without his guardian's assistance Would
David be able to recover hrs deposit? Which remedy is available m this instance (give the
name of the remedy)? Give a reason for your answer
(2)
David would be able to recover his deposit because the minor’s unassisted contract cannot be
enforced against the minor. A general rule, a minor cannot incur contractual liability if he or she
did not have his or her guardian’s assistance in concluding the contract. David may use
condictio to claim back the money because he had no guardian’s assistance when he entered
into the agreement.
(f) The names of three court cases (dealing with minority) are given below Write the name of
the court case that offers authority for the statement in the first column, on the dotted ne in
the second column
(6)
Nel v Divine, Hall & Co
Louw v MJ & H Trust (Ply) Ltd
Statement Case
In this case the Appellate Division (now the Edelstein v Edelstein
Supreme Court of Appeal) authoritatively
rejected the benefit theory
The court held that a minor, who bought a Louw v MJ & H Trust (Ply) Ltd
motorcycle from an adult without the
assistance of hrs guardian (the minor had
misrepresented himself as emancipated
when he concluded the contract), could not
reclaim the part of the purchase price he
had already paid
If a contract, taken as a whole, was to the Nel v Divine, Hall & Co
minor's benefit, the minor was bound by it
[25)
(a) Following the lowering of the age of majority from 21 years to 18 years, there was
uncertainty about what effect this lowering of age had on the prescription of a minor's claim.
The issue was raised in one of your prescribed cases Provide the name of the case and
indicate, in one sentence, what the court held in this regard
(2)
On 1 July 2007, section 17 of the Children's Act lowered the age of majority from 21 to 18 years
of age. The Act does not operate retroactively, the lowering of the age of majority did not
retroactively affect rights that vested in or accrued to a person who was below the age of 21
years before 1 July 2007 This principle was confirmed in Malcolm v Premier, Western Cape
Government NO 2014 (3) SA 177 (SCA). Case dealt with the prescription of a minor’s claim. In
terms of the Prescription Act 68 of 1969, prescription usually takes place three years after the
date on which the claim arises but, in the case of a minor, completion of prescription is delayed
until at least a year after the minor becomes a major (see Shange v MEC for Education,
KwaZulu-Natal 2012 (2) SA 519 (KZD))
(b) In Lange v Lange the Appellate Division (now the Supreme Court of Appeal) named two
circumstances when a person would be regarded as mentally if for purposes of\ the private
law Name these two circumstances
(2)
According to the Supreme Court of Appeal in Lange v Lange 1945 AD 332), a person is mentally
is entering into
(c) Indicate whether the following statements are true or false

(i) A curator personae must institute an action for divorce on behalf of a mentally ill person.
FALSE
(1)
(ii) A prodigal may be a trustee of an insolvent estate FALSE
(1)
(iii) An interdicted prodigal may sue unassisted for divorce TRUE
(1)
(iv) An insolvent person may not be the director of a company TRUE
(1)
(d) One evening while having a few drinks at a pub, Johnny buys a motorbike from a friend,
Cameron. The following morning he regrets it and tries to get out of the contract by alleging
that he was drunk the previous evening Answer the following questions
(i) Suppose Johnny was so drunk that he did not have the faintest notion of concluding a
contract What effect will it have on the validity of the contract?
(1)
The influence of alcohol or drugs must be such as to deprive the person of his or her powers of
reasoning. A transaction which is concluded under these circumstances as in Johnny’s case, is
void ab initio (void from the start - not voidable) and cannot be ratified.
(ii) Who must prove that Johnny was drunk when he concluded the contract of sale?
(1)
The onus of proof is on the party who alleges that the person was under the influence of alcohol
or drugs.
11. MAY/JUNE 2016

Question 1
From the following statements that deal with legal subjects, choose the only incorrect one
(1) In our law, seriously deformed persons are not recognised as legal subjects
(2) The juristic person enjoys a legal existence independent from its members.
(3) South African law recognises two categories of legal subjects
(4) In our law, human beings are known as natural persons
Question 2
Which one of the following statements regarding the registration of the births of children in terms
of the Births and Deaths Registration Act 51 of 1992 is incorrect?
(1) A child born of unmarried parents is registered under the surname of the mother unless
the parents jointly request that the father's surname be used
(2) The duty to give notice of the child's birth always rests on the child's parents
(3) The Director-General of Births and Deaths must be notified of the birth of every child
who was born alive
(4) Notice of the birth of a child who was born alive must be given within 30 days of the
child's birth
Question 3
Below follows a list of clauses from testators' wills in each instance C was already conceived at
the time of the testator's death, but was only born alive after the testator's death Indicate in
which one of the following examples C would not be able to inherit
(1) "I bequeath my estate to my children "
(2) "I bequeath my estate to my children A and B, and any other child(ren) that my wife
expects at the time of my death."
(3) "I bequeath my estate to all my children who are alive at the time of my death"
(4) "I bequeath my estate to my children A and B"
Question 4
Choose the correct option in terms of the Children's Act 38 of 2005, the term "parental authority"
was replaced by
(1) parental care of the child
(2) guardianship in respect of the child
(3) parental responsibilities and rights
(4) care and contact of the child
Question 5
Indicate which of the following persons may not acquire a domicile of choice
(1) an insolvent person
(2) a divorced 17-year-old person
(3) a foreign diplomat
(4) an illegal alien
Question 6
AII the statements below deal with sterilisation Indicate which one of the following statements is
incorrect:
(1) A person who is a party to a civil marriage in terms of the Marriage Act 25 of 1961
requires the other spouse's consent in order to be sterilised
(2) A person may be sterilised if he or she is mentally disabled to such an extent that he or
she is incapable of fulfilling the parental responsibilities associated with giving birth
(3) A person who is a party to a civil union in terms of the Civil Union Act 17 of 2006 does
not require the other party's consent to voluntary sterilisation
(4) The sterilisation Act 44 of 1998 permits the voluntary sterilisation of anyone who has
reached the age of 18 years and is capable of consenting
Question 7
Indicate which one of the following is not an example of a multilateral contract
(1) a loan
(2) a donation
(3) a contract of sale
(4) a contract of lease
Question 8
(1) a fiction that creates legal personality
(3) a child's claim for pre-natal injuries
Question 9
In which one of the following cases did the court hold that a prisoner who had been prisoned for
life automatically acquired a domicile of choice in prison?
(1) Naville v Naville 1957 (1) SA 280 (C)
(3) Nefler v Nefler 1906 ORC 7
Question 10
Which one of the following is not a way in which a child born of unmarried parents can acquire
the status of a child born of married parents?
(1) the adoption of the child
(2) the subsequent marriage of the child's parents
(3) the subsequent civil union of the child's parents
(4) an order of the high court where the parents are domiciled
Question 11
Choose the correct option an infans can be defined as
Question 12
Complete the sentence In terms of the Child Justice Act 75 of 2008
(1) a child between the ages of 7 and 14 is presumed to be criminally unaccountable
Question 13
In which case did the court hold that an antenuptial contract that was concluded without the
necessary consent is void and cannot be ratified by the minor or the minor's guardian once the
marriage has taken place?
(1) S v De Blom 1977 (3) SA 513 (A)
(3) Edelstein v Edelstein 1952 (3) SA 1(A)
(4) Net v Divine, Hall & Co (1890) 8 SC 16
Question 14
Section 43 of the Basic Conditions of Employment Act 75 of 1997 prohibits employment of a
minor under the age of
(1) 12 years
(2) 14 years
(3) 15 years
(4) 18 years
Question 15
The following statements deal with capacity to act Indicate which one of the following
statements is incorrect
(1) The fact that a curator has been appointed for a deaf person, results in that
person losing his or her capacity to act altogether
(2) A juristic act entered into by a mentally ill person during a lucidum intervallum (lucid
interval) is valid
(3) The capacity to act of a prodigal is similar to that of a minor
(4) A prodigal may marry without the consent of his or her curator
Section B
(a) Mrs Singh is a customer of ABC Bank She invested some money with the bank on the
advice of Mrs Kheti, a functionary of the bank However, she is unhappy about the interest
she earned on the investment Mrs Singh now wants to take this matter to court She is not
sure whether she should sue the bank or Mrs Kheti Please advise her in this regard and
provide reasons for your answer
(2)
Mrs Singh can sue ABC Bank, as Mrs Kheti acted in her capacity as a functionary of the ABC
bank. The reason as to why Mrs Singh can institute legal action against the ABC Bank is
because the bank is a legal subject that enjoys legal existence independent from that of its
members or natural persons. Although ABC Bank as a juristic person must always act through
its functionaries (Mrs Kheti), it is the Bank that acquires rights, duties and capacities and not the
functionaries themselves in their personal capacities
(b) Mrs Scott, an expectant woman, is injured in a motor vehicle accident Her child Is
subsequently born with severe brain damage. The accident was caused solely by the
negligence of the driver of the other motor vehicle, and Mr Scott now wishes to institute an
action for pre-natal inures on behalf of the child.
(i) Advise Mr Scott whether he will be able to institute an action on behalf of the child in your
answer, you also have to refer to relevant case law.
(2)
The issue of whether a child has an action for pre-natal injuries he or she suffered as a result of
the wrongful act of a third party first came before the court in Pinchin v Santam Insurance Co
Ltd 963 (2) SA 254 (W). The court held that principles of our law is flexible enough to extend the
nasciturus fiction to the field of delict and that in principle, a child does have an action to recover
damages for pre-natal injuries. This proved to be a controversial decision and most authors
were of the view that it was unnecessary to apply the nasciturus fiction in the field of the law of
delict.
The Supreme Court of Appeal settled the issue In Road Accident Fund vs Mtati 2005 (6) SA 215
(SCA), the court held that it is unnecessary to use the nasciturus fiction to grant a child an
action in respect of prenatal injuries. It held that the ordinary rules of the law of delict should be
used to determine whether the child has a claim.
(ii) Briefly discuss the judgment of the case mentioned in (i) above
(2)
In Road Accident Fund vs Mtati 2005 (6) SA 215 (SCA), the court held that it is unnecessary to
use the nasciturus fiction to grant a child an action in respect of prenatal injuries. It held that the
ordinary rules of the law of delict should be used to determine whether the child has a claim.
The court held that the child’s delictual right of action in respect of his or her pre-natal injuries
becomes “complete” when the child is born alive. As a result of this 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, however, still apply to other areas of the law.
(iii) Would your answer in (i) have been different if this matter went to court ten years
ago? Provide a reason for your answer
(2)
(c) The Choice on Termination of Pregnancy Act 92 of 1996 permits termination of pregnancy
on several grounds Briefly discuss the case in which the constitutionality of this Act was
challenged and indicate what the court held
(3)
In Christian Lawyers' Association of South Africa v The Minister of Health the constitutionality of
the Choice on Termination of Pregnancy Act was challenged. The plaintiffs contented that
human life starts at conception and the Choice on Termination of Pregnancy Act contravenes
section 11 of the Constitution, namely the right to life. The court held that no provision of the
Constitution bestows legal personality or protection on the foetus and that the Constitution does
not qualify a woman's right to make decisions about the reproduction and her right to security in
and control over her body in order to protect the foetus.
(d) Mr Mabusa disappeared six months ago after going fishing on the rocks on a stormy day He
still owes the bank a lot of money, and the bank officials would like to approach the court to
grant an application for an order presuming Mr Mabusa's death Answer the following
questions
(i) Which presumption of death procedure will be applicable to this case?
(1)
(ii) May the bank bring the application for an order presuming Mr Mabusa's death? Provide a
(2)
(iii) Which division of the court should be approached for a presumption of death order?
(1)
(a) Name three attributes or factors which determine a person's legal status in private law
(3)
In private law the most important attributes or factors which determine a person's status are
domicile, birth outside marriage, youth, physical illness or incapacity, mental illness or
incapacity, intoxication, prodigality and insolvency.
(b) Name the four most Important capacities that are traditionally distinguished in South African
law
(4)
 Legal Capacity
 Capacity to act
 Capacity to litigate
 Capacity to be held accountable for crimes and delicts
(c) Explain what is the concept "domicile" entails

(3)
Domicile is the place where a person is legally deemed to be constantly present for the purpose
of exercising his or her rights and fulfilling his or her obligations even in his or her factual
absence
(d) Yolanda is 15 years old She was born in Alexandra, where she stayed with her mother until
last year when her mother passed away. She now stays with her grandmother in Witbank
where she also attends school Where is Yolanda domiciled? Explain with reference to
authority
(4)
most closely connected. Therefore, Yolanda now stays with her grandmother in Witbank and
therefore she is domiciled in Witbank.
(e) Walter and Veronica met eight weeks ago and they entered into a civil marriage last week
Seven months after their marriage, a baby girl, Wendy, is born Walter does not believe that
he is the baby's father Answer the following questions
(i) Explain the maxim "pater est quem nuptiae demonstrant"
(1)
(ii) What is the legal situation with regard to the presumption of paternity in this scenario?
(2)
Nsizwa is liable for the maintenance of Owami. Our law recognises the rebuttable presumption
that a child is the child of the man to whom the mother is married (be it at the time of the child’s
birth, or at his or her conception, or at any intervening time). When a woman who is validly
married gives birth to a child, it is presumed that the woman’s husband (Nsizwa), and not some
third party, is the father of the child and that the child is therefore a child born of a woman who is
party to a marriage or a civil union. The maxim is pater est quem nuptiae demonstrant.
However, this presumption is rebuttable: either of the spouses, the child or any interested party
can prove that the husband is not the father of the child. This can be done by, for example,
proving that the husband is impotent or sterile. The fact that the spouses did not indulge in
sexual intercourse during the period of conception could also be sufficient proof that the
husband is not the father of the child (Heaton pp 56 & 57–58 – also see 8.5.4 below). If Nsizwa
succeeds in proving that he is not Owami’s father, he will not be liable for Owami’s maintenance.
(f) Give the name of the case in which the court authorised DNA tests on skin, blood and
muscle samples of a man who had been killed in a motor vehicle accident
(1)
Ex Parte Emmerson
(g) When considering an application in terms of section 23 of the Children's Act 38 of 2005 for
the assignment of parental responsibilities and rights, the court has to take into account
various factors Name any two factors which the court must take into account
(2)
When considering an application in terms of section 23 of the Children's Act 38 of 205 for the
assignment of parental responsibilities and rights, the court has to take into account various
factors. Name any two factors which the court must take into account.
- the best interest of the child
- the relationship between the applicant and the child
- the degree of commitment the applicant has shown towards the child
- The extent to which the applicant has contributed towards expenses in connection with
the child's birth and maintenance.
- Any other fact that should, in the opinion of the court, be taken into account.
-
(a) Complete the following sentence by filling in the missing words
juristic act even with the assistance of his or her guardian, the guardian an infans cannot
conclude a has to act for the infans and on behalf of the infans. An infans cannot even accept a
donation
(2)
(b) As a rule, a guardian does not incur personal liability in respect of the minor's contract
regardless of whether the guardian assists the minor or acts on the minor's behalf There are,
however, four exceptions to this rule Name these exceptions
(4)
(c) Jerry is 17 years old Without the assistance or consent of his guardian he concludes a
contract with Mr Smith to buy Mr Smith's laptop for R5 000. During the negotiations Jerry
represents himself as a major by producing a forged identity document Jerry pays a deposit
of R500 to Mr Smith who subsequently delvers the laptop to Jerry. Jerry now refuses to pay
the remainder of the amount to Mr Smith on the basis that he is a minor and therefore not
able in terms of the contract
(i) A minor who makes a misrepresentation (Ike Jerry did in this question) commits a delict
and can therefore be held delictually 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?
(3)
The three requirements for liability as a result of a misrepresentation are that the minor made a
misrepresentation regarding his or her majority or capacity to act, the other party to the
contract was induced to enter into the contract by the misrepresentation and the other
party suffered damage as a result of the misrepresentation.
Other important principles are that the minor, in order to be liable, should be old enough to be
reasonably mistaken for a major. The other party is entitled to accept the minor’s statement that
he or she is of age. The other party is under no obligation to enquire into the truth of the minor’s
statement unless he or she has good cause to believe that he or she is dealing with a minor
(ii) Can Jerry recover his deposit? Explain with reference to authority
(2)
A general rule, a minor cannot incur contractual liability if he or she (Thabo) did not have his or
her guardian’s assistance in concluding the contract (contract is not enforceable). In terms of In
terms of Louw v MJ & H Trust (Pty) Ltd, Thabo will not be able to recover the part of the
purchase price he already paid.
However, it is argued that the court erred in its decision (until Edelstein v Edelstein
authoritatively rejected it) and there is a view that Thabo will be able to recover his deposit
with the condictio, because the contract is not enforceable.
(iii) Suppose Jerry concluded the contract with the assistance of his guardian Which
remedy would be available to Jerry to escape liability in terms of the contract?
(1)
Restitutio in integrum
(iv) What are the requirements for the remedy in (iii) above?
(2)
contract on his/her behalf (The contract must be valid). This remedy is also available
where the minor initially contracted without the necessary consent, but the guardian
subsequently ratified the contract.
2. The contract was to the minor’s detriment at the time of conclusion of the contract.
(d) On 6 October Nomsa, a 15-year- old minor, concludes a contract of sale with Mrs Sibanyone
without the assistance of her guardian In terms of the contract Nomsa buys a second-hand
stove from Mrs Sibanyone for R3 000 The actual value of the stove Is R2 500 On 6
November, a month after Mrs Sibanyone delivers the stove to Nomsa, Nomsa decides to
sell the stove for R2 000 Nomsa spends the money as follows R1 000 on clothes, R500 on
alcohol for a party and R500 on food
(i) On which ground will Nomsa be liable to Mrs Sibanyone?
(1)

ought to be liable
The minor can be held liable on the basis of the delict or unjustified enrichment
(ii) Which amount will Mrs Sibanyone be able to recover if she institutes an action on 10
October? Give a reason for your answer
(2)
In arriving at this amount the contract price is ignored; it is the actual value of the asset at the
time of institution of the action that is at issue.
R2500 because that was the actual value of the stove at the time.
(iii) Suppose Mrs Sibanyone waits until 12 November before she institutes an action, which
amount will she be able to claim? Explain your answer
(2)
So, Unjustified enrichment as of 10 October = R2 000 – R500.00 = R1 500
(e) Timothy is 17 years old He works as a security guard in Johannesburg where he shares a
flat with friends Advise him whether it would be possible for him to conclude the following
agreements and provide a reason for every answer
(i) Timothy secretly wants to conclude a customary marriage with Sophie
(2)
Yes, Timothy can conclude a customary marriage with Sophie, if he has the requisite consent
(All the guardians), unless the court orders otherwise.
(ii) Timothy wants to buy condoms

(2)
Yes, Timothy can buy condom. A minor who has turned 12 may independently buy condoms and
receive free condoms on request.
(iii) Timothy wants to make his own will

(2)
Yes, Timothy can make his own will, as a minor who is 14 Years (As from the age of 14 years
minors may witness a will, and once they have turned 16, they may make a will)

(a) Mrs Chetty's estate has been sequestrated by the high court Answer the following questions
(i) Write a brief paragraph on Mrs Chetty's capacity to act
(3)
An insolvent person's such as Mrs Chetty's legal capacity is influenced by the sequestration of
his or her estate. They have limited capacity to act, as an example there are certain offices he or
she cannot hold (i.e. an insolvent person may not be a director of a company or mutual bank or
a trustee). The insolvent may still enter into contracts, provided that he or she does not thereby
purport to dispose of property of the insolvent estate. They also need the trustees consent in
case that they want to enter into a contract which adversely affects are likely to adversely affect
the insolvent estate. The insolvent may sue in his own name without the trustee’s consent.
(ii) Mrs Chetty is arrested for fraud Can she be held accountable for the crime?
(1)
Yes, Mrs Chetty can be held accountable for the crime, Insolvency does not affect the
insolvent's capacity to be held accountable for crimes and delicts. However, if the insolvent
commits a delict after sequestration, the compensation must be paid out of those assets the
insolvent acquired after sequestration that fall outside the insolvent estate
(b) Ntabiseng is 17 years old Consider the following scenarios and indicate what effect each of
these has on Ntabiseng's minority status
(i) She concludes a valid civil marriage with Peter
(1)
Majority, mondig (full capacity to act)
(ii) She divorces Peter

(1)
Majority, mondig (full capacity to act), If the marriage is dissolved by death or divorce
before the person reaches the age of 18 years, his or her minority does not revive
(iii) She enters into a civil union with Jerry

(1)
The Civil Union Act restricts civil unions to persons who have already reached the age of 18
years. Thus, a minor cannot acquire majority status by entering into a civil union.
(c) Briefly discuss the decision in Shange v MEC for Education, Kwazulu-Natal 2012 (2) SA 519
(KZD) with regard to the lowering of the age of majority in the Children’s Act 38 of 2005 and
the effect this has on prescription of a minor's claim
(3)
The court had to consider whether a 15-year-old learner who had been hit with a belt on the
side of his eye by his teacher acted reasonably in waiting more than five years to institute action
against the teacher’s employer. The learner, by then an adult, became aware of the possibility of
a claim by chance. He had initially accepted the teacher’s explanation that it was an accident. A
family friend noticed that he was wearing an eye patch and suggested that he should approach
the Public Protector. An advocate in that office advised him of the possibility of a claim against
the teacher. The judge in the case held that the delay was innocent, saying: “He was a rural
learner who could not reasonably be expected to know that, not only the teacher was his debtor,
but, more importantly, that the [MEC for education] was a joint debtor. Only when he was
informed of this fact did he know the identity of his debtor for the purposes of the Prescription
Act.”
12. OCT/NOV 2015

Question 1
Which one of following complies with the common-law requirements for recognition as a juristic
person?
(1) A partnership
(2) A church
(3) A trust
(4) A bank
Question 2
In which one of the following cases did the court decide that a mother may not enter into
contract on behalf of her unborn child, because legal personality begins at birth and an agent
may not enter into a contract on behalf of a non-existent principal?
(3) Friedman v Glicksman 1996 (1) SA 1134 (W)
(4) Pinchin v Sanlam Insurance Co Ltd 1963 (2) SA 254 (W)
Question 3
Capacity to litigate is
(2) the capacity to be held accountable for crimes and delicts
(3) the capacity to appear in court as a party to a lawsuit
Question 4
In McMillan v McMillan 43 TPD 345 the court held that
(1) a foreign diplomat could acquire a domicile of choice in South Africa while in the service
of a foreign country
(2) public servants and employees of foreign governments could acquire a domicile of
choice in South Africa
(3) a prisoner who had been imprisoned for life automatically acquired a domicile of choice
in prison
(4) foreign military staff could not acquire a domicile of choice in South Africa, however
much they wished to settle here permanently
Question 5
In which case did the court hold that the High Court as upper guardian of minors has an
inherent power to order scientific tests in a paternity dispute f such an order Is in the child's best
interests?
(1) 0 v O 1992 (4) SA 137 (C)
(2) F v L 1987 (4) SA 525 (W)
(3) YM v LB 2010 (6) SA 338 (SCA)
(4) M v R 1989 (1) SA 416 (0)

Question 6
In terms of the Children's Act 38 0f 2005, "contact" refers to
(1) ensuring that the child's best interests Is the paramount concern when any decision that might
affect the child's upbringing is made
(2) maintaining a personal relationship with the child and communicating with him or her on a
regular basis if he or she lives with someone else
(3) administering and safeguarding the child's property and property interests, and assisting or
representing the child in legal matters
(4) guiding and directing the child's education and upbringing in a manner which Is appropriate to
the child's age, maturity and stage of development
Question 7
In terms of section 21(1) of the Children's Act 38 of 2005
rights in respect of his child can acquire parental responsibilities and rights by
concluding a parental responsibilities and rights agreement
rights in respect of his child can acquire these by approaching the high court for an
order granting parental responsibilities and rights
(3) an unmarried biological father acquires full parental responsibilities and rights in
respect of his child if he meets certain requirements
(4) an unmarried biological father acquires full parental responsibilities and rights in respect
of his child if he marries the child's mother
Question 8
From the statements below that deal with the legal status of an infans, choose the correct option
(1) An infans has limited capacity to act
(2) An infans can never be criminally liable
(3) An infans can only conclude a juristic act with the assistance of his or her guardian
(4) An infans is accountable for all delicts committed by him or her where liability is
based on fault
Question 9
Choose the correct option to complete the sentence A guardian may sometimes incur personal
liability. In respect of a minor's contract This will be the case if
(1) the minor is unable to perform
(2) the minor acted as the guardian's agent
(3) the guardian assisted the minor to contract
(4) the guardian is the minor's parent
Question 10
If a guardian ratifies a contract that a minor initially concluded without the requisite consent, the
result is that
(1) the contract remains invalid
(2) the contract has limited validity
(3) the contract is validated with retroactive effect
(4) the contract becomes valid when the minor attains majority
Question 11
In which one of the following cases did the court hold that a minor who had misrepresented
himself as emancipated when he bought a motor cycle from a major without the necessary
assistance could not recover the part of the purchase price, he had already pa1d?
(2) Edelstein v Edelstein 1952 (3) SA 1 (A)
(4) Landman v Mienie 1944 OPD 59
Question 12
From the following options that relate to a minor's capacity, choose the only correct option
(1) A minor who Is over the age of 16 years may be a curator in an insolvent estate
(2) A minor can act as someone's agent without the consent of his or her guardian
(3) A minor over the age of 14 years may be a member of or a depositor with a mutual bank
(4) A minor may only be a director of a company with the written consent of his or her
guardian
Question 13
Which one of the following options cannot terminate minority?
(1) 17-year-old Steven enters into a civil marriage
(2) 16-year-old Jenny enters into a customary marriage
(3) 16-year-old Paul's marriage is dissolved by his wife's death
(4) 17-year-old Andrea enters into a civil union
Question 14
Which one of the following is the curator appointed to look after the mentally ill person's
property?
(1) A curator ad litem
(2) A curator bonis
(3) A curator personae
(4) A curator executrix
Question 15
From the following statements regarding the status of a prodigal, choose the only correct option
(1) An Interdicted prodigal may only be the director of a company with the permission of his
or her curator
(2) An interdicted prodigal has no capacity to act and cannot independently enter into any
juristic acts
(3) An interdicted prodigal may be held liable for crimes and delicts he or she
commits
(4) An interdicted prodigal may not embark on any litigation at all without his or her curator's
consent
Section B
(a) Name the two requirements for the beginning of legal personality
(2)
A natural person's legal personality begins at birth, provided that the following requirements
are met:
1. The birth must be fully completed, that is, the body of the mother and the body of the
child must be completely separated. For birth to be completed it is not required that the
umbilical cord be severed.
2. The child must live after the separation even if only for a short period. A stillborn child or
a child who dies during birth therefore does not acquire legal personality.
(b) The onus of proof for a common-law and a statutory presumption of death application differ
Briefly explain
(2)
(c) Suppose that a court has pronounced a common-law presumption of death Explain the
consequences of such an order on the following Issues
(i) The person's marriage
(1)
(ii) The person's estate
(1)
(d) Nicole s eight months pregnant as a result of being raped She wants to know whether she
will be able to legally terminate her pregnancy Advise her by explaining the legal position to
her and refer to authority
(3)
(e) Sarah Simons and Beth Smith are civil union partners Last week, Beth gave birth to a son,
William, who was conceived as a result of artificial fertilisation Sarah and Beth want to know
under which surname notice of William's birth has to be given to the Director-General of
Home Affairs Advise them in this regard Also provide a reason for your answer
(2) (2)
(f) Fill In the missing words
(i) In terms of the nasciturus rule, the unborn child Is regarded as a legal subject from the
date of his or her conception whenever a situation arises where it would have been to the
advantage of the nasciturus had he or she already been born
(1)
(ii) In terms of the nasciturus fiction, the nasciturus is regarded as having been born at the
time of his or her conception whenever a situation arises where it would have been to the
advantage of the nasciturus had he or she already been born
(1)
(g) Paul died last month in terms of his will, he left his property to his wife, Jenny and his son,
Walter. At the time of Paul's death Jenny was three months pregnant with their daughter,
Andile Would Andile inherit from Paul's estate? Provide a reason for your answer
(2)

(a) Name five attributes or factors which determine a person's legal status in private law
(5)
(b) A mentally incapacitated person cannot obtain a domicile of choice Briefly explain how it is
determined in our law where a mentally incapacitated person is domiciled. In your answer
you have to refer to the relevant Act
(2)
operation of the law, or the domicile of closest connection.
(c) Read the following two scenarios and answer the questions that follow
(i) Jack and Mary are partners in a valid civil union Mary underwent artificial fertilisation
with the sperm of a donor without Jack's consent A baby boy, Peter, is born as a result
of the artificial fertilisation What is Peter's status in terms of section 40(1) of the
Children's Act 38 of 2005? Provide a reason for your answer
(2)
(ii) Sandy Is not a partner in a marriage or a civil union She underwent artificial fertilisation
A baby girl, Lulu, was born as a result of the artificial fertilisation What is Lulu's status?
(2)
(d) Parentage is usually based on the biological fact of being genetically related to the child
However, in terms of section 1(1) of the Children's Act 38 of 2005 three categories of
persons, who are biologically related to a child, are excluded from legally qualifying as
"parent" Name these three categories
(6)
child's mother.
been terminated.
(e) A person who has an interest in the child's care, well-being or development may approach
the High Court in terms of section 24 of the Children's Act 38 of 2005 for an order assigning
guardianship to him or her Name three factors the court must take into account when
considering such an application
(3) (3)
A person who has an interest in the child's care, well-being or development may approach the
High Court in terms of section 24 for an order assigning guardianship to him or her. When
considering the application, the court must take the following factors into account:
(3) Any other fact that should, in the opinion of the court, between into account.

(a) If a minor has performed in terms of an unassisted contract and the contract Is repudiated,
the minor may recover what he or she has performed What remedy for recovery is
available to such a minor, who concluded a contract without the assistance of his or her
guardian, to claim back performance that he or she has already rendered in the following
cases?
(i) The minor's performance consisted of a deposit of R 2000 condictio
(1)
(ii) The minor's performance consisted of a bicycle rei vindicatio
(1)
(b) A minor cannot incur contractual liability without his or her guardian's assistance Name the
forms the guardian's assistance to the minor's contract may take
(3),
(c) A minor who misrepresents himself or herself to be a major and thereby misleads
somebody to enter into a contract could be held liable on the basis of delict What are the
requirements for delictual liability as the basis on which the minor who committed the
misrepresentation is held liable?
(3)
(d) Read the following statement regarding unjustified enrichment.

If a contract, taken as a whole, is to the minor's benefit, the minor is bound by it
(i) Write down the name of the case that this statement is taken from
(1)
Nel v Devine Hall & co
(ii) Write down the name of the case that rejected this view
(1)
(iii) Briefly explain when liability on the ground of unjustified enrichment anises
(3)
Liability on the ground of unjustified enrichment arises if one person obtains a patrimonial
advantage (that is, is enriched - increases the value of his or her estate) at the expense of
another in the absence of a legal ground justifying the enrichment. In such a case the law
obliges the recipient to return to the prejudiced party the amount by which his or her estate has
been and remains enlarged. B thus has a claim against A on the ground of unjustified
enrichment.
(e) Peter, a sixteen-year-old boy, purchased a motorbike with the assistance of his father He
paid R10 000,00 for it A week after he had purchased it, he was involved in an accident as
a result of which the motorbike is now worth 7 000,00 His older sister, who is a law student,
has told him that he can rely on restitutio integrum to escape contractual liability He now
wants to stop payments on the motorbike Answer the following questions
(i) What is restitutio integrum?
(2)
or she contracted with the assistance of his or her guardian (valid contract) and the contract was
prejudicial to the minor at the moment it was made. This remedy restores the parties to a
contract to their previous positions before the agreement.
(ii) What is the purpose of restitutio integrum?

(1)
Restore the previous position of both parties before they entered into the contract
(iii) Will Peter be able to rely on this remedy to escape contractual liability? Explain your
answer
(2)
One of the requirements to apply the remedy of Restitutio in integrum, is that the contract has to
be prejudicial to the minor at the moment it was made. Since the contract to purchase the
motorbike was not prejudicial to Peter, he cannot rely on this remedy.
(f) Sally is thirteen years old While she is on holiday, she develops a very high fever She goes
to the doctor, who does not want to treat her because she is a minor and her parents have
not given permission for the treatment. She approaches you for advice
(i) Explain to Sally what the Children's Act 38 of 2005 provides with regard to consent for
medical treatment of a minor of Sally's age
A minor who is below the age of 12 years may not have medical treatment (same applies
to an operation) without his or her guardian's consent. The guardian's consent to medical
treatment is also needed if the minor has already turned 12 but is immature and does not
have the mental capacity to understand the benefits, risks and social implications of the
treatment.
Section 129 of the Children’s Act 38 of 2005 suggests that a minor who has already turned
12 is sufficiently mature and has the mental capacity to understand the benefits, risks,
social and other implications of the medical treatment, the consent of his or her guardian is
not needed (or the medical treatment of his or her child). However, in terms of consent to
an operation he or she must still be "duly assisted" by his or her guardian.
(3)
(ii) Sally also wants to have an HIV test done while she is at the doctor Explain to her in
which instances a minor may undergo an HIV test
(3)
test.
(g) In terms of the Child Justice Act 75 of 2008 the minimum age for criminal accountability Is
14 years
(1)

(a) Following the lowering of the age of majority from 21 years to 18 years, there was
uncertainty about what effect this lowering of age had on the prescription of a minor's clam
The issue was raised in one of your prescribed cases Provide the name of the case and
indicate, in one sentence, what the court held in this regard
(2)
Shange v MEC for Education, Kwazulu-Natal 2012 (2) SA 519 (KZD), held that the delay was
innocent, saying: “He was a rural learner who could not reasonably be expected to know that,
not only the teacher was his debtor, but, more importantly, that the [MEC for education] was a
joint debtor. Only when he was informed of this fact did he know the identity of his debtor for the
purposes of the Prescription Act.”
(b) Indicate whether the following statements regarding the emancipation of a minor are true or
false
(i) The effect of emancipation is to make a minor a major in the eyes of the law with the
exception that he or she cannot alienate immovable property
(1)
True
(ii) A minor can only be emancipated if his or her parent or guardian expressly grants him or
her emancipation
(1)
False
(c) A mentally ill person has to be represented in legal proceedings by a curator bonis
(1)
(d) Frank has been declared a prodigal He has also decided to leave his wife and wants to
institute divorce proceedings He is unsure about his capacity to litigate Advise him
(1)
An interdicted prodigal may not embark on litigation without his or her curator's consent
because, through such litigation, he or she might incur liability for costs which would lead to a
disposition of his or her estate and would therefore be in breach of the interdict prohibiting him
or her from administering his or her estate. An interdicted prodigal may, however, sue
unassisted for divorce, and for an order to have his or her curator dismissed or the curatorship
set aside.
(e) Write a short paragraph on the insolvent's capacity to Litigate

(4) (4)
The insolvent does not lose all capacity to litigate when his or her estate is sequestrated. Upon
sequestration, all civil proceedings by or against the insolvent are stayed until a trustee is
appointed to act on behalf of the insolvent estate. For the rest, the insolvent retains locus standi
in iudicio. The insolvent may, in particular, in his or her own name and without the trustee's
consent or cooperation, sue or be sued in respect of:
(1) Any matter relating to his or her status or any right in so far as it does not affect the
insolvent estate.
(2) Any claims arising from contracts concluded after sequestration that are not detrimental
to the insolvent estate.
(3) Any claims to recover a pension to which he or she is entitled.
(4) Actions for compensation in respect of defamation or personal injury he or she suffered.
The insolvent must, however, have the court's consent to institute an action against the
trustee of the insolvent estate on the ground of malicious prosecution or defamation.
(5) Remuneration for work done or professional services rendered by the insolvent or on his
or her behalf after sequestration.
(6) Actions against him or her for any delict he or she committed after sequestration.
(7) Actions to recover property or institute a claim in favour of the insolvent estate should
the trustee refuse, neglect or decline to do so.
(8) Actions against the trustee of the insolvent estate for maladministration or improper
disposal of assets of the insolvent estate or the improper recognition of obligations to the
detriment of the insolvent estate.
If the insolvent embarks upon unnecessary litigation, the court may order the insolvent to
provide security for his or her opponent's costs before proceeding. However, the mere fact
that someone is insolvent does not warrant an order for security for costs against him or her.
13. MAY/JUNE 2015

Question 1
(1) Indicate which one of the following is recognised as a common law juristic person In our law
(1) a partnership
(2) a church
(3) a trust
(4) a bank
Question 2
(3) a child’s claim for pre-natal injuries
Question 3
In which one of the following cases did the court hold that a mother may not enter Into a
contract on behalf of her unborn child, because legal personality only begins at birth and an
agent may not enter into a contract on behalf of a non-existent principle?
(3) Friedman v Glicksman 1996 (1) SA 1134 (W)
(4) Pinchin v Sanlam Insurance Co Ltd 1963 (2) SA 254 (W)
Question 4
Indicate which one of the following statements regarding presumption of death Is correct:
(1) An application for a presumption of death order must be brought in a court in the area
where the missing person was last seen
(2) If a common law presumption of death is expressed the court will also make an order for
the dissolution of the missing person's marriage
(3) Once the court has pronounced a presumption of death it means that there is an
irrebuttable presumption that the missing person is dead
(4) Any interested party, for example a spouse, can bring an application for a
common law presumption of death order
Question 5
Legal capacity Is
(2) the capacity to be accountable for delicts
(4) the capacity to appear as a party to a lawsuit
Question 6
Anna, a twenty-one-year-old woman, is mentally incapacitated Where will she be domiciled in
terms of the Domicile Act 3 of 19922
(1) She will be domiciled at the home of one or both her parents
(2) She will be domiciled at the place she is most closely connected to
(3) She will be domiciled at the place where she chooses to reside
(4) She will be domiciled at the home of her curator ad litem
Question 7
In terms of section 21(1) of the Children’s Act 38 of 2005 an unmarried biological father
automatically acquires full responsibilities and rights in respect of his child if certain
requirements are met Which one of the following Is not one of those requirements?
(1) He lives with the child's mother in a permanent life partnership when the child Is born
(2) He consents or successfully applies to be identified as the child's biological father
(3) He contributes or attempts in good faith to contribute to the upbringing and maintenance
of the child
(4) He consents to enter into a civil union with the child's mother once the child Is
born
Question 8
Indicate the correct option in terms of section 1(2) of the Intestate Succession Act 81 of1987
(1) a child born of unmarred parents cannot inherit intestate from his or her father
(2) a child born of unmarried parents cannot inherit intestate from his or her mother
(3) a child born of unmarried parents can inherit intestate from both his or her mother
and father
(4) neither an unmarried father nor an unmarried mother can inherit intestate from his or her
child
Question 9
An infans can be defined as
Question 10
Thabo is 17 years old with the assistance of his father he concludes a contract of sale with
Tommy to buy a scooter for R15 000 It later turns out that it is a second-hand scooter. The
actual value of the scooter is only R10 000 Which one of the following remedies is available to
Thabo?
(1) Rei vindicatio
(3) Condictio
Question 11
(1) If a minor concludes a contract with the consent of his or her guardian, the
incurs personal liability for the minor's contract
(4) If a minor's guardian guarantees performance by the minor, the guardian Incurs personal
liability for the minor's contract
Question 12
Section 130 of the Children's Act 38 of 2005 contains rules that apply to an HIV test on a minor
Which one of the following is not one of the rules contained in this section?
(1) If the test is in the minor's best interests and the necessary consent has been given for
the test
(2) If the test is necessary to establish whether a health worker may have contracted HIV
due to contact in the course of a medical procedure with any substance from the minor's
body that may transmit HIV
(3) If any other person may have contracted HIV due to contact with a substance from the
minor's body that may transmit HIV, and a court has authorised the test
(4) If the minor Is pregnant as a result of rape or incest and the minor consents to the test
and the court has authorised the test
Question 13
Minority cannot be ended by
(1) entering into a valid civil marriage
(3) attaining the age of 18 years
(4) entering into a civil union
Question 14
Billy has been declared mentally ill During a lucid Interval he concludes a contract with Ben This
contract is
(1) voidable at Billy's choice
(2) voidable at Ben's choice
(3) void and unenforceable
(4) valid and enforceable
Question 15
A person with normal mental ability who squanders his or her assets in an irresponsible way Is
(1) an insolvent person
(2) a minor
(3) an intoxicated person
(4) a prodigal
Section B
(a)
(i) What is the period prescribed by the Births and Deaths Registration Act 51 of 1992 within
which the Director-General of Home Affairs must be notified of the birth of every child who
was born alive?
(1)
(ii) Who has to give notice of the birth of an abandoned child?

(2)
In the case of an abandoned child, notice is given, after an enquiry has been undertaken in
terms of the Children's Act 38 0f 2005, by the social worker involved in the enquiry or an
authorised officer. The same applies in respect of notice of the birth of an orphan whose birth
has not already been registered.
(iii) Grace and Frank Blake were married A daughter, Cynthia Blake, who is now six years
old, was born from the marriage Grace and Frank recently got divorced Grace plans to
marry Bran Steyn She also wants to change her surname to Steyn She wants to change
Cynthia's surname to correspond with her new surname Grace approaches you for
advice Advise her on the procedure she has to follow to change Cynthia's surname to
Steyn
(4)
Grace needs to follow application procedures to change Cynthia’s surname. As mentioned
above the general rule is that Grace needs the written consent of Cynthia’s father, Frank, as
well Brian Steyn, the new husband, unless the court dispenses with the consent
(b) Name the two requirements that have to be met for the nasciturus fiction to come into
operation
(2)
(c) In Chisholm v East Rand Proprietary Mines Ltd It was held that a child whose father was
killed prior to his or her birth as a result of someone's delict has a dependant's action for
damages for loss of support against the person who committed the delict
(1)
(d) In terms of the Choice on Termination of Pregnancy Act 92 of 1996 a pregnancy may under
circumstances
(3)
The Choice on Termination of Pregnancy Act 92 of 1996 states that after 20th week of the
gestation period a pregnancy may be terminated only if a medical practitioner, after consultation
with another medical practitioner or a registered midwife who has undergone the prescribed
training course, is of the opinion that the continued pregnancy will do any of the following:
(e) In private law, proof of death is important for two reasons Name these two reasons
(2)
Proof of death is important for two reasons
 Deceased's estate may be administered and distributed
 The surviving spouse or civil union partner may enter into a new marriage or civil union.

(a) The Domicile Act 3 of 1992 recognises two formal requirements for acquiring a domicile of
choice Name them and briefly explain what each means
(4)
place.
particular place.
(b)(b)
(i) Anna and Gloria, who entered into a valid civil union two years ago, have just become the
parents of a baby boy whom they named Romeo. Romeo was born as a result of the
artificial fertilisation of Anna Gloria did not consent to the artificial fertilisation of Anna
Explain Romeo's status and give a reason for your answer
(2)
Romeo is considered a child born of unmarried parents. The child is a child born of married
parents only if both spouses or civil union partners consented to the artificial fertilisation. Thus,
although Anna and Gloria were in a civil union when Romeo was conceived, Gloria did not
consent to the artificial fertilisation
(ii) Would your answer in (i) above have been any different if all the parties consented to the
artificial insemination? Give a reason for your answer
(2)
Yes, If donor sperm and/or a donated ovum was used for the artificial fertilisation of a woman
who is married or a party to a civil union, the child is a child born of married parents only if both
spouses or civil union partners consented to the artificial fertilisation, consent is presumed to
have been given, anyone who alleges that it was absent bears the onus of proof.
(c) In terms of our common law, both unmarried parents have a duty to support their child What
is the legal position if nether parent can support the child? In your answer you have to refer
to case law
(5) (5)
(d) Explain the meaning of the maxim pater est quem nuptiae demonstrant
(1)
(e) The names of three court cases (dealing with blood tests) are given below Write the name of
the court case that offers authority for the statement in the first column, on the dotted line in
the second column
(6) (6)
SVL
Seetal v Pravitha
YM v LB
Statement Case
The court held that the High Court as YM v LB
upper guardian of all minors has an
Inherent power to order blood or DNA tests
f there IS a dispute regarding paternity and
it is in the child's best Interests
The court held that it does not have the S v L
power to interfere with the decision of a
child's parents not to submit the child to
blood tests The court accordingly refused
to order a blood test against the wishes of
the child's mother
The court declined to order blood tests, Seetal v Pravitha

since the blood test that was sought could
have disproved the paternity of the
mother's husband, with the result that the
child would have been a child of unmarried
parents Such an order would deprive the
child of his right to claim maintenance from
his mother's husband and it would not be in
the interest of the child

(a)
(i) Explain how the capacity to act of an differs from the capacity to act of a minor infans
(2)
An infant has no capacity to act and cannot conclude any juristic act where as a minor has
limited capacity to act
(ii) Explain how the capacity to litigate of an infans differs from the capacity to litigate of a
minor
(5)
An infant does not have the capacity to litigate and cannot be a party to a lawsuit even if
assisted by his or her guardian. The guardian must litigate on the infant’s behalf. On the other
hand, a minor has limited capacity to litigate. The minor’s guardian may sue or be sued in his or
her own name assisted by the guardian.
(b) What remedy is available to a minor who has concluded a contract without the assistance of
his or her guardian to claim back performance that he or she has already rendered in the
following cases?
(i) If the minor's performance consisted of money condictio
(ii) If the minor's performance consisted of something other than money rei vindicatio
(2)
(c) Suppose that a minor concluded a contract with the assistance of his or her guardian and
the contract was prejudicial to the minor when it was made
(i) What remedy can the minor use to escape contractual liability?
(1)
or she contracted with the assistance of his or her guardian (or the guardian contracted on his
or her behalf) and the contract was prejudicial to the minor at the moment it was made. This
(ii) List the two requirements for the application of the remedy in (i) above
(2)
a. The minor was assisted by his/her guardians or his/her guardian entered into the
b. The contract was to the minor’s detriment at the time of conclusion of the
contract. This remedy is also available where the minor initially contracted
without the necessary consent, but the guardian subsequently ratified the
contract.
(d) Freddy, a 16-year-old minor, concludes a contract of sale with David Smith, a mayor, without
the assistance of his guardian In terms of the contract, David Smith sells a bicycle to Freddy
for R6 000 The actual value of the bicycle at the time of conclusion of the contract is R5 000
On 2 May, a month after delivery of the bicycle, Freddy sells the bicycle for R4 000 He
spends the R4 000 as follows R 1 000 on liquor and other refreshments for a party (these
have already been consumed), and the remaining R3 000 on food and clothes Answer the
following questions
(i) Indicate what amount David Smith will be able to claim from Freddy on the ground of
unjustified enrichment if the action was instituted on 5 June Provide a reason for your
answer
(2)
So, Unjustified enrichment=
R4 000 – R1 000 = R3 000
(ii) Suppose David Smith instituted action against Freddy on 1 May What amount would
David Smith be able to claim from Freddy on the ground of unjustified enrichment?
(2)
R5000 this is the value of the bicycle at that time.
(iii) Use the same facts as in (i) above Suppose Freddy brought David Smith under the false
impression that he is 18 years old by producing a forged identity document On which
ground would Freddy be liable? Also explain which remedy would be available to David
Smith under these circumstances
(4)
identity document. David Smith was clearly misled by this misrepresentation and induced to
enter into the contract, and he acted to his detriment (he suffered a loss). Since there is no
indication in the set of facts that David Smith had good reason to believe that he was dealing
with a minor, David Smith was entitled to accept Freddy’s statement that he was of age.

Freddy would thus be liable to David Smith for delictual damages on the ground of his
misrepresentation.
(iv) Suppose that David Smith was not fooled by Freddy's attempt to pass as a minor, as it is
obvious to him that Freddy s a minor Would Freddy still be able to David Smith? Discuss
(2)
enrichment.
David Smith was not induced to enter into the contract by Freddy’s misrepresentation. Freddy
would thus not be delictually liable to David Smith on the ground of the misrepresentation.
(e) Write down the minimum age for a minor to perform the following functions
(i) The age at which a minor may witness a will
(1)
14 years
(ii) The age at which a minor may make his or her own will
(1)
16 years
(iii) The age at which a minor may independently obtain contraceptives

(1)
12 years

(a) Briefly discuss the influence of mental illness on a person's legal status
(6)
The capacity to enter into legal transactions and to litigate independently is very closely related
to a person's mental condition. For this reason, the law precludes a person from participating in
legal interaction independently if he or she is mentally ill to such a degree that he or she cannot
understand the nature, purport and consequences of his or her acts. The law attaches no
consequences whatsoever person’s expressions of will.
A mentally ill person has no capacity to act. He or she cannot enter into legal transactions or
litigate even with the assistance his or her curator. The curator must conclude transactions and
sue on behalf of the mentally ill person. Any transaction a mentally ill person enters into is void
and cannot be rectified. However, a juristic act of a mentally ill person performs during a lucid
(b) Compare the legal capacity of a prodigal with the legal capacity of an insolvent
(4)
14. OCT/NOV 2014

Question 1
In which one of the following cases did the court decide that an action for prenatal Injures
should be based on the law of delict?
(3) Pinchin v Santam Insurance Co 1963 (2) SA 254 (W)
(4) Chisholm v East Rand Proprietary Mmes Ltd 1909 TH 297
Question 2
In Christian Lawyers Association of South Africa v The Minister of Health 1998 (4) SA 1113 (T) it
was held that ...
(1) no provision of the Constitution bestows legal personality or protection on a
foetus
(2) for purposes of the Inquests Act the word "person" does not include an unborn child
(3) an unborn child cannot have right s that can be enforced on his or her behalf before he
or she is born alive
(4) a mother's agreement to waive her unborn child's right to claim maintenance Is contrary
to good morals
Question 3
Subject to specific requirements, the Sterilisation Act 44 of 1998 permits sterilisation of a person
who is mentally disabled Which one of the following is not one of these requirements?
(1) The person has to be mentally disabled to such an extent that he or she is incapable of
making his or her own decision about contraception or sterilisation
fulfilling the parental responsibilities associated with giving birth.
developing mentally to a sufficient degree to make an informed decision about
contraception or sterilisation
(4) The person has to be mentally disabled to such an extent that he or she is Incapable of
understanding a clear explanation and description of the proposed plan of the
sterilisation
Question 4
Indicate which one of the following statements regarding presumption of death is correct
(1) Once the court has pronounced a presumption of death t means that there is an
irrebuttable presumption that the person is dead.
(2) A statutory presumption of death can only be ordered if the judicial officer is certain on a
preponderance of probabilities that the person is dead.
(3) If a common-law presumption of death is expressed, the result is that it automatically
dissolves the marriage of the surviving spouse.
(4) The court may appoint a curator bonis to administer a missing person's affairs
without pronouncing a presumption of death
Question 5
Choose the correct answer A mentally incapacitated person is domiciled at
(1) the place where his or her curator is domiciled
(2) the place where his or her guardian is domiciled
(3) the place which he or she chooses as a domicile
(4) the place with which he or she is most closely connected
Question 6
Indicate which one of the following cannot be used by a man to rebut a presumption of paternity:
(1) He can provide proof that he is sterile
(2) He can provide proof that he is impotent
(3) He can provide proof that he used contraceptives during sex.
(4) He can provide proof that he was overseas at the time of the child's conception
Question 7
In which one of the following decisions did the court decide that it has an inherent power to
compel a mother to undergo blood tests in order to determine a child's paternity?
(1) O v O 1992 (4) SA 137 (C)
(2) Neil v Neil 1990 (3) SA 889 (T)
(3) S v L 1992 (3) SA 713 (E)
(4) M v R 1989 (1) SA 416 (0)
Question 8
Choose the correct answer. The consent of the biological father of a child may be dispensed
with in the case of adoption of a child if
(1) the court suspects that the child was conceived as a result of rape or assault of the
mother
(2) the child was conceived as a result of incest
(3) the father does not pay maintenance for the child
(4) the mother signs an affidavit which states that the father is not involved in the child's life
Question 9
Choose the correct answer. In terms of section 19 of the Children's Act 38 of 2005, the
biological mother of a child acquires full parental responsibilities and rights in respect of her
child as soon as she gives birth to the child, unless
(1) she is unmarred
(2) she is married
(3) she is the child's surrogate mother
(4) she cannot afford to support the child
Question 10
Indicate which one of the following statements is incorrect:
(1) If a minor concluded a contract with the consent of his or her guardian, the
(2) If a minor's guardian bound himself or herself as surety for the minor, the guardian incurs
(3) If a minor concluded a contract as his or her guardian's agent, the guardian Incurs
(4) If a minor's guardian guaranteed performance by the minor, the guardian incurs personal
Question 11
Ntabseng is 17 years old Which one of the following agreements can Ntabseng validly conclude
with Bongani (aged 25) without Ntabiseng's guardian's assistance?
(1) An agreement in terms of which Ntabiseng transfers a real right to Bongani
(2) An agreement in terms of which Ntabiseng pays her debt to Bongani
(3) An agreement in terms of which Ntabiseng's debt to Bongani is extinguished
(4) An agreement in terms of which Bongani 's debt to Ntabiseng is extinguished
Question 12
Tommy, who is 15 years old, concludes a contract of sale with Mr Mokoena, a major, without the
assistance of his legal guardian In terms of the contract, Mr Mokoena sells Tommy a motorcycle
for R6 000 The actual value of the motorcycle at the time of conclusion of the contract is R5 000
On 20 March, a month after delivery of the motorcycle, Tommy sells the motorcycle for R3 000
He spends the R3 000 as follows R1 000 on liquor and other refreshments for a party (these
have already been consumed), and the remaining R2 000 to pay for his accommodation On 5
April, Mr Mokoena institutes action against Tommy Indicate which amount Mr Mokoena will be
able to claim from Tommy on the ground of unjustified enrichment
(1) R1 000
(2) R2 000
(3) RS 000
(4) R6 000
Question 13
Use the same facts as in question (12) directly above. The only difference is the date when
action is instituted. The action is instituted on 5 March Indicate which amount Mr Mokoena will
be able to claim from Tommy on the ground of unjustified enrichment
(1) R1 000
(2) R2 000
(3) R5 000
(4) R6 000
Question 14
The age of majority in South Africa is fixed by statute as
(1) 18 years
(2) 17 years
(3) 16 years
(4) 21 years
Question 15
Gavin has been declared mentally ill During a lucid interval, he concludes a contract with Ben
This contract is
(1) void
(2) valid
(3) voidable at Gavin's choice
(4) voidable at Ben's choice
Section B
(a) Briefly indicate when a natural person's legal personality begins, and what the requirements
are for the beginning of legal personality
(3)
Legal personality begins at birth. For a child to be recognised as a legal person, the birth must
be fully completed, that is, the body of the mother and the body of the child must be completely
separated. For birth to be completed it is not required that the umbilical cord be severed. The
child must live after the separation even if only for a short period. Legal personality is not
conferred on a stillborn foetus or a foetus which dies during birth.
(b) Please answer the following questions that relate to registrations of birth
(i) Ronald and Marcia are married to each other Their daughter, Zelda, was born last week
Who is responsible to give notice of Zelda's birth to the Director-General of Home Affairs?
Also explain who has to give notice of the birth if the responsible person(s) is not able to
give notice
(2)
within 30 days of the child's birth. Where possible, both parents (Ronald and Marcia) must give
notice. If parents are deceased, notice must be given by the child's next-of-kin or legal guardian.
(ii) Chloe is nineteen years old. She does not Ike her surname. She approaches you for
advice on the following
1) She wants to know whether she may apply to have her surname changed Explain to her
what the legal position is
(2)
The surname of any person may be changed for good and sufficient reason. In the case of an
adult such as Chloe, the person personally makes the application.
2) Chloe wants to change her name to Chloe X She wants to know from you whether she
may do that Also provide a reason for your answer.
(2)
Any person's forename may also be changed. The Act does not stipulate a ground on which the
application for a change of forename must be made. In the case of an adult such as Chloe, the
person personally makes the application.
(c) The protection of the interests of the unborn child gives rise to the question of whether our
law recognises an unborn child as a legal subject in certain circumstances In this regard
there are two opinions Some jurists prefer to view the protection of the nasciturus in terms of
a fiction, while others maintain that the protection afforded to the unborn child is based on
the nasciturus rule. Explain the difference between these two views.
(2)
 In terms of the nasciturus rule, if a situation arises where it would have been to the
nasciturus’ advantage had he or she already been born, all rights that are conferred upon
people who have already been born alive are also conferred on the unborn child. In other
words, in terms of the rule legal personality begins at conception (not at birth) when this
benefits the nasciturus.
 According to the nasciturus fiction, the nasciturus is regarded as having been born at the
time of his or her conception if a situation arises where it would have been to his or her
advantage had he or she already been born. In other words, although protection is granted
to the unborn child, legal personality still begins at birth.
(d) Kevin and his wife Annie were married for 34 years They lived in Johannesburg and had one
child, Oliver. In 2001, when Kevin was 71 years old, Annie died Kevin told Oliver that he
does not want to live without Annie. Six months after Annie's death, Kevin disappeared, and
he has not been seen or heard of since. Oliver, who Ives in Cape Town, now wishes to apply
for a common-law presumption of death with regard to Kevin Advise Oliver on the following
(i) Who may approach the court to grant a presumption of death order?
(1)
(ii) Does the Western Cape high court have jurisdiction to hear the application? Provide a
(2)
(iii) Suppose that the presumption of death is granted by the court Oliver now wants to know
what happens to Kevin's estate
(1)
(a) Indicate to what extent the following persons have capacity to act
(i) Sylva, who is four years old:
(1)
No capacity to act
(ii) Larry, who is 20 years old:
(1)
Full capacity to act
(iii) Candice, who is 30 years old and mentally ill

(1)
Limited capacity to act
(iv) Colin, who is fourteen years old

(1)
Limited capacity to act
(b) John was born in South Africa He also got married in South Africa to Betty, who was born
In Australia They did not conclude an antenuptial contract before entering into the marriage
Five years later they moved to Australia. They lived there for 20 years until John died
intestate a month ago Determine the applicable lex domcilli in the following situations, and
provide a reason for each answer
(i) Which country's matrimonial property system applies to John and Betty's marriage?
(2)
In terms of section 1(1) of the Domicile Act 3 of 1992, Everyone who is of or over the age of 18
or under the age of 18 years who legally has the status of a major, who is competent to acquire
a domicile of choice (unless they lack the mental capacity to make a rational choice). While
Section 3(1) of the Domicile Act, no one loses his or her domicile until he or she has acquired
another domicile. While Section 1(2) of the Act provides a domicile of choice is acquired by a
person when (1) He is lawfully present at a particular place (2) Has the intention to settle there
for an indefinite period.
Since John is capable of domicile of choice, is lawfully present and has had the intention of
staying in Australia, he thus has acquired Australia has his domicile of choice. matrimonial
property system applies
(ii) John's estate now has to be administered Which country's intestate succession laws will
determine how John's movable property will devolve?
(2)
(c) Patrick and Sharon, both unmarred, lived together in a permanent life partnership for six
years While they were living together, a daughter, Lillian, who is now one year old, was
born. Patrick is named on Lillian's birth certificate as Lillian's father and has been
contributing to Lillian's upbringing and maintenance. Patrick and Sharon recently broke up
and Sharon and Lillian moved out of the house they shared with Patrick Sharon
approaches you for legal advice on the following
(i) Does Patrick have any parental responsibilities and rights in respect of Lillian? Advise
Sharon with reference to authority
(6)
the Children's Act which replaced the common-law that denied unmarried fathers’ inherent
In terms of section 21(1)(a) of the Children's Act Patrick indeed has full parental
responsibilities and rights in respect of Lillian because he lived with Sharon, Lillian’s mother in a
permanent life partnership when Lillian was born. In terms of section 21(1) (b), he can acquire
provided that he:
(1) consents or successfully applies to be identified as the child's father or pays
damages in terms of customary law
(2) contributes or has attempted in good faith to contribute to the child's upbringing for a
reasonable period
(3) contributes or has attempted in good faith to contribute towards expenses relating to
the child's maintenance for a reasonable period.
(ii) Who has the duty to support the child (pay maintenance) in the case of a child born of
unmarred parents?
(1)
passes to the child's grandparents.
(iii) Who would be responsible for Lillian's maintenance f both Sharon and Patrick lost their jobs
and consequently could not afford to support Lillian? Advise Sharon with reference to
authority (case law).
(2)
(iv) What is the position with regard to his duty of support if Patrick pays maintenance, but he
dies when Lillian is four years old?
(1)
If an unmarried parent dies, his or her estate is responsible for the child's maintenance. Lillian
can inherit from Patrick regardless of the fact that she is a child born of unmarried parents.
Patrick’s estate is responsible for the maintenance of Lillian
(d) Name two ways in which a child born of unmarried parents can acquire the status of a child
born of married parents
(2)
 by the subsequent marriage or civil union between the child’s parents
 by adoption

(a) Section 12 of the Children's Act 38 of 2005 affords every child the right not to be subjected to
social, cultural and religious practices which are detrimental to his or her well-being
(1)
(b) Briefly compare the capacity to act of an infans to the capacity to act of a minor
(2)
and 18 years). An infans has no capacity to act and cannot conclude any juristic act.
(c) Does an infans have the capacity to incur delictual and criminal liability? Briefly explain
(3)
Since an infans is completely unaccountable in law, he or she can never be criminally liable. Nor
can an infans be delictually liable where liability is based on fault. In both crimes and delict,
FAULT (he or she must have acted intentionally or negligently). The capacity to be at fault is
known as accountability. A person can be accountable only if he or she can differentiate
between right and wrong and act accordingly. Since an infans does not have this ability, he or
she is not accountable. The infans does not have the capacity to be at fault and can thus not
incur delictual or criminal liability An infans may, however, be liable for delicts that are not based
on fault.
(d) The following questions all relate to capacity to enter into a contract Read them carefully and
then answer the questions
i. Bran is seventeen years old. His father, Colin, is his guardian. Colin does not want to buy Bran a
motorcycle, because he believes that it is dangerous Bran saves his pocket money and,
without telling Colin, buys himself a motorcycle ls this a valid contract? Provide a reason for
your answer.
(2)
Invalid contract, a minor can incur contractual liability only if he or she is assisted by his or
her guardian when the contract is concluded. Bran cannot incur contractual liability if the
contract of sale imposes duties upon him
ii. Joyce is five years old While out shopping with her mother, Joyce uses her birthday money to
buy a bicycle ls this a valid contract? Provide a reason for your answer
(2)
iii.iii.
a. It is generally agreed that a minor who misrepresents himself or herself to be a mayor,
ought to be liable There are two possible grounds on which the minor could be held
liable Name these grounds
(2)
An adult who has entered into a contract with an unassisted minor can rely on certain remedies,
namely, delict or unjustified enrichment
b. In Louw v MJ & H Trust (Pty) Ltd 1975 (4) SA 268 (T) a minor misrepresented himself
as emancipated when he bought a motorcycle, and it was held that he could not recover
the part of the purchase price he had already pad
(1)
iv. Billy, a thirteen-year-old boy, inherits a car from his grandmother. Because it will be many years
before he can apply for a license to drive the car, he decides to sell rt Billy, with the assistance
of his father, sells the car to a car dealership for R10 000,00 The following week they discover
that the car is actually worth R20 000,00. Billy now wants to know if he can get the car back
from the dealer to sell rt for more money Advise him and provide reasons for your answer
(3)
Billy can rely on Restitutio in integrum as, Restitutio in integrum is an extraordinary legal remedy
whereby a minor can escape liability if he or she contracted with the assistance of his or her
guardian (valid contract) and the contract was prejudicial to the minor at the moment it was
made. This remedy restores the parties to a contract to their previous positions before the
agreement.
v. Jenny, a seventeen-year-old girl, buys a ring for R5 000,00 from a jeweller's shop She pays a
deposit of R500,00 She agrees to pay off the rest of the purchase price in instalments and
goes home with the ring. Her friend then tells her that because she is a minor, she does not
have the capacity to enter into a contract without the assistance of her guardian Jenny now
refuses to pay the rest of the money she owes on the ring and also refuses to give the ring
back. The jeweller approaches you for advice. Please explain to him what the legal position is,
and provide reasons for your answer
(3)
guardian’s assistance in concluding the contract.
An adult who enters into a contract with a minor is, however, obliged to render performance. An
adult who has entered into a contract with an unassisted minor can rely on certain remedies,
namely, delict or unjustified enrichment. A minor who misrepresents himself or herself to be a
major, to be emancipated, or to have the necessary consent, and who thereby misleads
somebody to enter into a contract with him or her, ought to be liable,
Jenny may avoid her obligations and may use condictio to claim back the money she paid
because she had no assistance from the guardian. (if she did misrepresent herself)
(e) Can a minor acquire majority status by entering into a civil union? Provide a reason for your
answer
(2)
(f) A minor of 12 years or older, who is sufficiently mature and has the mental capacity to
understand the benefits, risks, social and other implications of the treatment, may independently
consent to medical treatment of himself or herself.
(1)
(g) Name the circumstances when a child may undergo an HIV test
(3)
test.

(a) Briefly discuss the influence of alcohol on a person's capacity to act. In your answer you
have to distinguish between different degrees of intoxication.
(4)
(b) Once someone has been declared a prodigal his or her legal capacity, capacity to act and
capacity to litigate are restricted It has been submitted that the limitations placed on
interdicted prodigals are unconstitutional Write a paragraph about the constitutional
implications of these limitations
(3)
(c) An insolvent may only enter into contracts under certain circumstances If the Insolvent
enters into a contract in breach of these provisions, the contract Is nevertheless valid rf the
following requirements are met
(3)
15. MAY/JUNE 2014

Question 1
Mr and Mrs Maseko, who are both fans of the James Bond movies, have to register the birth of
their son with the Director-General of Home Affairs Which one of the following examples would
be valid in terms of the Births and Deaths Registration Act 51 0f 1992?
(1) JB 007
(2) James Maseko
(3) James M
(4) 007 Maseko
Question 2
In which one of the following cases did the court decide that an action for prenatal Injuries
should be based on the law of delict?
(3) Pinchin v Santam Insurance Co 1963 (2) SA 254 (W)
(4) Chisholm v East Rand Proprietary Mines Ltd 1909 TH 297
Question 3
Indicate which one of the following statements with regard to proof of death Is incorrect
(1) A presumption of death may only be granted after an absence of at least seven
years
(2) Once death has been proved, the deceased's estate can be administered and
distributed
(3) If the death was due to unnatural causes, an inquest has to be held
(4) The state takes the initiative in a statutory presumption of death
Question 4
(1) Commonentes refer to people who died together
(2) Commonentes refer to people who were in the same accident
(3) Commonentes refer to the sequence in which people died
(4) Commonentes refer to the time when an accident occurred
Question 5
Amy s 25 years old and mentally incapacitated She was born in East London and lived there
with her parents until they divorced eight years ago After the divorce, her mother moved to Port
Elizabeth and her father moved to Cape Town Amy has been living with her sister in Kimberley
for the past eight years Amy s domiciled at
(1) Kimberley
(2) Cape Town
(3) Port Elizabeth
(4) East London
Question 6
In terms of the Children's Act 38 of 2005, guardianship refers to
(1) maintaining a personal relationship with the child and communicating with him or her
(2) administering and safeguarding the child's property and his or her property
Interests
(3) providing the child with a suitable place to live and living conditions that are conducive to
his or her health
(4) protecting the child from maltreatment, abuse, neglect, degradation and any other
physical and moral harm
Question 7
In which one of the following examples would the child be considered a child born of unmarried
parents?
(1) Jenny and Sandy, two women, are partners in a same-sex civil union entered into in
terms of the civil Union Act Jenny is artificially fertilised A daughter, Kelly is born as a
result
(2) Anna and John are civil union partners Anna is artificially fertilised with John's semen A
son, Mark, is born as a result
(3) Tina's husband, Tom, is sterile They ask their good friend, Andrew, to donate sperm and
Tina’s artificially fertilised with Andrew's semen A daughter, Ellen, is born as a result
(4) Cecile is married to Calvin They have been trying to conceive a baby for a few
years Without telling Calvin, Cecile visits a sperm bank where she Is artificially
fertilised A son, Michael, is born as a result
Question 8
Which one of the following acts grants an unmarried biological father automatic parental
responsibilities and rights in respect of his child if he lives with the child's mother in a permanent
life partnership when the child is born?
(1) Natural Fathers of Children Born out of Wedlock Act 86 of 1997
(2) Constitution of the Republic of South Africa, 1996
(3) Children's Act 38 of 2005
(4) Children's Status Act 82 of 1987
Question 9
Which one of the following statements regarding the legal status of an infans is true?
(1) An infans is a child below the age of puberty
(2) An infans cannot conclude any juristic act
(3) An infans is a mentally ill child
(4) An infans does not have legal capacity
Question 10
(1) If a minor concludes a contract with the consent of his or her guardian, the guardian
(4) If a minor's guardian guarantees performance by the minor, the guardian Incurs personal
Question 11
(1) enter into a life insurance policy
Question 12
Themba, a 15-year-old minor, concludes a contract of sale with Mr Mokoena, an adult, without
the assistance of his legal guardian In terms of the contract, Mr Mokoena sells Themba a
motorcycle for R6 000 The actual value of the motorcycle at the time of conclusion of the
contract is R5 000 On 20 March, a month after delivery of the motorcycle to Themba, he sells
the motorcycle for R3 000 He spends the R3 000 as follows R1 000 on liquor and other
refreshments for a party (these have already been consumed), and the remaining R2 000 on
paying for his accommodation On 5 April, Mr Mokoena institutes action against Themba Indicate
which amount Mr Mokoena will be able to claim from Themba on the ground of unjustified
enrichment
(1) R1 000
(2) R2 000
(3) R5 000
(4) R6 000
Question 13
Use the same facts as in question (12) directly above. The only difference is the date when
action is instituted. The action is instituted on 5 March Indicate which amount Mr Mokoena will
be able to claim from Themba on the ground of unjustified enrichment
(1) R1 000
(2) R2 000
(3) R5 000
(4) R6 000
Question 14
The case in which it was decided that an antenuptial contract concluded by a minor without his
or her guardian's assistance Is void and cannot be ratified by the guardian after the marriage
has taken place Is
(1) Louw v MJ & H Trust 1975 (4) SA 268 (T)
(2) Watson v Koen 1994 (2) SA 489 (0)
(4) Edelstein v Edelstein 1952 (3) SA 1 (A)
Question 15
(1) A person who is mentally ill for purposes of private law has no capacity to act
(2) A person who is senile or who is seriously ill has no capacity to act
(3) A drug addict or alcoholic has no capacity to act
(4) An insolvent has no capacity to act
Section B
(a) South African law recognises two categories of legal subjects Indicate what these categories
are, and briefly distinguish between them
(4)
A natural person is an actual human being, which is different from an “juristic person”. All
humans are recognised as legal subjects which can have rights, duties and capacities although
the content of these rights, duties and capacities may vary depending on factors such as the
person's mental capacity and age.
(b)
(i) In terms of the nasciturus fiction, a situation may anise where a nasciturus would have had
certain rights had he or she already been born In such a case, the legal position may be
kept in abeyance until the nasciturus is born Briefly explain what will happen to these rights
if the nasciturus dies during birth, and provide a reason for your answer
(2)
There is a condition that the application of the nasciturus fiction must be to the advantage of the
nasciturus. If the nasciturus dies during birth the nasciturus fiction will not be applied (not come
into operation) as the only persons who will benefit from the application of the fiction are third
persons, such as the child’s intestate heirs and not the child himself or herself.
(ii) Cathy is five months pregnant with her first child She is in the process of divorcing her
husband, John She wants no contact with John and agrees that he will not be responsible
to pay any maintenance after the birth of the child Advise Cathy on whether they can
legally enter into an agreement that John would not have to pay any maintenance Also
provide authority (case law) for your answer
(2)
(c) Briefly indicate under which circumstances each of the following presumption of death
procedures will apply
(i) Common law procedure
(1)
(ii) Statutory procedure
(1)
(d) Agnes's husband, Frank, disappeared a while ago According to the court there Is not
enough evidence to pronounce a presumption of death Agnes is finding rt difficult to survive
on her salary She approaches you for advice She tells you that Frank has a will, and that
she is the sole heir She would like to know from you whether she may use the money in the
estate, but also wonders what would happen if Frank s still alive and returns
(2)
(e) In terms of the Sterilisation Act 44 of 1998, a person who is mentally disabled may be
sterilised under certain circumstances The Act contains specific provisions in this regard.
The sterilisation may only be done if he or she s mentally disabled to such an extent that he
or she is incapable of the following
(3)

(a) Briefly explain the following concepts
(i) Status
(1)
Status is concerned with a person’s standing in the law. This "standing" is determined by all
those attributes a person has, or the condition in which he or she finds himself or herself to
which the law attaches consequences. In private law the most important attributes or factors
which determine a person's status are domicile, birth outside marriage, youth, physical illness or
incapacity, mental illness or incapacity, intoxication, prodigality and insolvency.
(ii) Legal capacity
(1)
Legal capacity is the capacity to have rights and duties. All human beings have this capacity
irrespective of their personal qualities, but their legal capacity does not extend equally far. Thus,
a new-born baby, a mentally ill person and an insolvent person all have legal capacity.
(iii) Capacity to act
(1)
Capacity to act refers to the capacity to perform valid juristic acts. Which is a human act to
which the law attaches at least some of the consequences desired by the party or parties
performing the act. Entering into legal transactions can have serious implications for the
persons concerned and therefore a person must have achieved a certain level of
intellectual or development before the law confers capacity to act on him or her. Minors
between the ages of seven and 18 years and prodigals have limited capacity to act
(iv) Capacity to litigate
(1)
Capacity to litigate (that is, locus standi in iudicio) is the capacity to appear in court as a party to
a lawsuit.
(b) A minor may not acquire a domicile of choice Briefly explain how rt is determined in our law
where a minor is domiciled. In your answer you have to refer to the relevant act
(2)
most closely connected. Therefore, Yolanda now stays with her grandmother in Witbank and
therefore she is domiciled in Witbank.
(c) Briefly explain what each of the following concepts relating to domicile of choice means
(i) Factum requirement
(1)
The factum requirement entails that person must be lawfully present at a particular place.
(ii) Animus requirement
(1)
The animus requirement relates to a person’s intention of settling at a particular place for an
indefinite
Period
(d) Joey is 31 years old Until recently, she was living and working in Pretoria. Unfortunately, she
was retrenched last month She is now living with her mother in Benoni until she finds a new
job Where is she domiciled? Provide a reason for your answer
(2)
As Joey is a major, and therefore, he has the capacity to acquire a domicile of choice (s 1(1) of
the Domicile Act). The two requirements for acquiring a domicile of choice is that a person must
be lawfully present in place and have the intention to settle for an indefinite period. In this case
Joey does not have the intention of settling in Benoni for an indefinite, and therefore is domiciled
in Pretoria. The Domicile Act (1) provides that a person does not lose their domicile until he or
she has acquired another domicile, neither does Joey they need to be continuously present in
Pretoria in order for him to be domiciled there
(e) Patrick and Sharon, both unmarried, lived together in a permanent life partnership for six
years While they were living together, a daughter, Lillian, who is now one year old, was born
Patrick is named on Lillian's birth certificate as the father and has been contributing to
Lillian's upbringing and maintenance Patrick and Sharon recently broke up and Sharon and
Lillian moved out of the house they shared with Patrick. Patrick now refuses to pay any
further maintenance for Lillian Sharon approaches you for advice on the following
(i) Sharon would Ike to know what our law provides with regard to the payment of
maintenance in the case of a child born of unmarred parents Advise her with reference to
authority
(3)
passes to the child's grandparents.
(ii) Suppose that both Sharon and Patrick lost their jobs and consequently cannot afford to
support Lillian Sharon wants to know who would be responsible for Lillian's maintenance
Advise her with reference to case law
(2)
(iii) What is the position with regard to maintenance if Patrick does pay maintenance, but he
dies when Lillian s four years old?
(1)
If an unmarried parent dies, his or her estate is responsible for the child's maintenance. Lillian
can inherit from Patrick regardless of the fact that she is a child born of unmarried parents.
Patrick’s estate is responsible for the maintenance of Lillian
(f) Themba was in a relationship with Linda, but they broke up last year A few weeks ago she
contacted him and told him that he has a son, Walter, who is now four months old Themba
wonders if Walter really is his son He wants Linda to submit herself and Walter to blood tests
(DNA tests) to determine whether he really is the father Based on these facts, please
answer the following questions
(i) Since the implementation of the Children's Act 38 of 2005, only one case that dealt with
blood tests to determine paternity has been decided in the South African courts Write
down the name of the case
(1)
(ii) Linda does not want to submit herself and her child to blood tests Provide Themba with a
list of all other factors (other than blood tests) that may be relevant in proving or
disproving his paternity
(3)

(a) In each of the following examples, indicate whether there is a valid contract Provide reasons
for your answers
(i) Terence, who is five years old, and his mother, Alison, go to a sport shop where Terence
buys a soccer ball with Alison's consent
(2)
Invalid contract as an infant (0 – 7) has no capacity to act, Terence is an infans with no capacity
to act and cannot conclude any juristic act. infans is a child under seven years of age and a
minor is, a child between the ages of seven, Terence is this an infant, An infans has no capacity
to act and cannot conclude any juristic act, even with the assistance of his or her guardian; The
guardian has to act for the infans and on the infans' behalf. Therefore, the above contract is
invalid contract
(ii) Solly, a nine-year-old boy, wants a skateboard, but his parents say it is too dangerous
Solly saves his pocket money for six months, then buys a skateboard without his parents'
knowledge or consent
(2)
Invalid contract, a minor can incur contractual liability only if he or she is assisted by his or
her guardian when the contract is concluded. Solly cannot incur contractual liability if the
contract of sale imposes duties upon him
(b) Lesego is ten years old Thabo, his father, has been told that he acts as Lesego's guardian,
he may incur personal ability on contracts under certain circumstances Briefly explain to
Thabo the circumstances under which he may be held personally liable in respect of
Lesego's contracts
(4)

(c) In the following examples, fill in the correct ages

(i) Unless the articles of the particular bank provide otherwise, a minor over the age of 16
years may be a depositor with any mutual bank
(1)
(ii) Once a minor reaches the age of 14 years, he or she may witness a will
(1)
(iii) Once a minor reaches the age of 16 years, he or she may make his or her own will
(1)
(iv) A minor who Is over the age of 12 years may independently consent to medical treatment
of himself or herself
(1)
(v) A child over the age of 12 years may independently buy condoms
(1)
(d) Freddy, a 17-year-old minor, wants to buy a motorbike without his parents' consent In order
to do this, he obtains a fake identity document in terms of which he appears to be 22 years
old He buys a motorbike from Andy, a 30-year-old man, using the fake identity document
Consider each of the following scenarios Indicate the bass of Freddy's liability, and provide a
reason for each answer
(i) Andy realises that the identity document is fake and that Freddy is a minor when he sells
the motorbike to Freddy but, because he wants to sell the motorbike, he does not say a
word
(2)
Freddy made a fraudulent misrepresentation regarding his majority, but Andy was not misled by
this misrepresentation. It was clear to her that Freddy could not be older than 17, and that he
was dealing with a minor. Andy was therefore not induced to enter into the contract by
Freddy’s misrepresentation. Furthermore, since Andy had good cause to believe that she was
dealing with a minor, he was not entitled merely to accept Freddy’s statement regarding his
majority. Freddy would thus not be delictually liable to Andy on the ground of the
misrepresentation.
(ii) Andy does not realise that the identity document is fake and that Freddy is a minor when
he sells the motorbike to Freddy
(2)
identity document. Andy was clearly misled by this misrepresentation and induced to enter into
the contract, and he acted to his detriment (he suffered a loss). Since there is no indication in
the set of facts that Andy had good reason to believe that he was dealing with a minor, Andy
was entitled to accept Freddy’s statement that he was of age. Freddy would thus be liable to
Andy for delictual damages on the ground of his (Freddy’s) misrepresentation.
(e) Amy, who is 17 years old, has just finished school and has managed to get a job as a sales
assistant in a clothing shop She needs transport to get to her job She decides to buy a
second hand motor car and pay the instalments with part of the salary that she will earn
Peter, her father, accompanies Amy to a dealership where Amy, with Peter's consent, buys a
car for R25 000 Two days after buying the car, they decide to take it to the Automobile
Association to find out what it is worth. There they are told that the car is only worth R8 000
Amy is very upset and wants to return the car to the dealership She approaches you for
advice
(i) Tell Amy which remedy she may use to escape liability in terms of the contract
(1)
Restitutio in integrum
(ii) Explain to Amy what the requirements for this remedy are
(2)
contract on his/her behalf (The contract must be valid). This remedy is also available
where the minor initially contracted without the necessary consent, but the guardian
subsequently ratified the contract.
2. The contract was to the minor’s detriment at the time of conclusion of the contract.
(iii) Explain to Amy what the purpose of this remedy Is
(1)
This remedy restores the parties to a contract to their previous positions before the agreement.
(f) Not all minors are liable for their delicts. To incur delictual liability, a minor must be
accountable Answer the following questions regarding a minor's capacity to incur delictual
liability
(i) Explain the meaning of "accountable" in this context
(1)
Capacity to be held accountable for crimes and delicts.
(ii) Write a short paragraph about a minor's capacity to incur delictual liability
(3)
A minor who makes a misrepresentation commits a delict and can therefore be held delictually
liable. This means that the prejudiced party has a claim for damages against the person
committing the delict. One of the consequences of delictual liability is that the duty rests on the
person committing the delict to compensate the prejudiced party for the damage he or she has
suffered as a result of the delict.
The delictual liability of minors exists completely independently of contractual liability. Its
application does not allow the minor to extend his or her capacity to act by means of
misrepresentation.

(a) Please answer the following questions regarding the termination of minority
(i) Indicate the prescribed age at which minority is terminated automatically
(1)
18 years
(ii) Francis is 16 years old She wants to enter into a civil union with her 22-year old boyfriend
Her parents have indicated that they are willing to consent to this She now wishes to
know whether such a civil union will be valid Provide a reason for your answer
(2)
(iii) Dawn is 17 years old Her boyfriend, Allan, is 21 years old Because her parents do not Ike
Allan, Dawn and Allan run away to secretly enter into a civil marriage She now wishes to
know whether this has terminated her minority or not Provide a reason for your answer
(2)
A minor who has previously entered into a valid civil or customary marriage and whose marriage
has been dissolved by death or divorce may enter into another civil marriage without consent
because he or she attained majority upon entering into the first marriage and the dissolution of
the marriage did not revive his or her minority
(b) A curator may be appointed for a mentally ill person There are three different kinds of
curators that may be appointed, namely a curator bonus, a curator ad Item, and a curator
persona. From these select the appropriate curator and in column A, fill in the one that
corresponds to the function described in column B
(3)
Column A Function
a curator persona This is a curator appointed to care for the
mentally ill person's person
a curator bonus This is a curator appointed to look after the
mentally ill person's property
a curator ad Item This is a curator appointed to represent the
mentally ill person in legal proceedings
(c) Write a brief paragraph on the insolvent's capacity to be held accountable for crimes and
delicts
(2)
Insolvency does not affect the insolvent's capacity to be held accountable for crimes and delicts.
However, if the insolvent commits a delict after sequestration, the compensation must be paid
out of those assets the insolvent acquired after sequestration that fall outside the insolvent
estate

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PVL1501 - Examination Questions

Section A: Multiple-Choice Question.................................................................................................... 3

Section A: Multiple-Choice Question.................................................................................................... 4

Section A: Multiple-Choice Question.................................................................................................. 13

Section A: Multiple-Choice Question.................................................................................................. 21

Section A: Multiple-Choice Question.................................................................................................. 30

Section A: Multiple-Choice Question.................................................................................................. 35

Section A: Multiple-Choice Question.................................................................................................. 42

Section A: Multiple-Choice Question.................................................................................................. 50

Section A: Multiple-Choice Question.................................................................................................. 55

10. OCT/NOV 2016............................................................................................................................. 60

Section A: Multiple-Choice Question.................................................................................................. 60

11. MAY/JUNE 2016............................................................................................................................ 65

Section A: Multiple-Choice Question.................................................................................................. 65

12. OCT/NOV 2015............................................................................................................................. 70

Section A: Multiple-Choice Question.................................................................................................. 70

13. MAY/JUNE 2015............................................................................................................................ 75

Section A: Multiple-Choice Question.................................................................................................. 75

14. OCT/NOV 2014............................................................................................................................. 80

Section A: Multiple-Choice Question.................................................................................................. 80

15. MAY/JUNE 2014............................................................................................................................ 85

Section A: Multiple-Choice Question.................................................................................................. 85

Statutory presumption of death

Common law presumption of death

Question 2 [units 8 to 11]

i. consents or successfully applies to be identified as the child's father or pays damages in

Question 3 [units 12 to 19]

(e) Write down the minimum ages at which a minor may

16 years, they may make a will

A minor may undergo an HIV test only if:

Question 4 [units 20-23]

(b) Define the term "insolvent"

 Road Accident Fund v Mtatr

Question 2 [units 8 to 11]

(d) Name the four components of parental responsibilities and rights

The status of children born of unmarried parents may be changed as follows:

Question 3 [units 12 to 19]

(ii) An infans is someone below the age of 12 months

Minority may be terminated in the following ways:

The Reformed Church of Africa; South African Democratic Teachers' Union

(b) Complete the following statements by providing the missing words

The Choice on Termination of Pregnancy Act 92 of 1996 permits termination of pregnancy on

Question 2 [units 8 to 11]

Question 3 [units 12 to 19]

1. To a name and nationality from birth

A minor who misrepresents himself or herself to be a major, to be emancipated, or to have the

The two requirements for restitutio in integrum remedy are as follows:

(h) What is the purpose of restitutio in integrum?

Question 4 [units 20-23]

(ii) A void marriage terminates minority (TRUE / FALSE)

(d) What do you understand by the concept "prodigal"?

Nana should base her claim on the law of delict

(e) Underline the correct options

A common-law order presuming someone's death automatically terminates / does not

Question 2 [units 8 to 11]

Column A (capacity) Column B (statement)

Musa is considered a child born of married parents Mandisa and Alfred.

Question 3 [units 12 to 19]

(iii) Reciprocal contract

A reciprocal contract is a special type of multilateral contract. It is a multilateral contract in terms

A minor who misrepresents himself or herself to be a major, to be emancipated, or to have the

(e) Fill in the missing words

Question 4 [units 20-23]