Question 1 [units 1 to 7]

(a) Briefly indicate when a natural person's legal personality begins, and what the
requirements are for the beginning of legal personality

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

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. 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

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.

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.

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.

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 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.

Question 2 [units 8 to 11]

(a) Indicate to what extent the following persons have capacity to act

(i) Sylva, who is four years old:

No capacity to act

(ii) Larry, who is 20 years old:

Full capacity to act

(iii) Candice, who is 30 years old and mentally ill

Limited capacity to act

(iv) Colin, who is fourteen years old

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?

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

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(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

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 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 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 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?

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.

(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).

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.

(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?

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

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(d) Name two ways in which a child born of unmarried parents can acquire the status of a
child born of married parents

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

by adoption

Question 3 [units 12 to 19]

(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

(b) Briefly compare the capacity to act of an infans to the capacity to act of a minor

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.

(c) Does an infans have the capacity to incur delictual and criminal liability? Briefly explain

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.

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. 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

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 paid

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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
€swer

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

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.

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)

€ Can a minor acquire majority status by entering into a civil union?

Provide a reason for your answer

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.

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(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
independentl consent to medical treatment of himself or herself.

(g) Name the circumstances when a child may undergo an HIV test

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.

october/november 2014 questions and answers pvl1501