PVL 1501 Study Pack PDF

LAW OF PERSONS
THE ULTIMATE LAW OF PERSON’S

EXAM PACK:
1 Simplified notes
2 Summarised court cases
3 Past exam papers with solutions

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Introduction
Law of persons
Law of persons determines:
1. which beings are legal subjects
2. how a legal subject originates and comes to an end
3. what legal status involves
4. what effect various factors have on a person's legal status
Confined to treatment of the natural person only: not juristic persons.

Deals virtually exclusively with the status of natural persons in the field of private law.
Different kinds of legal subjects

Legal personality is bestowed only on legal subjects.
In SA we have:
1. The natural person
2. The juristic person
Factors determining recognition as a legal subjects

Legal personality is conferred only to entities the law sees fit to recognize as legal subjects.
The following factors determine what is recognized as a legal entity within a country:
1. Legal norms and views of a particular community
2. The needs of commercial traffic
3. Historic and cultural background of a specific nation
Thus, as these factors change, what is recognized as a legal entity is subject to change.
Natural Person
All human beings, irrespective of age, mental capacity or intellectual capacity, are recognized as
legal subjects: known as “natural persons”
Thus: every human can have rights, duties and capacities based on mental capacity & age.
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Exceptions before modern law
Slavery was not abolished in the Cape until 1834: until then slaves in SA were legal objects who
could not have rights, duties or capacities.
Monstra: babies born so deformed that they lacked the human form and human mind were not
legal subjects under Roman & Roman Dutch law: today any abomination is regarded as a legal
subject.
Juristic person
Legal personality is also bestowed on certain associations of natural persons.
The association itself is granted legal personality and is called a juristic person.
Characteristics of a juristic person

1. Enjoys a legal existence independent from its members or the people who created it
2. Must always act through its functionaries, i.e. directors of a company
3. When functionaries act on behalf of the juristic person, it juristic person acquires rights,
duties and capacities, i.e. be bind itself to a contract, be owner of things, etc.
What is recognized as juristic persons?

1. Associations incorporated in terms of general enabling legislation, i.e. companies,
banks, close corporations and co-operatives
2. Associations especially created and recognized as juristic persons in separate
legislation, i.e. universities, semi-state organizations, public corporations (Eskom, SABC)
3. Associations which comply with the common-law requirements for the recognition of
legal personality of a juristic person, i.e. churches, political parties, trade unions: known
as universitates: Must meet following requirements:
a. Association must have a continued existence irrespective of the fact that its
members may vary
b. Must have rights, duties and capacities
c. Its object must not be the acquisition of gain
Trusts and partnerships are not recognized.
Beginning of legal personality

Legal personality begins at birth: foetus is not a legal subject.
Requirements for the beginning of legal personality:
1. Birth must be fully completed: complete separation between mother & foetus;
umbilical cord does not have to be severed
2. Child must live after the separation: stillborn foetus does not acquire legal personality.
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Viability (child can live independently of mother) is not a requirement for commencement of
legal personality in South Africa due to viability being a vague concept that could lead to
impossible problems of evidence (how to determine viability, length of life before viable, etc.).
Determining whether a child was alive

1. Purposes of criminal proceedings: Section 239(1) of the Criminal Procedure Act 51 of
1977: if the child has breathed, it was alive; child did not have to have independent
circulation; child does not have to be entirely separated from its mother.
2. Courts: rely on medical evidence: normally whether child breathed or not; any other
medical evidence by which life may be proved should be acceptable.
Registration of births
Births and Deaths Registration Act 51 of 1992

1. The Director General of Home Affairs must be notified of the birth of every child that
was born alive within 30 days of the child’s birth.
2. Duty rests on the parents to give notice: if neither can, notice must be given by:
d. The person who has charge of the child
e. The person the parents requests to do so
1. Anyone may apply to the Director General to assume a different surname
2. If a child’s surname has changed, the birth register may be changed to reflect the
change.
Naming of legitimate children under the act

1. Child must have a first name and a surname
2. Notice of legitimate child’s birth: must be given under the surname of either parent or
both surnames joined together: double-barrelled.
3. Children born as a consequence of artificial fertilisation of a woman who is a partner in
a same-sex life partnership are also legitimate due to J v Director General, Department
of Home Affairs: (2) thus counts for them too
Naming of extra-marital children under the act

1. An extramarital child is registered under surname of mother unless parents jointly
request that the father’s surname be used
2. If an extramarital child 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
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3. A father who wants to acknowledge paternity of an extramarital child and enter his
particulars on the notice of birth after the birth has already been registered, may do so
with the mother’s consent
4. If the mother withholds consent, the father may apply to the high court for a
declaratory order confirming his paternity and dispensing with the mother’s consent
5. If an extramarital child is registered under her father’s surname, the surname may only
be changed with the father’s written consent.
6. No provision is made in the act for double-barrelled surnames of extramarital children.
7. If the parents of an extramarital child marry after the birth has been registered, the
register can be altered as if the parents were married at the time of birth.
Definition of extra-marital/legitimate
1. “Child born out of wedlock” (extra-marital) does not include children whose parents
were married at the time of conception or at any time thereafter before the
completion of the child’s birth.
2. Concept of “marriage” has been expanded to include customary marriages and
marriages concluded or solemnized according to the tenets of any religion: thus child =
legitimate.
3. Religious marriages in (2) have not been afforded full recognition in our law, thus child
is only considered legitimate for the purposes of registration of birth and not for all
purposes.
Interests of the unborn child (nasciturus)
Nasciturus fiction
Law protects the potential interests of the nasciturus by employing the fiction that the foetus is
regarded as having been born at the time of conception when it is to his advantage.
In such a case, the legal position is kept in abeyance (interests are kept aside) until birth of the
child or until certainty has been reached that foetus will not become legal subject (abortion,
miscarriage, etc.). If foetus does become a legal subject, he receives the rights that have been
kept in abeyance for him.
Unborn foetus cannot have rights, duties or capacities.
Requirements when employing the fiction

1. Child must have been conceived at the time that the benefit would have accrued to him
2. Child must subsequently be born alive
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Limitations of the fiction
1. A third person may benefit from the application of the fiction if such a benefit is a
natural consequence of the application of the fiction in favour of the nasciturus, but the
fiction may not be employed if only a third person will benefit, thus:
f. If inheriting nasciturus dies shortly after birth, fiction will not be employed as
only a third party benefits and not the child.
g. If nasciturus inherits an estate large enough to support it, the parents will not
be liable for its maintenance: thus parents and nasciturus benefit.
1. Fiction cannot be employed to the detriment of the nasciturus
Interests taken into account

In common law the nasciturus fiction was mainly employed in the field of succession. In SA, he
fiction’s application has been extended beyond the law of succession:
Patrimonial interests
Succession
Intestate succession (person dies without a will)

Nasciturus is employed: Distribution of assets is postponed until it is certain whether or not a
live person has been born.
If child is alive: inherits as if already alive at time of deceased’s death.
If child is not alive: does not obtain rights and is not considered when estate is divided.
Testate succession (testator leaves a valid will)

If testator’s intentions regarding the unborn child is clear, testator’s intention is carried out. If
intentions are unclear, rules of the law of succession must be employed.
Examples:
1. If X leaves property specifically to A, B and C while D has already been conceived at the
time of the testators death but has not yet been born, D gets nothing.
2. If X leaves property to his (grand)children who are “born or still to be born”, any such
(grand)children born after X’s death will inherit regardless of whether or not they had
already been conceived at the time of X’s death.
3. If X does not appoint beneficiaries by name but as members of a class (i.e. “children of
Y”), a child in that class who was already conceived at the time of X’s death can inherit.
Ex Parte Boedel Steenkamp: X left stuff to “children who are alive at the time of my death”:
Judge decided conceived child should also inherit as the words “are alive” do not rebut the
strong natural presumption that the testator intended to include the nasciturus.
Steenkamp demonstrates:
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1. Court’s unwillingness to act to the prejudice of the nasciturus
2. A testator who wishes a nasciturus not to inherit must express that intention very
clearly.
Fideicommissum
Testator has ability to leave stuff to persons as yet unborn or unconceived: A leaves farm to B,
proviso farm must devolve to B’s eldest son, C, after B’s death, and to D after C’s death:
1. Institution know as fideicommissum
2. B is known as the fiduciary (fiduciarus)
3. C and D are known as the fideicommissaries (fideicommissarii)
Fideicommissum: protection of the interests of the unborn child

1. B may not alienate or mortgage the farm without the high court’s permission
h. If all fideicommissaries are majors and consent to alienation or mortgaging,
there will be no problem in obtaining such an order
i. If there is a minor or unborn fideicommissary, the court must give or withhold
its consent as upper guardian of all minors
1. The court will only give its consent if the alienation or mortgaging will be to the
advantage of all beneficiaries, including the unborn
Standard protection of the interests of the unborn child

1. Immovable Property Act 94 of 1965 provides that the court has the power to remove
or modify restrictions on immovable property which have been imposed by a will if it is
to the advantage of the unborn or unconceived person.
2. Administration of Estates Act 66 of 1965 provides that
a. if an unborn child will after birth become entitled to money or movable
property which is subject to somebody else’s usufructuary of fiduciary rights,
that person must give security to the master of the high court for the payment
of the money or delivery of the property to the child after its birth.
b. The master may consent to the subdivision of the land on behalf of the unborn
heir if this is expedient and equitable
3. In legal proceedings involving property in which an unborn person may have an
interest, a curator ad litem looks after the unborn child’s interests.
Maintenance
In Chisholm v ERPM 1909 it was held that:
1. a child whose father is killed prior to her birth as a result of someone else’s delict has a
dependant’s action for damages of support against that person.
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2. damages are calculated on the basis of putting the child in the position it would have
been in had the father not been killed
In Shields v Shields 1946 it was held that:
3. A mother or father cannot waive his or her unborn child’s right to claim maintenance
4. An agreement to that effect would be contra bonos mores.
If a pregnant mother divorces the father of her unborn child, the court may provide for the
child’s maintenance in the divorce order in order to avoid the need for legal proceedings about
maintenance after the child’s birth.
This is not based on the nasciturus fiction, it is merely a common sense approach based on
expedience.
Personality Interests
In Pinchin v Santam Insurance Co the nasciturus fiction was extended to the field of delict: the
father claimed damages for the infringements of the child’s personality rights.
The legal question was whether a person has an action for injury inflicted on him while still a
foetus in his mother’s womb.
Judge Hiemstra, after looking at various sources, decided our law was flexible enough to extend
the nasciturus fiction to the field of delict. He accordingly held that a child does have an action
to recover damages for pre-natal injuries. See Cases for full exposition.
Criticism against Hiemstra’s judgement

The question which arose in Pinchin could have been solved without invoking the nasciturus
fiction:
1. The ordinary principles of the law of delict would have given the child an action for pre-
natal injuries anyway.
2. All the elements of a delict need not be present at the same time and that it therefore
does not matter that the conduct and its consequences do not manifest themselves at
the same time
3. Thus the requirements of conduct and damage are met even if the disability which the
child suffers after birth was caused by the driver before birth
Arguments for Hiemstra’s judgement

Nasciturus fiction has to be applied in order to give an action for pre-natal injury:
1. An unborn child has no legal personality and thus no rights that can be infringed by a
delict
2. Thus in order to provide the child with an action, the child’s legal personality must be
pre-dated to before the birth so that the child has legal personality at the time of the
conduct causing the injury
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Guardianship and custody
Guardianship and custody are the 2 components of parental authority.
Guardianship: capacity a parent has to administer his child’s estate and assist child in the
performance of juristic acts.
Custody: controlling the person of the child.
If a woman is pregnant and gets divorced, the court may include an order regarding custody &
guardianship in the divorce: done to obviate further legal proceedings once the child is born.
Same as maintenance: nasciturus not invoked; merely for convenience once child is born.
Parental authority does not arise until the child is actually born:
1. A pregnant woman cannot have parental authority over a part of her own body
2. A father cannot have parental authority over a part of the woman’s body
3. The father cannot stop the mother from having an abortion, thus he cannot even have
parental authority over the foetus
4. Question of how one would exercise parental authority, especially custody, over an
unborn child arises
Friedman v Glicksman 1996:

Mother wants to enter into a contract for her unborn child.
Problems with this:
1. Legal personality only begins at birth, thus mother may not enter into a contract on
behalf of a non-existent principle.
2. Nasciturus can also not be used: would mean that parental authority is conferred on
parent before birth of child (not possible)
Solution to this:
rd
1. Parent enters into a contract with a 3 person
2. Parent (A) enters into a contract with somebody else (B) in terms of which B undertakes
to keep open an offer of contract with the unborn child (C) after his birth
3. C is thus not party to the contract, only A and B, thus it does not matter that C does not
yet exist
Termination of Pregnancy
Choice on Termination of Pregnancy Act 92 of 1996 regulates termination of pregnancies.
Circumstances under which pregnancy may be terminated

1. On the request of the woman during the first 12 weeks of the gestation period
th th
2. From the 13 to the 20 week of the gestation period if a medical practitioner, after
consultation with the pregnant woman is of the opinion that:
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a. The continued pregnancy of the pregnancy would pose a risk of injury to the
woman’s physical or mental health
b. There is a substantial risk that the foetus would suffer from severe physical or
mental abnormality
c. The pregnancy resulted from rape or incest
d. The continued pregnancy would significantly affect the woman’s social or
economic circumstances
3. After the 20th week of the gestation period only after a medical practitioner in
consultation with another medical practitioner or a registered midwife is of the opinion
that the pregnancy would
a. Endanger the woman’s life
b. Result in severe malformation of the foetus; or
c. Pose a risk of injury to the foetus
Before the 12th week a termination may be performed by either a midwife or a medical
practitioner.
After the 12th week only by a medical practitioner.
Consent by mentally able women

1. Termination may only take place with the informed consent of the pregnant woman.
2. No consent other than that of the woman is needed, unless the woman is incapable of
giving consent
3. Minors must be advised to consult with their parents, guardians, family members or
friends before termination but may not be denied if she prefers not to do so.
Consent by mentally disabled and unconscious women
Termination with consent of spouse/guardian/curator personae

1. If (1) the gestation period is less than 21 weeks and (2) the circumstances listed under
point 2 of 3.7.1 are present the pregnancy may be terminated by a guardian or spouse
if the woman:
a. is mentally disabled to such an extent that she is incapable of understanding
and appreciating the nature or consequences of terminating her pregnancy, or
b. she is in a state of continued unconsciousness without a reasonable prospect of
regaining consciousness in time to request and consent to the termination
2. The curator personae may consent if the woman’s guardian or spouse cannot be found
3. Two medical practitioners or a medical practitioner and a registered midwife must also
consent to the termination
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Termination without consent of spouse/guardian/curator personae: prior to 21 st week of
gestation
1. Pregnancy may be terminated without consent of spouse/guardian/curator personae if
two medical practitioners or a medical practitioner and a registered midwife are of the
opinion that
a. The continued pregnancy would pose a risk of injury to the woman’s physical or
mental health
b. There is a substantial risk that the foetus would suffer from a severe physical or
mental abnormality
Termination without consent of spouse/guardian/curator personae: from 21 st week of

gestation onwards
1. Pregnancy may be terminated without consent of spouse/guardian/curator personae if
two medical practitioners or a medical practitioner and a registered midwife are of the
opinion that the pregnancy would
a. Endanger the woman’s life
b. Result in a sever malformation of the foetus
c. Pose a risk of injury to the foetus
Sterilization
1. The Sterilization act 44 of 1998 permits the voluntary sterilization of anyone over the
age of 18 years who is able of consenting.
2. Applies regardless whether or not the person is married
3. Person must give free and voluntary consent without inducement
4. Before consenting, the person must be
a. given a clear explanation and adequate of the proposed plan of sterilization
procedure
b. told of the consequences, risks, reversible/irreversible nature of the procedure
c. advised that consent may be withdrawn any time before the sterilization takes
place
5. After (4), consent must be given on a particular prescribed form
6. Person under 18 will only be sterilized if failure to perform the sterilization would
jeopardize his life or seriously impair his physical health
7. When sterilizing, the method posing the smallest amount of risk to the patient’s health
must be used.
Sterilizing mentally disabled people

1. For persons with severe mental disability, sterilization may be performed with the
consent of person’s parent, spouse, guardian or curator.
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2. Desirability of sterilization must be evaluated by a panel consisting of a
psychiatrist/medical doctor, psychologist/social worker and a nurse
3. The panel must take all relevant facts into account, including that the person has
reached the age of 18 and that there is no other safe and effective method of
contraception
4. If the person is incapable of consenting or incompetent due to severe mental disability,
the sterilization may only be performed if the panel concurs that the sterilization may
be performed and if the person is incapable of
a. Making his own decision about contraception or sterilization
b. Developing mentally to a sufficient degree to make an informed decision about
contraception or sterilization
c. Fulfilling the parental responsibilities associated with giving birth
Is the nasciturus a legal subject?
Nasciturus Rule
Van der Vyver, Joubert and Van der Merwe maintain that the protection afforded to the foetus
is based on the nasciturus rule and not a fiction:
1. Whenever a situation arises where it would have been to the advantage of the
nasciturus had he already been born, all rights conferred on people are also conferred
on the foetus
2. Thus follows that the foetus is a legal subject from the date of conception whenever his
interests are at issue
3. Thus legal personality sometimes begins at birth and sometimes at conception
Nasciturus Fiction
Cronje & Heaton and Jordaan & Davel favour the nasciturus fiction:
1. Nasciturus is regarded as having been born at the time of conception if a situation
arises where it will be to the foetus’s advantage had it already been born.
2. Not the protection of the “rights” of the nasciturus that is involved, but the protection
of the rights of the child that will be born later
3. Thus the qualification that the nasciturus is regarded as having been born only if a living
child is indeed born
4. If the child is not born alive, the protection falls away completely and it is as if there
never was a nasciturus
5. Thus the interests of the as yet unborn child are kept open until he is actually born.
6. Accordingly, legal personality only begins at birth
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The end of legal personality
Legal personality is terminated by death: thus dead people have no rights or obligations.
The dead person’s assets are protected to protect the interests of creditors & heirs.
It is not clear what criteria are applied in determining when a person is legally dead:
1. Courts rely exclusively on medical evidence to establish
a. whether someone is dead
b. the moment of death
2. In the past: death = absence of natural heart and lung activity
3. Today: death = a process which sometimes extends over a period of time and involves
cessation of natural heart, lung and brain activity
4. Medical experts suggest that brain death should be legally accepted as death
5. Human Tissue Act 65 of 1983 governs anatomical donations after death but does not
specify criteria for determining when death takes place
a. Provides that 2 doctors who have been in practice for at least 5 years must
certify that the donor is dead
b. 2 doctors may not be part of the transplant team
c. Act thus places determination of death completely in the hands of the medical
profession
Proof of death
Required for 2 reasons:
1. Once death is proved the deceased’s estate can be administered and distributed
2. The surviving spouse can remarry
Death is proved by means of a death certificate signed by a medical practitioner or magistrate.
After death has been registered, Director-General of Home Affairs issues an official death
certificate which is prima facie proof of the death of the person mentioned in the certificate.
Presumption of Death
Common Law procedure

If a person disappears and could be dead a presumption of death can be pronounced under the
common law or, in some instances, in terms of statute.
Procedure to get a missing person pronounced dead

1. Any interested party can ask the high court where the person had his domicile to grant
a presumption of death
2. Case is brought by way of an application
3. All relevant facts and circumstances must be brought to the attention of the court
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4. Applicant must prove on a preponderance of probabilities that the missing person is
dead
Factors and circumstances taken into account

1. Initially based on English law where presumption was granted after 7 years
2. Was later superseded by the rule that no fixed period of time is required (see
Beaglehole)
3. Factors and circumstances taken into account to prove probability of death:
a. Length of time person has been missing
b. The age of the person when presumed dead
c. The person’s position in life
d. The trade or occupation of the person
e. The age of the person when the application is brought forward
f. The person’s state of health at the time of the disappearance
g. Whether or not the person manifested suicidal inclinations
Procedure followed by our courts to issue presumption

1. After the hearing, the court sets a return date on which the final order will be made
2. Applicant must then
a. give notice of rule nisi to interested parties indicated by the court
b. publish the rule nisi in the Government Gazette
c. publish the rule nisi in a newspaper in circulation in the area where the missing
person used to live
Statutory procedure
There are 2 ways in which someone can be declared dead by statute:
Inquests Act 58 of 1959

Section 5(2) of the Inquests Act 58 of 1959 says that:
1. If a magistrate is of the opinion that a death was not of natural causes, he must make
sure that an inquest into the circumstances and cause of the death is held by a judicial
officer
2. If the corpse is available, the district surgeon must examine it to determine cause of
death
3. If the body cannot be found or has been destroyed and all the evidence proves beyond
a reasonable doubt that the person is dead, the judicial officer must record his findings
in respect of:
a. The deceased person’s identity
b. The cause or likely cause of death
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c. The date of death
d. Whether the death was caused by an offence
4. If the judicial officer cannot find any of the above, the fact must be recorded
5. If a magistrate has recorded findings regarding the deceased person’s identity and date
of death, these must be submitted at the inquest for review by the high court having
jurisdiction in the area where the inquest was held
6. If the high court confirms the findings the effect is the same as if it had made an order
presuming the person’s death
Remarks re the Act

In this act, the state takes the initiative because an unnatural death is suspected: thus not
necessary for a private person to approach the court and ask for a presumption of death to be
granted.
According to the act, the judicial officer must prove beyond a reasonable doubt that the person
is dead: this differs from the common law presumption which only has to prove death on a
balance of probabilities. Thus it is more difficult to prove a death due to the heavier onus of
proof and it would be easier to have someone presumed dead under the common law.
Aviation Act 74 of 1962

Section 12(1) of the act says:
1. If an aircraft is involved in an accident in or above the Republic or its territorial waters,
or any South African aircraft is involved in an accident anywhere, the Minister of
Transport may appoint a board of enquiry to investigate the accident.
2. If there has been loss of life and a judicial officer is part of the board of enquiry
a. the same procedure as followed under the Inquests Act must be followed
b. the inquiry may be a joint inquiry by the board and an inquest under the
Inquests Act
3. If it is not found beyond a reasonable doubt that someone died, interested parties may
still approach the court for an order presuming the person’s death.
The effect of an order of presumption of death

Order presuming death is binding on the whole world.
Only the high court of the area where the person was domiciled has jurisdiction to pronounce
or set aside an order presuming death.
Rebuttable presumption
1. A presumption of death is a rebuttable presumption re the death of a person.
2. The order can be set aside if it turns out that the person might be/is alive
3. Application can be brought by any interested party or the person himself
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4. If this happens, the formerly missing person may
a. approach the court for an order that the estate not be further divided
b. ask for an order setting aside the presumption of death
c. get all their stuff back from people who have received benefits
d. sue people under the condictio indebiti if they don’t want to give his stuff back
Estate
1. The estate of the person can be administered and divided amongst his heirs
2. Courts may require heirs to furnish security if the missing person should appear
Dissolution of marriage
1. Order presuming someone’s death does not automatically dissolve marriage
2. Dissolution of Marriages on Presumption of Death Act 23 of 1979 regulates the
position:
a. If a person has been presumed dead, the court may make an order that the
marriage is deemed dissolved by death on a date determined by the court.
b. The court will not dissolve a marriage on its own initiative: the application must
be brought by the spouse
c. Result of the order is that the marriage is dissolved as if by death of one of the
spouses
d. If an inquest was held under the Inquests Act and a presumption of death was
given, the marriage is automatically dissolved and no application needs to be
brought by the spouse
Refusal by court to issue presumption of death

1. Court may refuse to order presumption of death, but may still divide person’s
belongings between his heirs provided they give security should the person come back.
2. Court may also refuse to order presumption of death but may appoint a curator bonis
to administer his affairs.
Presumptions regarding sequence of death

If people die together (commorientes), the courts may need to determine who died first to see
who inherited from whom
Law today is:
1. If the sequence cannot be proved on a balance of probabilities, no presumption of
survival or simultaneous death will be made
2. Unless there is evidence to the contrary, however, court will find that all commorientes
died together
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Registrations of death
Births and Deaths Registration Act 51 of 1992 requires every death to be reported to the
Director General of Home Affairs.
Applies to:
1. Deaths due to natural causes
2. Deaths due to unnatural causes
3. Stillbirths
Giving notice
1. If someone died of natural causes, anyone who was present at the death or became
aware of it or the person in charge of the funeral must notify the Director General
2. Notice is given by means of a medical certificate issued by the medical practitioner who
attended to the deceased or attended the corpse or by means of prescribed notice
3. If someone died of unnatural causes, a certificate may not be issued and the matter
must be reported to the police whereupon an inquest will be held under the Inquests
Act
4. For a stillbirth, the medical practitioner present at the birth or who examined the
corpse must notify the Director General
5. If no doctor was present at the stillbirth, the duty falls on anyone who was present
6. As soon as the death has been registered, the Director General will issue an official
death certificate
Duty to bury the deceased

1. No one may be buried or cremated before a burial order has been issued in terms of
the Births and Deaths Registration Act: burial order is issued only once the prescribed
notice of death/stillbirth has been given.
2. Written instructions by the deceased must be followed as far as possible.
3. In the case of verbal instructions, there must be clear proof of those instructions,
especially if they contradict the written instructions.
4. If there are no instructions, the deceased’s heirs have the right and duty to determine
the corpse’s fate.
Status
Status is derived from Latin stare (stand): thus status is concerned with a person’s standing in
the law.
Standing is determined by various attributes of a person or the condition in which he finds
himself and to which the law attaches consequences, i.e.:
1. Domicile
2. Extra-marital birth
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3. Youth
4. Physical illness or incapacity
5. Mental illness or incapacity
6. Intoxication
7. Prodigality
8. Insolvency
A legal subject has several capacities which flow directly from the law and are influenced by the
factors previously listed:
1. Legal capacity
2. Capacity to act
3. Capacity to litigate (locus standi in iudicio)
4. Capacity to be held accountable for crimes and delicts
Only the high court is competent to give judgements regarding status.
Legal capacity
1. Legal capacity is the capacity to have rights and duties.
2. All humans have this capacity irrespective of personal qualities
3. All legal subjects have legal capacity, but legal capacity does not extend equally far for
everyone, i.e. a child cannot marry
a. Certain legal subjects cannot have certain rights or duties at all
b. Certain legal subjects cannot have certain rights or duties at a specific time
c. Thus legal capacity can be limited from person to person but no legal subject
will ever be entirely without legal capacity
4. Something that can never have rights or duties is not a legal subject but a legal object
Capacity to act
1. Refers to the capacity to perform valid juristic acts.
2. Juristic act: an act to which the law attaches at least some of the consequences desired
by the party performing the act
3. Children under 7 and mentally ill people have no capacity to act: law does not attach
any validity to their expression of will
4. People between the ages of 7 and 21 have limited capacity to act: the law attached
expression of will to certain acts but not to others
Capacity to litigate
Refers to the capacity to appear in court as party to a lawsuit
Usually a close correlation between capacity to act and capacity to litigate.
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Some authors maintain that, because someone else can litigate on behalf of infantes and
mentally ill people, these people do in fact have capacity to litigate: Cronje & Heaton do not
support this.
Capacity to be held accountable for crimes and delicts

Refers to accountability: capacity to be held liable for crimes and delicts.
Often coincides with capacity to act and capacity to litigate.
To a large extent influenced by a person’s age and mental condition because intent (dolus) or
negligence (culpa) is a requirement for criminal and delictual liability: mentally ill people or
people that are very young cannot have criminal capacity.
Domicile
Domicile is used to determine which legal system is applicable to specific people when
determining their status.
Definition of domicile
Domicile is:
1. the place where a person is deemed to be constantly present
2. for the purpose of exercising his or her rights
3. and fulfilling his or her obligations
4. even in the event of his or her factual absence
To acquire domicile in the legal sense, one must have the intention of settling at a particular
place for an indefinite period.
Importance of domicile
Domicile is important in many fields of private law.
Examples:
1. Whether or not a child is legitimate or extra-marital is determined by the law of the
child’s domicile of origin
2. Law of succession: if someone dies intestate, law of the country of domicile determines
how movable property should devolve
3. Relevant when determining whether someone has the capacity to inherit
4. Determines what the matrimonial property regime of a marriage will be
5. Determines which division of the high court has jurisdiction in some matters: thus
sometimes plays a role in law of procedure
6. A factor in determining international jurisdiction of a foreign court in order to recognise
and enforce an order of such a court
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General principled governing domicile
Principles are governed by the Domicile Act 3 of 1992.
Act is not retrospective: thus any right, capacity, obligation or liability which was acquired,
accrued or incurred by virtue of the domicile a person had at any time prior to the date on
which it came into operation, is not affected.
1. Every person must have a domicile at all times due to a person's status being largely
dependent on his or her domicile in our law. The law therefore cannot allow a person
to be without a domicile at any time.
2. The changing of a person's domicile is never accepted without proof. If it is proved
that a person has established a domicile at a specific place, it is accepted that he retains
that domicile until the contrary has been proved. The matter is determined on a
balance of probabilities.
3. No one can have a domicile in more than one place at the same time. Some common
law writers maintain that it is possible to have more than one domicile, but most
modern authors submit that it is not possible.
Kinds of domicile
Domicile of origin
Refers to the domicile the law assigns to a person at birth.
Prior to the Domicile Act a person’s domicile of origin revived if he abandoned his domicile of
choice without assuming a new domicile.
Domicile Act, however, provides that no one loses their domicile until they acquire a new
domicile and specifically provides that the domicile of origin does not revive.
Thus, because of the Domicile Act, domicile of origin has lost its significance: it is merely the
first domicile assigned to a person by operation of law.
Domicile of choice
Section 1(1) of the Domicile Act provides that anyone
1. regardless of sex or marital status
2. over the age of 18 or under the age of 18 who legally has the status of a major
3. who does not lack mental capacity to make a rational choice
is competent to acquire a domicile of their choice
Prior to the act, a wife followed the domicile of her husband: was called domicile of
dependence.
Requirements for acquiring a domicile of choice

To acquire a domicile of choice, the person concerned must:
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1. Settle at the particular place (factum requirement)
2. have the intention of residing permanently at the place (animus requirement)
The 2 requirement must at some time or another exists simultaneously but need not come into
being simultaneously.
Factum Requirement
1. Determining whether a person’s residence meets the factum requirement is done
objectively.
2. No specific period of physical residence is required, but the person must not just be
visiting the place
3. Courts sometimes take into consideration the duration of the physical presence of a
person when determining intention of remaining there.
4. Once domicile of choice has been established, the person’s continued presence is not
required.
Domicile Act recognizes only lawful presence for purposes of acquiring domicile of choice.
Thus:
1. Illegal immigrants cannot acquire domicile
2. Deported people lose their domicile, because their return would be unlawful
3. Fugitives do not lose their domicile at the place from which they fled.
a. Reason for this: preclude fugitive from relying on the fact that court does not
have jurisdiction in area that he fled to
Animus Requirement
1. Determining whether person had intention (Animus) of staying somewhere is
subjective.
2. Person acquires a domicile of choice at a particular place when they have the intention
of staying there “for an indefinite period”.
a. Thus the requirement can still be satisfied even if the person envisages moving
at an unknown future date
3. Person must be able to carry out the intention of settling at a particular place.
a. Thus previously military staff, diplomats, public servants, employees of foreign
governments or businesses and prisoners were thought to not be able to decide
where they were going to stay due to employers deciding where they would
stay.
b. According to Cronje & Heaton the mere fact that a person has been posted to,
stationed or imprisoned at a specific place does not mean they do not have
animus.
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Common law situation re military personnel, prisoners, etc
From Baker v Baker it has been decided that military personnel could acquire domicile at the
place they are stationed.
From Naville v Naville it has been decided that diplomats, public servants and
employees/officers of foreign governments or businesses could acquire domicile of choice in
South Africa.
From Nefler v Nefler it has been decided that prisoners who are imprisoned for life
automatically acquire a domicile of choice in prison.
Domicile by operation of law

Section 2(1) of the Domicile Act provides that:
Anyone that does not have the capacity to acquire a domicile of choice is domiciled at the place
with which he is most closely connected
People who cannot acquire domicile of choice:
Children below 18 who have not attained majority status
People who do not have the mental capacity to make a rational choice
The law assigns a these people a place of domicile (the place with which they are most closely
connected).
Domicile of a child
Section 2(1) applies.
Section 2(2) contains the rebuttable presumption that if a child stays with his parents, his
domicile is his parental home.
Domicile is assigned only if person is under 18 and unmarried: when person reaches 18 or
marries, he retains the domicile he had by operation of law until he establishes a new domicile.
Parents of the child include:
adoptive parents
parents who are not married to each other: thus law does not distinguish between children
born in/out of wedlock
Domicile of a mentally incapacitated person

Section 2(1) applies.
Formerly:
mentally incapacitated people retained the domicile they had before becoming incapacitated
mentally capacitated people followed the domicile of their curator
Extra-marital birth
Legitimate child:
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One who is born of parents
who were legally married to each other
at the time of the child’s conception or
at any intervening time
Illegitimate child:
Parents were not married to each other at any of the above stages
Categories of illegitimate children

Natural Children (spurii or liberi naturales)
Children born of parents who were not married but could have validly married
Adulterine Children
One or both of the child’s parents were married at the time of conception
Incestuous Children (overwonnen kinderen or overwonnen bastaarden)
Children born of parents who were too closely related to be able to marry
Artificial fertilisation
Children produced by artificial fertilisation of a woman with her husband’s semen are
legitimate, irrespective if the husband consented to his semen being used.
Children’s Status Act 82 of 1987, section 5(1) states that:
A child born to spouses who consented to the use of another person’s gametes for purposes of
artificial fertilisation is deemed legitimate.
No right or obligations arise between the child and the gamete donor/donor’s relations, unless
the donor is a woman who gave birth to the child, or
the donor is the woman’s husband at the time of the artificial fertilisation
Section 5 does not apply to
married women who do not have their husband’s consent
unmarried women, unless
she is a life-partner in a same sex relationship (J v Director General, Department of Home
Affairs: see Cases)
Also extends to surrogate motherhood but is ill suited to deal with all the problems surrounding
surrogacy.
Surrogacy will be addressed in the SA Law Commission’s in its proposed Children’s Bill.
Draft Children’s Bill states that:
1. A child who is born to a surrogate mother who entered into a valid surrogate
motherhood agreement, becomes the child of the commissioning parents for all
purposes from the moment of birth.
2. The surrogate mother and her husband or life partner and their relatives have no rights
in respect of the child, although the parties may agree that they have access to the
child
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3. The child has no rights of inheritance or maintenance against the surrogate mother, her
husband or life partner, or their relatives
4. If the surrogate agreement is terminated before the child’s birth, the child is the child
of the surrogate mother and her husband or life partner as from the date of birth.
5. If the agreement is terminated after the date of birth, the child becomes the child of
the surrogate mother and her husband or life partner and the commissioning parents
lose all rights in respect of the child.
Proof of parentage
Presumption of Paternity
Married persons
If a child is born to a married woman it is presumed to be legitimate: thus it is rebuttably
presumed that the woman’s husband is the father.
Expressed in maxim: pater est quem nuptiae demonstrant (the marriage indicates who the
father is)
Courts are hesitant to declare children extra-marital (F v L, B v E)
In cases where woman remarries soon after a divorce, the second husband is rebuttably
presumed to be the father.
Rebutting the presumption of paternity

The presumption is rebuttable:
The fact that the husband is not the child’s father must be proved on a balance of probabilities.
The right to rebut the presumption of paternity does not lapse in the course of time.
Any interested party can rebut the presumption, not just the child’s mother or husband
Paramount considerations should be the child’s interests
Unmarried persons
Section 1 of the Children’s Status Act of 1987 says:
A man is presumed to be the father of an extra-marital child only if it is proved by way of
judicial admission or otherwise that he had sexual intercourse with the child’s mother at a time
when the child could have been conceived.
Presumption is rebuttable.
Once the presumption operates, the onus is on the man to prove on a balance of probabilities
that he cannot possibly be the father of the child: insufficient to prove that he probably isn’t
the father.
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Corroboration of the mother’s evidence
Formerly: courts did not accept mother’s corroboration without evidence: rejected in Mayer v
Williams.
In Mayer v Williams JA Trengove decided that:
The court should use the cautionary rule used in criminal proceedings when using the women’s
testimony with regard to the paternity of the child
Cautionary rule requires the court to recognize:
The danger of relying upon a complainant’s evidence in respect of a sexual offence
The need for some safeguard reducing the risk of a wrong conviction
Safeguard may be found in:
Corroboration
the absence of contradictory evidence, or
the untruthfulness of the accused as a witness
Thus, court does not always require corroboration, but corroboration may serve as a safeguard
However, Mayer v Williams, will probably not be used due to the rejection of the cautionary
rule in S v J.
Rebuttal of the presumption/allegation of paternity
Absence of sexual intercourse

If it can be proved that
the man did not have sexual intercourse with the child’s mother
at any time when the child could have been conceived
the presumption/allegation is refuted
The gestation period

Roman & Dutch law accepted that a child born between 180 to 300 days after conclusion of a
marriage was conceived during the marriage.
In our law there is no fixed gestation period: courts make a decision on an ad hoc basis.
Courts rely on:
Medical evidence as to when conception could possibly have taken place
The “normal” period of gestation:+- 270 to 280 days
Sterility
Allegation/presumption is refuted if it can be proved that the man is sterile.
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The exceptio plurium concubentium
If a man has sex with a woman during the time that a child could have been conceived, but the
woman also had sex with another man, the defence is called the exceptio plurium
concubentium.
The problem arises as to who is the father of the child.
Solutions to the problem:
All the men involved could simply be absolved
would be sexist, unfair, reflect a view not in keeping with modern-day notions of morality and
not be in the best interest of the child
All the men could be held liable
would be unfair to the men and open to abuse as it would be to the benefit of the woman to
name as many men as possible in order for her to get maintenance from at least some of them
The man named by the mother can be held liable unless he can prove that he cannot be the
father, i.e. due to sterility
seems to be generally accepted in our law today, thus the exceptio plurium concubentium is
not in use today as a rebuttal of the presumption of paternity and it would not help the man to
prove that the woman had sexual relations with other men
Problems obviously arise with this approach as a man who is not the father could be named by
the mother.
Cronje & Heaton allege that the mother’s right to choose the father should be reconsidered due
to:
Availability of sophisticated blood and tissue tests
Violation of the father’s right to equality before the law and equal protection and benefit of the
law due to the mother’s right to choose
Physical features
He fact that the physical features of the child do or do not resemble those of the alleged father
do not have much weight, but can be considered in conjunction with other factors which prove
or disprove paternity.
Contraception
Proof that contraceptives were used during sexual intercourse does not refute the presumption
of paternity.
Blood and tissue tests

I’m too tired to do this. Just study the cases.
May a court compel a child and an adult to undergo blood tests in order to determine
paternity?
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Case Child Adult
May May Not Not Decided May May Not Not
Decided
OvO ● ●
Seetal v ● ●
Pravitha
MvR ● ●
SvL ● ●
Nell v Nell ● ●
The status and legitimation of extra-marital children
The status of the extra-marital child
Parental authority of the mother

1. If a child is extra-marital, only the mother has guardianship and custody.
2. If the unmarried mother is herself a minor, she has custody but guardianship is vested
in the mother’s guardian, unless a court directs otherwise
3. If the unmarried mother is a minor but has acquired the status of a major by marrying
or by obtaining a declaration of majority, she has custody and guardianship
4. The unmarried mother becomes the guardian of the child when she turns 21.
5. If an extra-marital mother marries someone other than the child’s father, she remains
the child’s only guardian
6. An extra-marital child is registered under his mother’s surname, but the father may
consent to his surname being used.
7. A child’s domicile is determined by the place with which he is most closely connected
and not by his mother/father’s domicile.
8. Acts performed while the person thinks that they are the child’s natural guardian may
be ratified by the court if they were performed in the child’s interest.
Parental authority of the father

1. The court has the power to award custody and guardianship of an extra-marital child to
the father if it is the child’s best interests.
2. The court would rather give guardianship of the child to the father than to another
person due to his genetic relationship with the child.
3. Depending on whether it is in the child’s best interests, custody can be given to the
father and the child removed from the mother.
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Natural Fathers of Children Born out of Wedlock Act 86 of 1997
Under the Act, the court has statutory power to award custody and/or guardianship to the
father of an extra-marital child.
The Act does not automatically afford the father any right in respect of the child but provides
that the court may, on application by the father, grant him custody and/or guardianship and/or
access if it is in the best interest of the child.
The court takes the following into consideration when considering the father’s application:
1. The relationship between the father and the child’s mother, particularly whether either
has a history of violence against or abuse of each other or the child
2. The child’s relationship with both parents
3. The effect that separating the child from his mother, father, proposed adoptive parents
or any other person is likely to have on the child
4. The child’s attitude in relation to granting the application
5. The degree of commitment the father has shown towards the child, i.e. whether he
paid for the birth, has paid maintenance from date of birth and has paid maintenance
regularly.
6. Whether the child was born of a marriage concluded under a system of religious law
7. Any other fact that should, in the opinion of the court, be taken into account
The court may grant sole guardianship or custody of the child to either parent if, in the court’s
opinion, it is in the child’s best interests.
The court may also order that, on the death of the parent to whom sole custody/guardianship
was granted, a person other than the surviving parent will be the child’s guardian or custodian.
Under Section 3 of the Act:
1. the family advocate must furnish the court with a report and recommendations
regarding the welfare of the child before the court can consider the application
2. the court may cause any investigation it deems necessary and order anyone to appear
before it
3. the court may appoint a legal representative to represent the child and may order the
parties to pay the costs of any investigation, appearance or representation orders
Access
Most courts hold that the father does not automatically have the right of access to the child,
even if he and the mother were living together at the time of the child’s birth:
This is due to the fact that access is a component of parental authority and common law
provides that the father does not have parental authority.
Paying maintenance for the child does not afford the father right of access (B v S)
If it is in the best interests of the child, access will be granted to the father(B v S & B v P)
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In Van Erk v Holmer J Van Zyl went against B v P (full bench decision of the Transvaal Provincial
Decision of the high court) and said that:
1. The old authorities were silent on the matter and that there was no precedent,
legislation or custom
2. The child’s interests demanded that no distinction be drawn between legitimate and
extra-marital children
3. That expecting the father to pay maintenance but denying him access was grossly
unfair
4. Access to a child should not be regarded as an incident of parental authority
Van Erk V Holmer was rejected by J Fleming in S v S and by JA Howie in B v S..
Re Van Erk v Holmer J Fleming said in S v S that:

1. J Van Zyl should have followed B v P due to stare decisis.
2. Opined that there were precedents upon which J Van Zyl should have based his
decision
3. The fact that no old authorities gave a father right of access is a strong indication that
no such right exists.
4. Public policy does not demand that an inherent right of access be granted to the father
Re Van Erk v Holmer JA Howie said in B v S that:

1. J Van Zyl’s judgment was obiter
2. A father’s right of access depends on paternal authority and as a father of an extra-
marital child does not have that, there is no inherent right of access
3. If it is in the child’s best interests, the father may be granted access
4. That if the court was to grant access, the father had to, inter alia, inform the court of
the degree of commitment shown towards the child, the degree of attachment
between him and the child and the reasons for applying for the order.
Adoption
Section 18(4)(d) of the Child Care Act 74 of 1983, which required only the consent of the
mother for the adoption of an extra-marital child, was declared unconstitutional in Fraser v
Children’s Court, Pretoria North due to the fact that the section:
1. discriminated unfairly against fathers in some matrimonial unions
2. infringed the right to equality
The court also said that section 18(4)(d) discriminated unfairly on the ground of gender because
the consent of a mother was always needed but the consent of a father of an extra-marital
child was never needed.
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Adoption Matters Amendment Act 56 of 1998
Parliament corrected the defect in the provision by enacting the Adoption Matters Amendment
Act 56 of 1998 which amended Section 18(4)(d) of the Child Care Act to require:
1. The consent of both parents if paternity has been acknowledged by the father and the
father’s identity and whereabouts are known
2. If only 1 parent has consented to the adoption, a notice must be served on the other
parent, giving the parent the opportunity to:
a. also give or withhold consent
b. advance reasons why his/her consent should not be dispensed with
c. in the case of the father, apply for adoption of the child
3. The notice need not be served if the whereabouts of the parent is not known
4. The notice need only be server on the father of a child born out of wedlock if:
a. He has acknowledged paternity in writing; has entered his particulars in the
child’s birth registration and has ensured that those particulars are correct at all
times
b. The child’s mother at the time of consenting to the child’s adoption confirms in
writing that the child’s father has acknowledged paternity and furnishes
particulars regarding his identity and whereabouts
c. A social worker, within 60 days of the mother having consented or at any stage
before the adoption order is granted, submits a report confirming the father’s
identity and whereabouts
Child Care Amendment Act 96 of 1996

Section 27 of the Child Care Act did not deem certain types of marriages valid. Thus the father’s
consent was not needed for purposes of adoption. Section 10 of the Child Care Amendment Act
96 of 1996 repealed section 27 of the Child Care Act which discriminated against fathers in
polygynous marriages.
Thus for the purposes of the Child Care Act, children born from marriages “concluded in
accordance with a system of religious law subject to specific procedures” are not extra-marital.
Dispensing with parental consent

Section 19 of the Child Care Act stipulates when the consent of the father can be dispensed
with when putting a child up for adoption:
1. The father has failed to acknowledge paternity
2. The child was conceived as a result of incest
3. The father was convicted of rape or assault on the child’s mother
4. The father was, after an enquiry by the children’s court following an allegation by the
mother, found, on a balance of probabilities, to have raped or assaulted the child’s
mother.
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5. The father failed to respond to a notice in terms of section 19A of the Child Care Act
Consent of either parent can be dispensed with if he or she, without good cause, failed to
discharge his or her parental duties with regard to the child.
Maintenance
Both parents have a duty to support their extra-marital child.
The duty is apportioned between them in accordance with their respective means.
Parents’ right to maintenance from extra-marital child

From common law it is clear that extra-marital child must support his mother and her relations.
Some authors maintain that the father may not claim maintenance from the extra-marital child
due to the fact that the father is not related to the child. This is not so: the father does not have
parental authority but is related.
Maintenance on the death of the parent(s)

If either parent dies, the parent’s estate is responsible for the child’s maintenance.
According to Motan v Joosub, if neither parent nor the parent’s estate can support the child,
the duty passes to the child’s maternal grandparents.
This above case:
1. Is unfair, unacceptable and in conflict with common law and public policy.
2. Furthermore, the distinction between the duty of support in respect of legitimate and
extra-marital children violates the extra-marital child’s right to equality before the law
and equal protection and benefit of the law.
3. Constitutes unfair discrimination on the ground of birth
4. Conflicts with the provision of the children’s rights clause which makes the child’s best
interests paramount concern in all matters relating to the child.
In accordance with Motan v Joosub it is also argued that extra-marital children have a duty to
support their maternal grandparents but not their paternal grandparents.
This is unconstitutional on the ground that it violates the right to equality before the law and
equal protection and benefit of the law.
Right to Inherit
Intestate succession
In terms of section 1(2) of the Intestate Succession Act 81 of 1987 extra-marital birth does not
affect the capacity of one blood relation to inherit the intestate estate of another.
Thus: extra-marital children can inherit from both parents and both parents can inherit from
intestate from an extra-marital child.
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Thus: no distinction drawn between legitimate and extra-marital children
Testate succession
People can benefit whoever they want in their wills: thus whoever a parent chooses (legitimate
or extra-marital) can inherit testate.
The position of incestuous children is less clear but the authors submit that they should be able
to inherit testate from both mother and father as children should not be punished for the sins
of their parents.
According to section 2D(1)(b) of the Wills Act 7 of 1953 extra-marital birth “shall be ignored”
when determining a person’s relationship to the testator, i.e. “my children” would exclude
extra-marital children.
Extra Marital Birth and the Constitution

Regarding discrimination in access to the extra-marital child by the father, the appellate division
concluded that the father is not unfairly discriminated against (B v S and T v M).
The question regarding access is always decided on the basis of what is in the best interests of
the child.
If the mother refuses the father of an legitimate child access, he has to approach the court.
According to the Natural Fathers of Children Born out of Wedlock Act, a father may approach
the court for an order granting him rights if it is in the best interests of the child.
The present legal position is open to criticism because:

1. The child’s best interest are not necessarily served by separate rules in respect of
parental authority over legitimate and extra-marital children.
2. If we were to comply with the “best interests” directive, the marital status of the child
has to be irrelevant.
3. The differentiation between the child’s parents amounts to unfair discrimination
against the child on the ground of social origin and birth.
4. The law decided is advance that the child is not entitled to a legal relationship with
both parents which infringes on the child’s right to paternal (not just maternal) care.
From the view of the parents, thus, the position amounts to inequality before the law as well as
unfair discrimination on the ground of marital status, sex and gender:
Discrimination
Some authors argue that mothers are the primary caretakers and that primary responsibility for
child care justifies exclusion of the father’s automatic rights as this conforms to the notion of
substantive/real equality.
Problem with above statement is that:
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1. Sends the message that fathers should not concern themselves with childcare as it isn’t
their job and/or they are incapable or unsuited to it
2. Does not give proper effect to the child’s constitutional right to parental care and is not
in the best interests of the child
The Children’s Draft Bill will confer automatic parental responsibilities and rights on some
categories of fathers of extra-marital children.
From the mother’s viewpoint

There is discriminated:
1. On the ground of marital status: She has sole parental responsibility instead of shared
responsibility.
2. On the ground of sex/gender: the law automatically imposes sole child care
responsibilities on her.
From the father’s viewpoint

There is discriminated:
1. On the ground of marital status: he has to approach the court to have rights in respect
of the child, whereas a married man automatically has those rights.
2. On the ground of sex/gender: the law favours mothers instead of fathers because a
mother automatically has parental authority and the father not.
The legitimation of extra-marital children

In terms of section 4 of the Children’s Status Act 82 of 1987 a child is legitimized in all respects
of his parents marry each other at any stage after his birth.
This applies even if the parents could not legally marry each other at the time of his birth.
Section 4 does not retroactively confer rights on the child after the marriage of his parents: thus
he is only legitimated from the date of his parents’ marriage.
The above is, however, in conflict with the Births and Deaths Registration Act 51 of 1992 which
provides for the legitimation of children after birth by saying that “as if such a child’s parents
were legally married to each other at the time of birth.”
An incestuous child can be legitimized if laws regarding forbidden degrees of relationship
change, i.e. the Marriage Act 25 of 1961 made it possible for a widow to marry her dead
husband brother, something which was previously prohibited.
Legitimation by an order of the authorities (legitimatio per rescriptum principis)

In common law the Sovereign could legitimate a child as a favour if one of the parents died
before a marriage could be concluded.
In Potgieter v Bellingan it was held that the above method of legitimation was obsolete.
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The court cannot declare an illegitimate child legitimate: it can only declare a child of a putative
marriage legitimate, but then simply confirms an existing fact since the children born of a
putative marriage are in any event legal.
Legitimation by adoption
A child can be legitimated by adoption . The child becomes the legitimate child of the adoptive
parent, regardless of whether or not the parent is married. Thus if the father of an illegitimate
child adopts it, it becomes legitimate.
Minority
Is one of the most important factors influencing a person’s status.
Only persons with a reasonable understanding and judgment (the ability to understand the
nature, purport and consequences of one’s acts) have the capacity to act.
Youth has a major influence on a person’s power of judgement: thus the law protects young
people by limiting their capacity to participate in legal interaction.
From a legal viewpoint, a young person has neither the intellectual ability nor the experience to
participate independently in legal and commercial dealings before the age of 21.
Because the object of the restrictions on minors’ capacity is to protect them, the restrictions do
not violate the constitutional right to equality, nor do they amount to discrimination on the
ground of age.
Children’s Rights
Section 28 of the Constitution

Children below the age of 18 are afforded special protection by section 28 of the Constitution.
The purpose of Section 28 is to protect children, not their parents.
Section 28 gives every child the right
1. To a name and nationality from birth
2. To family or paternal care, 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.
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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
Section 28(2) prescribes:

1. A child’s best interests are of paramount importance in every matter concerning the
child.
2. Previously the criterion of the best interests of the child was limited to family law
proceedings, but 28(2) indicates that the criterion must be applied in all fields of law.
3. Also submitted that: child’s best interests must outweigh other constitutional rights
unless the infringements on the child’s best interests can be justified in terms of the
general limitations clause in the Constitution
Our courts also hold that the child’s rights to paternal or family care must be taken into account
when sentencing a convicted parent and detaining a parent pending deportation from the
country.
Subsection (b) and (c) of section 28(1)
Subsection (b) defines those responsible for giving care (mainly parents).
Subsection (c) lists “various aspects of the care entitlement”, i.e. the state affording families
access to land, housing, health care, food, water and social security.
Most of the cases dealing with section 28(1) deal with the rights contained in subsections (b)
and (c). The constitutional court’s attitude with regards to the rights contained in these
subsections is as follows:
1. The duty they impose rests primarily on parents and family members
2. The duty passes to the state only if the child’s parents or family members fail or are
unable to provide care to the child
3. The state must, however, create the necessary environment for parents and family
members to provide children with proper care.
According to Government of the Republic of South Africa v Grootboom subsection (b) and (c)
need to be read together. The content of the child’s right to receive care is therefore partly
determined by the socio-economic rights mentioned in subsection (c).
Grootboom also mentions that the child’s rights in terms of (c) must be ascertained in the
context of the socio-economic rights in sections 25(5), 26 and 27 of the Constitution.
25(5), 26 and 27 oblige the state to make available adequate housing, healthcare services, food
and water and social security.
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There is thus an overlap between the child’s rights as in 28(1)(c) and 25(5), 26 & 27: the court
held that this overlap does not create separate and independent rights for children and does
not entitle them to shelter on demand.
United Nations Convention on the Rights of the Child

Above has been ratified by South Africa and must thus comply with the obligation the
convention imposes on the state.
1. The convention only confers special protection on children below 18 years
2. Convention inter alia stipulates that the best interests of the child should be “a
primary” consideration in all actions concerning the child.
3. Children who are capable of forming their own views must be given the right to express
those views freely in all matters that affect them.
4. Their views must be given due weight, taking their age and maturity into account
5. Convention obliges state parties to recognize the common responsibilities of parents
for the upbringing and development of their children.
The legal status of an infans

An infans is a child below the age of 7.
A minor is a child between the age of 7 and 21, but also denotes someone below the age of 21.
Concepts
 There is an agreement (afspraak) if there is consensus between two or more
people, and all are aware of having reached consensus (conscious consent).
 A contract (or obligatory agreement) is an agreement undertaken with the
intention of creating an obligation or obligations.
 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.
 An obligation is a juristic bond in terms of which the party or parties on the one
side have a right to performance and the party or parties on the other side have a
duty to render performance. Contracts, delicts and various other causes (e.g.
undue enrichment) give rise to obligations.
 Performance is human conduct which may consist of a commission or an omission.
 A civil obligation is a legally enforceable obligation, while a natural obligation is
unenforceable. These two concepts are explained in more detail in Cronje. &
Heaton on 88. You should study this section.
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 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.
 A multilateral contract is a contract in terms of which more than one party
undertakes 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.
 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.
Suppose Peter sells his bicycle to Chris for R200. Both Peter and Chris undertake to
render some performance, and both are simultaneously creditor and debtor. Peter
is debtor as regards the delivery of the bicycle and creditor as regards the payment
of R200. Chris is debtor as regards the payment of R200 and creditor as regards the
delivery of the bicycle
Capacity to act
An infans cannot:
1. have any capacity to act and cannot conclude any juristic act.
2. enter into any agreement whatsoever, not even one that confers only rights and
imposes no duties
3. act as somebody’s agent because the law attaches no consequences to his/her
expression of will
4. conclude a juristic act even with the assistance of his guardian: his guardian has to act
on his behalf
5. accept a donation: the court, the master or the guardian must accept the donation on
the infans’ behalf, even if it is the infans’ parent or guardian: the parent or guardian has
to accept the donation on the infans’ behalf and it must be made clear that the
donation is being accepted on his behalf
Even if there is agreement between an infans and another person the law ignores it.
An infans’ act can however constitute a juristic act, giving rise to legal consequences, i.e.
destroying another’s property
Once a guardian enters into an agreement on the infans’ behalf it is on the infans that rights are
conferred and duties imposed: the infans has legal capacity and can thus have rights, duties and
capacities.
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Certain transactions, i.e. an engagement or an insurance contract on his life, cannot be
concluded by the guardian on the infans’ behalf.
An infans does not have locus standi in iudicio and cannot be a party to a lawsuit even if
assisted by his guardian: the guardian must always litigate for and on behalf of him.
Delictual and Criminal Liability

Because an infans is completely unaccountable he can never be criminally or delictually liable
where liability is based on fault.
He may, however, be liable for delicts not based on fault.
Thus an infans can:
1. be sued under actio de pauperie if he owns an animal and the animal causes damage
2. incur vicarious liability if his employee commits a delict in the execution of his/her
duties
3. be held liable on the ground of undue enrichment or negotiorum gestio as these forms
of liability are not based on capacity to act or capacity to incur delictual or criminal
liability.
The legal status of a minor

Minors between the age of 7 and 18 have limited capacity to act.
Capacity to enter into a contract

The general rule is that a minor can only incur contractual liability if he is assisted by his
guardian when a contract is made.
The minor can, however, enter into a contract without the assistance of his guardian if the
contract improves his position without imposing any duties on him.
Entering into a contract without guardian’s consent
Validity of the contract

1. If a minor enters a contract without his guardian’s consent and the contract imposes
duties on the minor, he is not liable in contract.
2. The obligation created upon the minor is unenforceable (naturalis obligatio).
3. The agreement is however not void, as the other party must honour his part of the
agreement (obligation on him is a civil one (civilis obligatio) which is enforceable).
4. Thus the contract created is only partially valid. Such a contract can be ratified by the
guardian or by the minor himself when he attains majority. Ratification converts the
natural obligation to a civil one which is then enforceable.
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Repudiation or honouring of the contract
1. It is up to the guardian (or the minor when attaining majority) to decide whether to
honour or repudiate the contract: the other party must abide by this and still perform
in terms of the contract.
2. Thus the other party cannot rely on the minor’s minority or on exceptio non adimpli
contractus to avoid his own contractual obligations.
3. Normally, when sued, the minor raises his minority as defence
4. The minor may also take out an order declaring him not contractually liable
5. The minor cannot sue the other party for performance, as he would need his guardian’s
consent to sue and such consent would amount to ratification of the minor’s contract.
6. If the minor has performed in terms of a contract and the contract is repudiated, he
may recover what he has performed: property other than money is recovered by the rei
vindicatio and money by a condictio.
7. As the contract cannot be enforced against the minor, he does not have to apply for
restitutio in integrum.
8. Restitutio in integrum applies if the minor entered into a contract with assistance and
the contract was to his detriment and he has performed in terms of the contract.
The minor’s contractual capacity
Assistance by the guardian

The reason why a minor cannot enter into a contract without his guardian’s consent is to
protect the minor against his own immaturity of judgment. This falls away when a guardian
gives his consent and the minor is then liable ex contractu as if he were a major.
The guardian’s consent can take many forms:
1. The guardian can act on the minor’s behalf
2. The minor can enter into the contract with his guardian’s consent
3. The guardian can ratify the agreement after it has been concluded
4. The guardian’s consent can be given expressly or tacitly:
a. If the guardian raises no objection to a transaction, it can be accepted that tacit
consent was given
b. The guardian will also be taken to have ratified the contract if he allows the
minor to sue the other party for performance in terms of the contract
5. Guardian’s consent may apply to a single transaction or several, i.e. if the guardian
allows their child to conduct their own business
6. The guardian need not have knowledge of each and every term of the contract, but
must be aware of its nature and essential terms
7. Consent obtained through fraud or undue influence is worthless
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8. The guardian is obliged to help the minor when entering into contracts that are to the
minor’s advantage:
a. If the guardian is unwilling or unable to do this, the court may order the
guardian to do so or itself give the required consent
b. The court will also intervene if a guardian’s own interests in a transaction
conflict with the duty to further the minor’s interests or where the guardian’s
consent is insufficient in itself
9. A guardian may not enter into a transaction on behalf of a minor that will come into
operation only after the minor has attained majority.
10. A guardian may not conclude a contract on behalf of a minor in respect of agreements
of a closely personal nature, i.e. antenuptial agreement.
11. A guardian who has consented to a transaction may withdraw consent prior to the
transaction being concluded
Liability of the Guardian

A guardian does not incur personal liability in respect of the minor’s contract, regardless of
whether he assisted the minor or acted on the minor’s behalf.
A guardian can be held liable:
1. if the minor acted as his agent
2. if he guaranteed the minor’s performance and the minor does not perform
3. if he bound himself as surety for the minor’s performance and the minor does not
perform
4. on the basis of negotiorum gestio if he is the child’s parent: the parent has a duty to
maintain his children: if he does not perform his duty and it is performed by a third
party, he can be held liable on the basis of negotiorum gestio. Here the guardian’s
liability arises not contractually but quasi-contractually.
Ratification
A guardian my expressly or tacitly ratify a contract the minor initially concluded without the
guardian’s consent.
Ratification validates the contract with retroactive effect.
A guardian cannot ratify a contract he did not initially have the power to conclude on behalf of
a minor.
The minor may also ratify a contract when he comes of age: the contract then becomes fully
enforceable.
Ratification by the minor can take place tacitly or expressly: when deciding if a minor tacitly
ratified a contract, the court considers the minor’s acts and conduct and deduces from this
whether or not the minor had the intention of ratifying the contract.
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If the above happens, and the minor does not know that he is acting as if he is tacitly approving
a contract, the minor’s ratification would be rebutted if his ignorance is reasonable and
excusable.
See also Edelstein v Edelstein.
Statutory exceptions regarding a minor’s capacity to act

There are some exception created by statute which allows a minor incur contractual liability:
1. A minor of 18 years may without consent enter into, vary or deal with a life insurance
policy and pay premiums due under the policy. Any money payable under the policy
must be paid to the minor who can do with it as he wishes.
2. A minor over the age of 16 may be a member of or a depositor with a mutual bank
unless the articles of the mutual bank provide otherwise.
a. The minor may without assistance have full dealings with the bank and deal
with his deposit as he sees fit.
b. He has all the privileges and obligations of a normal member, except that he
cannot hold office in the bank.
3. Deposits in the Postbank and national savings certificates in the name of a minor of any
age may be repaid to him
Minor’s contractual capacity: Misrepresentation
(It must be noted that where a misrepresentation occurs when both parties are majors
restitution could be permissible)
If a minor misrepresented himself as a major, the general view is that the minor should be held
liable.
There is, however, no consensus on what the basis for this liability should be. There are 2
possibilities:
1. The minor can be held liable on the basis that the contract he concluded is enforceable,
i.e. the minor can be held contractually liable
2. The minor can be held liable on the basis of the delict (or rather wrongful act) he
committed, namely misrepresentation, i.e. the minor can be held delictually liable
Contractual Liability
Those who advocate contractual liability advance the following as reasons why:
1. Roman-Dutch writers expressly denied the restitutio ad integrum to a minor who
misrepresented himself as a major.
2. As restitutio ad integrum presupposes a binding contract it is implied that there is a
binding underlying contract.
Cronje & Heaton do not support this:
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1. Restitutio ad integrum’s proper application is for contracts the minor concluded with
the necessary assistance and contracts the guardian concluded on the minor’s behalf
where the contract is binding.
2. Roman-Dutch practise, however, was also to apply for restitutio ad integrum in cases
where a minor had entered into a contract without the necessary consent.
3. Cronje & Heaton maintain that in these circumstances the minor was not liable at all
and that there was no need to resort to restitutio ad integrum as the minor could have
simply recovered the performance already rendered in terms of the unenforceable
contract.
4. Thus the invocation of restitutio ad integrum where it was not necessary does not
mean that the minor is contractually liable for misrepresentation.
The second argument regarding why a minor should be held contractually liable for
misrepresentation goes as follows:
1. The authors rely on estoppel
2. If the minor misrepresents himself as a major and another person enters into a contract
on the basis of this misrepresentation, the minor cannot raise his minority as a defence.
3. Consequently the minor is held liable on the contract as if he was a major when the
contact was concluded
4. The other party can then simply sue the minor and by means of estoppel frustrate any
reliance of the minor on his minority as defence
Cronje & Heaton do not support this:
1. Holding the minor liable would defeat the object of limiting a minor’s capacity to act
2. The fact that the minor acted fraudulently does not mean he has the necessary ability
to judge and that the protection of the law is thus not needed.
3. In addition, holding the minor liable would mean that a minor could change their status
and attain full capacity to act by committing a misrepresentation
See also Louw v MJ & H Trust (Pty) Ltd.
Delictual Liability
Minors can be held liable on a delictual basis for misrepresenting themselves as majors.
Claim of majority
If a minor openly claims to be a major, he is definitely misrepresenting himself.
The other contracting party does not need to enquire into the truth of the statement and he
may accept the assertion unless he has good cause for believing that he is dealing with a minor.
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Tacit claim of majority
Here the issue is whether the minor’s conduct amounts to misrepresentation.
1. If the minor knows the other party thinks he is a major and does nothing to remove the
misconception, he commits a misrepresentation.
2. For the minor to be held liable he must be old enough to be mistaken for a major.
Final word
The minor will be held liable only if:
1. He made a misrepresentation regarding his or her majority or capacity to act
2. The other party suffered a loss.
3. The misrepresentation was the cause that induced the other party to enter into a
contract with the minor.
Minor’s contractual capacity: Undue enrichment

Undue enrichment: Person A is unduly enriched at the at the cost of expense of person B if he
or she (A) gains a patrimonial benefit at the expense of B without there being a recognised legal
ground justifying the transfer of the benefit.
Calculation of enrichment
Must know well!
The enrichment claim is limited to the lesser of:

1. The amount by which the enriched person’s estate remains enriched at the date of the
institution of the action
2. The amount by which the other person’s estate remains impoverished by that date.
Calculation:
1. The moment on which the calculation must be based is that moment when the other
party institutes his or her claim.
2. The amount by which the minor's estate is increased owing to the performance of the
other party must be calculated. Here we look only at price the actual value of the
performance and ignore the contract price.
3. The amount by which the estate of the other party is decreased as a result of the
performance must be calculated. Here again look only at the actual value of the
performance and not at the contract price.
4. You can now determine two amounts. The minor is liable for the lesser of the two.
5. If the minor has lost the performance he or she received or its value has decreased, or
if he or she has sold it, the following rules apply:
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a. If the minor has lost the performance he or she received (or it has been stolen),
the other party is not entitled to anything.
b. If the value of the performance has decreased, the minor is liable only for the
decreased value.
c. If the minor sold the performance before the action was instituted, he or she
remains liable for the purchase price received, depending on how he or she
applied the proceeds thereof.
d. If the proceeds are still in the minor's possession on the date of institution of
the action, he or she is liable for as much of it as still remains at the time of
institution of the action.
e. If the minor has used the proceeds for necessaries, he or she is still liable for the
purchase price of these necessaries, even if nothing remains of them.
Necessaries include food, clothing, accommodation and medical treatment. The
reason for the minor's liability in this case is that he or she would have had to
purchase the necessary items out of his or her own estate in any case.
Therefore, by saving on these expenses, the minor is unduly enriched at the
expense of the other party.
f. If the minor purchased luxury items with the proceeds, he or she is liable for the
value of whatever still remains.
Benefit Theory
Benefit theory was introduced by Nel v Divine, Hall & Co. where it was held that if a contract as
a whole is to a minor’s benefit, the minor is contractually liable.
The courts applied this incorrect decision consistently until Edelstein v Edelstein authoritatively
rejected it:
In Edelstein v Edelstein it was held that a minor is not contractually liable whenever a contract is
in a vague and general way to his advantage, but that he may be held liable ex lege for the
amount by which his estate was unduly enriched by the transaction.
Thus the benefit theory is no longer of application in today’s law.
Minor’s contractual capacity: Restitutio in integrum

Restitutio in integrum: is an extraordinary legal remedy whereby a minor can escape liability if
1. he contracted with the assistance of his guardian (or the guardian contracted on his
behalf) and
2. the contract was prejudicial to the minor at the moment it was made.
The purpose of the restitution is to restore the status quo ante: complete restitution from both
sides must take place, putting the parties in the position they would have been had they never
entered into the contract.
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Each party must:
1. Return everything received under the contract
2. The proceeds or any advantage derived from the contract
3. Compensate the other for any loss suffered as a result of the contract
Restitution not only affords a cause of action, but can also be used as a defence when a minor is
sued for performance in terms of a prejudicial contract.
Restitution to a minor differs from other cases of restitution:

If does not release a person who has bound himself as surety for the minor from his obligations,
i.e. a parent would still have to meet the obligations he/she stood surety for.
Restitutio in integrum prescribes at most three years after the date upon which the minor
became a major, but cannot occur within the first year after the minor became a major.
When can restitutio be used?

Restitutio in integrum:
1. is only necessary if the minor is contractually liable.
2. is available even if the court consented to the minor’s contract, as the court could have
been misled or erred.
3. can be applied for whenever a minor has suffered prejudice, i.e. not only for contracts
When can restitutio not be used?

Restitutio in integrum can not:
1. be relied upon to set aside a marriage or escape delictual or criminal liability
2. be used by a minor who misrepresented himself as a major or in some other fraudulent
manner persuaded the other party to enter into a contract
3. be used if the prejudice arose at a later date
4. be used if, after attaining majority, the minor ratifies the contract
Getting restitution
1. The minor may, with the assistance of his guardian, apply for restitution before
attaining majority.
2. The guardian may also apply for restitution on the minor’s part.
3. If the guardian fails to assist, a curator ad litem may be appointed to assist the minor
4. The minor can wait to attain majority and institute the action himself
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Minor’s capacity in terms of other juristic acts
Other agreements
The minor can enter into other agreements which benefit him without his guardian’s
assistance, i.e. the extinguishing of his debt to someone else, but may not enter into
agreements that encumber him without his guardian’s assistance.
If the minor performs without his guardian’s assistance, the performance is invalid and he can
recover whatever he performed.
If a minor entered into a contract with assistance, but performed without assistance, he may
not recover his performance: as guardian consented to contract it is taken that he also
consented to the minor’s fulfilling the contract by rendering performance.
A real agreement by which a right is transferred to a minor is valid even if the minor acted
without assistance. A minor cannot, however, transfer a real right to another person without
the assistance of his guardian.
Minor’s capacity to make and witness a will

Any person over may from the age of 16 make a will and dispose of his property as he pleases.
A witness to a will must be at least 14 years old.
Capacity to marry
Circumstances under which a minor may marry:
1. If both a legitimate minor’s parents are alive , the must both consent even if the are
divorced, unless
a. the court orders otherwise, or
b. sole guardianship has been granted to one of his parents
2. If one of the parents is deceased, the surviving parent’s consent is sufficient
3. If the minor is extra-marital only the mother needs to consent, unless
a. the father has obtained guardianship by a court order
4. An orphan for whom a guardian has been appointed must get the guardian’s consent
5. For a boy under 18 and a girl under 15 the consent of the Minister of Home Affairs in
needed: children below the age of puberty cannot marry at all, thus the Minister’s
power to consent is limited to girls between 12 and 15 and boys between 14 and 18.
6. If one or more of the minor’s parents is absent or incompetent to consent, consent may
be granted by the commissioner of child welfare.
a. The commissioner must also determine whether it is in the minor’s interest to
enter into a prenuptial contract.
b. If it is, the commissioner must ensure that this is done before consenting and
assist the minor in its execution
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c. If the commissioner refuses his consent, the minor may approach the high court
for consent.
7. The minor may also approach the high court if his parents / guardian refuses consent.
The court may grant consent if:
a. it is of the opinion that the parent or guardian’s refusal is without adequate
reason, and
b. contrary to the interests of the minor
8. If the court consents, it may also order that a particular matrimonial property system
must apply in the marriage. If an antenuptial agreement must be entered into, the
court can appoint a curator to assist the minor in this regard.
9. A minor who has been married before or has been declared a major requires no
consent
Effect of absence of consent to marry
Section 24 of the Matrimonial Property Act 88 of 1984

Section 24 of the Matrimonial Property Act 88 of 1984 governs the patrimonial consequences
of a marriage entered into by a minor without consent.
Section 24(1) provides that if the marriage is dissolved due to lack of consent, the court may
make any order regarding the matrimonial property as it sees fit.
Section 24(2) provides that if the marriage is not dissolved, the patrimonial consequences are
1. the same as if the minor was of age when the marriage was entered into, and
2. any ante nuptial contract in terms of which the accrual system is included and which
was executed with a view to the marriage, is deemed to be valid
Lack of consent of Minister of Home Affairs

1. If the consent of the Minister of Home Affairs was needed but was not obtained, the
marriages is null and void
2. The Minister may, however, declare the marriage valid ex post facto.
Lack of consent of parent(s)

1. If the consent of the parent / guardian / commissioner of child welfare was needed but
was not obtained, the marriage is voidable. It may be set aside by the court on
application by:
a. The parents or guardian before the minor attains majority and within six weeks
from the date on which they became aware of the existence of the marriage, or
b. The minor before attaining majority or within 3 months thereafter
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Capacity to consent to medical treatment and operations
Over 14 years: minor may consent to any medical treatment of himself or his child.
Over 18 years: may consent to an operation, including sterilization
Pregnant of any age: may consent to termination of the pregnancy
Capacity to hold offices and perform functions
They Can’t
Minor cannot be a director of:
1. a company
2. a mutual bank
3. a trustee of an insolvent estate
4. executor of a deceased estate (submitted by Cronje & Heaton: not decided)
Emancipated minors can also not hold the above offices.

Minors cannot be appointed as someone else’s guardian (they are obviously the guardian of
their own children)
They Can
Minors declared majors under the Majority Act or minors who attain majority through
marriage, however, can hold the above offices.
A minor can act as someone else’s agent without the consent of his guardian: an agent does
not bind himself but the principle
A minor has limited capacity to litigate (locus standi in iudicio) in most private-law lawsuits.
Thus: a minor himself can sue or be sued with his guardian's assistance, or his guardian can take
up the case on his behalf.
If the minor does not have a guardian, he or she must be assisted by a curator ad litem who is
appointed on application by the court.
Anyone who has an interest in this appointment, or a friend or a creditor of the minor, may
make such an application. The minor himself or herself can make the application if old enough
to be able to understand the procedure.
Exception for private law proceedings: If the court grants a minor venia agendi the minor:
1. Has full capacity to litigate
2. Does not require assistance at the proceedings
Exception does not apply to civil cases: minor requires the assistance of his guardian.
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In criminal proceedings the guardian’s assistance is not needed.
Capacity to incur delictual and criminal liability

To incur delictual or criminal liability, the minor must be accountable.
To be accountable, a person must have the mental ability to:
1. distinguish right from wrong
2. act in accordance with such an appreciation
Minors 7 - 14: Rebuttably presumed to be not accountable for their crimes and delicts
Minors 14 – 21: Rebuttably presumed to be accountable for their crimes and delicts
Termination of minority
Attainment of the prescribed age

Attainment of majority has been fixed by statute at the age of 21 years.
SA Law Commission recommends lowering it to 18.
Majority ensues at the beginning of the day of the person’s 21 st birthday, unless it is in the
person’s interest that it be extended to the exact moment of his birth.
Marriage
A minor who enters into a valid marriage before his 21st birthday becomes a major.
If the marriage is dissolved by death or divorce before the person’s 21 st birthday, minority does
not revive.
A void marriage does not terminate minority and the annulment of a voidable marriage
restores a minor’s limited capacity with retrospective effect.
Venia aetatis and release from tutelage

It is submitted by Cronje & Heaton that the Age of Majority Act 57 of 1972’s declaration of a
minor to be a major under the Act has replaced venia aetatis and release from tutelage in
practise.
Distinction between these two legal concepts lies in the authority which granted the
concession. In the case of venia aetatis it was granted by the executive authority (sovereign),
and in the case of release from tutelage it was granted by the judiciary (courts).
Venia aetatis
Venia aetatis: sovereign grants minor a concession to act as a major.
Effect: makes a minor a major in the eyes of the court with the exception that the minor cannot
alienate immovable property or burden it with a mortgage unless this capacity was expressly
conferred.
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The Age of Majority Act 57 of 1972 repealed a Free State proclamation providing for venia
aetatis but did not expressly revoke venia aetatis itself.
Our courts have not expressly decided whether venia aetatis is obsolete.
Release from tutelage

Refers to the authority the courts had, to confer full capacity to act, on a minor.
The Cape Province courts decided that they had the power to grant orders releasing minors
from tutelage.
Even though release from tutelage had the same effect as venia aetatis, it was held that the
court was merely emancipating the minor in its capacity as upper guardian of all minors.
Age of Majority Act 57 of 1972

Cases: Botes, Akiki, Smith
Anyone 18 years or older can apply to the high court to be declared a major.
Some authors submit that the requirement of necessity or desirability in the interest of the
applicant should be what the court bases its decision upon.
Since the inception of the act, however, the court has not granted any orders and adopts a very
strict approach that seem to require more than the requirements of necessity or desirability of
the applicant.
The application
Application must be in the form of a notice and must be supported by an affidavit stating:
1. The applicant’s full names, ordinary place of residence and date of birth
2. Particulars which allow the judge to decide whether the applicant is fit and proper to
manage his own affairs
3. Whether the applicant lives with his parents and whether he intends to continue living
with them
4. Whether the parents or guardian supports the application
5. Full particulars of any immovable property of which the applicant is the owner or will
probably become the owner
6. Full particulars of any immovable property of which the applicant is the owner and
which is subject to fideicommissum, usufruct or similar right, or which is subject to the
control of the master, a tutor, curator or administrator
7. Any other relevant information which enables the court to judge whether it is
necessary or desirable in the interests of the applicant to grant the application
Orders the court can make

After considering the application, the court may:
1. Grant the application
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2. Refuse or postpone the application
3. Issue a rule nisi with directions as to its service
4. Order further evidence to be produced
5. Make whatever order it considers just in respect of costs
The effect of the application

If the court declares the applicant a major, he is deemed to have attained the age of majority
for all purposes: thus the court can make no conditional order or withhold any of the normal
incidents of majority.
It is submitted by the Cronje & Heaton that the Act should have allowed the court to make
conditional orders.
Emancipation
Cases: Dickens v Daly, Watson v Koen
Emancipation: a minor is emancipated if his guardian grants him freedom independently to
enter into contracts.
Can be compared to when a minor performs a valid juristic act with the assistance of his
guardian: for this, the guardian consents to one act, for emancipation the guardian consents to
a wide variety of acts.
Can only be effected by express or implied consent: carelessness does not result in
emancipation.
The onus of proving emancipation rests on the person alleging that emancipation has taken
place.
Emancipated minor’s rights and capacity to act

If a minor is emancipated he incurs liability like a major.
Effect on his capacity to act has not authoritatively been decided: the issues is whether the
minor’s capacity to act extends beyond transactions in connection with the minor’s trade.
Submitted by Cronje & Heaton that the degree of legal independence acquired depends on the
circumstances of the case: if a parent gives the minor “complete freedom of action” the minor
is emancipated for all intents and purposes; minor’s capacity to act would be restricted if
parent only emancipated him for the purpose of a particular business.
Even if a minor is emancipated he has available as a defence and action restitutio in integrum.
Unclear whether emancipated minor has locus standi but submitted by the C&H that it is wrong
to assume that he has locus standi in all transactions relating to his emancipation. Courts seem
to assume that an emancipated minor has locus standi in iudicio.
Tacit and express emancipation

Previously, in common law, a distinction was drawn between tacit & express.
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This was later supplanted by venia aetatis.
Tacit: occurs where a minor lives apart from his parents and manages his own undertaking
Express: A declaration is drawn up before the court that the parent or guardian emancipates his
child from parental authority.
At common law tacit emancipation was a means of terminating minority which is different from
today: only consequence today is that minor can enter into contracts independently.
Submitted by C&H that Age of Majority Act 57 of 1972 has not repealed the institution of tacit
emancipation as emancipation does not confer full majority status.
Who can emancipate a minor?

1. At common law the father could emancipate his child
2. At common law a mother could grant it if:
a. The child was born out of wedlock
b. She had sole guardianship
c. Sole guardianship passed to her on the father’s death
3. At common law, if the mother had custody and the father guardianship it was still the
father who had to emancipate
4. According to Guardianship Act 192 of 1993 it seems that now whoever has
guardianship has the right to emancipate a child
5. Unclear whether minor is emancipated if one parent accedes and the other refuses
6. If the minor has no parents, his legal guardian can emancipate him
7. Also unclear whether when once granted the guardian can revoke emancipation: C&H
of the opinion that it is possible, but in Cohen v Sytner it was deemed irrevocable.
Diverse factors which affect status
Mental Illness
Capacity of the mentally ill person

The fact that a person has been declared mentally ill or is detained in an institution does not
directly affect his or her status. The question is whether the person is mentally ill for purposes
of private law. If the person is indeed mentally ill for these purposes, he or she has no capacity
to act or litigate whatsoever.
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Definition of mental illness
According to the Supreme Court of Appeal (Pheasant v Wayne 1922 AD 481 and Lange v Lange
1945 AD 332), a person is mentally ill for purposes of private law if either
1. he or she cannot understand the nature and consequences of the transaction he or she
is entering into, or
2. 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
Proving mental illness

The absence or presence of mental illness is a question of fact which is usually determined in
the light of medical evidence presented to the court.
Legal status of a mentally ill person

Mental illness affects a person's legal status because the law attaches no consequences
whatever to the expressions of will of a mentally ill person. Thus a mentally ill person has
absolutely no capacity to act or litigate, his curator must act completely on his behalf.
All juristic acts a mentally ill person enters into are invalid unless they were performed during a
lucidum intervallum. The moment which is of importance in judging whether or not the juristic
act is valid is that moment at which the juristic act is entered into.
Certification of mental illness

Whether or not a person has been declared mentally ill does not determine whether or not he
has capacity to act: legal position is determined by whether person was actually mentally ill at
the time which the transaction was entered into.
Thus, certification of mental illness merely shifts the burden of proof:
1. An uncertified person is deemed normal until the opposite is proved,
2. A certified person is deemed mentally ill until the opposite is proved.
Transactions of a mentally ill person

1. A mentally ill person cannot enter into any transactions even if he acquires only rights
and the other party incurs only duties
2. Any transactions entered into are void and cannot be ratified
3. Transaction remains void even if person he was dealing with was unaware of the
mental illness
rd
4. Therefore a bona fide 3 party can not insist on the transaction being completed
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Liability of a mentally ill person
1. A mentally ill person can be held liable for an action based on undue enrichment
2. Can also be held liable on the basis of negotiorum gestio.
Above liabilities are possible because they are not based on contract and capacity to act.
As a mentally ill person cab have neither intention (dolus) nor negligence (culpa) he is not
responsible for his crimes and delicts.
Marriage of a mentally ill person

1. A marriage is not automatically dissolved due to mental illness of one of the spouses,
but according to the Divorce Act 70 of 1979 mental illness without reasonable prospect
of cure is grounds for divorce.
2. In a marriage in community of property a judge may suspend the mentally ill spouse’s
power to deal with the estate to protect the other spouse’s interest in the joint estate.
3. According to the Matrimonial Property Act 88 of 1984, if the sane spouse convinces the
court that the insane one’s actions is prejudicing or probably will prejudice his/her
interest in the joint estate, the immediate division of the estate will be ordered.
4. Point (3) counts for marriages out of community, profit and loss subject to the accrual
system as well, where the accrual will be immediately divided.
Parental authority of a mentally ill person

1. Mental illness does not automatically terminate parental authority
2. The court may however make an appropriate order in respect of custody and
guardianship of the person’s children or interfere in the exercise of parental authority if
it is in the children’s best interest.
General
The running of prescription against a person cannot be completed while he is mentally ill
There are numerous offices a mentally ill person cannot hold.
Appointment of a curator
Curator bonis: looks after the mentally ill person's estate and supplements his or her capacity to
act.
Curator ad litem represents a mentally ill person's interests in legal proceedings.
Curator personae cares for the mentally ill person's person (body), either generally or for a
specific purpose: entails a serious curtailment of a person’s rights and freedoms and is not done
lightly.
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It is important to note that the mere fact that a person has been declared mentally ill, and that
a curator has been appointed to administer his or her estate, does not mean he or she loses all
capacity to act
Limitations of a curator
A curator can not:
1. perform acts that are considered of a too personal nature, i.e. institute an action of
divorce on behalf of a mentally ill person
2. make a will
3. exercise paternal authority on behalf of a mentally ill person
Mental Health Act 18 of 1973

For the purposes of the Mental Health Act 18 of 1973, a "patient" means a person who is
mentally ill to such a degree that it is necessary that he or she be detained, supervised,
controlled and treated, and includes a person who is suspected of being or is alleged to be
mentally ill to such a degree.
In terms of the Act a person may be treated and admitted to an institution voluntarily or as a
result of a reception order.
If someone suspects that a person is mentally ill, he or she may submit a written statement to a
magistrate in which he or she indicates the reasons for the application, and his or her
relationship to the person. In very urgent cases the application may be made to the
superintendent of a mental health institution. The magistrate or superintendent will then
consider the application and appoint two medical doctors to examine the patient. The
magistrate may also order that the person be placed in an institution for a period of not more
than 42days. This order does not affect a person's status, but only his or her freedom of
movement.
The superintendent of the institution to which the patient is admitted must examine the
patient and report to the official curator ad litem concerned, who has to forward the report to
a judge of the high court. The judge considers this report. He or she may then make an order
either for further detention, or for the discharge of the patient, or he or she may refer the
matter for trial. A curator bonis may be appointed for the patient.
Mental Health Care Act 17 of 2002

Mental Health Care Act refers to "mental health care user" instead of “patient”.
A mental health care user is
1. a person receiving care, treatment and rehabilitation services or
2. using a health service at a health establishment aimed at enhancing the person's
mental health status.
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Mental Health Care Act distinguishes between different categories of persons requiring mental
health care on the ground of whether or not they submit to mental health care and admission
voluntarily.
Involuntary care, treatment and rehabilitation services
1. may be provided only if the head of a health establishment approves a written
application for the provision of such services.
2. The head of the health establishment must have the person examined by two mental
health care practitioners.
3. He may only grant the application if both practitioners agree that involuntary services
are needed.
4. The person is then referred for a 72-hour assessment period.
5. After the assessment the person must immediately be discharged unless the head of
the establishment is of the opinion that his or her mental health status warrants
involuntary commitment.
6. If the head is satisfied that involuntary commitment should occur, he or she must
submit a written request to the Mental Health Review Board.
7. If the Mental Health Review Board grants the request, the matter must be referred to
the high court.
8. If the Mental Health Review Board denies the request the person must be discharged.
9. After considering all the information, the high court may either order the person's
immediate discharge or his or her further hospitalisation.
10. If necessary, an administrator (who is similar to the curator bonis which the common
law and the Mental Health Act 18 of 1973 provide for) may be appointed to care for
and administer the person's financial affairs.
Rights of mental health care users

The Mental Health Act 18 of 1973 was often criticised for failing to protect the rights of
mentally ill persons. The Mental Health Care Act 17 of 2002, on the other hand, places a great
deal of emphasis on the rights of mental health care users.
The Act, inter alia, contains a separate chapter setting out specific rights and duties in respect
of mental health care users. These rights and duties operate over and above the rights other
laws confer on mental health care users. Whenever these rights or duties are exercised or
performed regard must be had to the mental health care user's best interests.
Rights can include:
1. Right to representation
2. Confidentiality
3. Having their person, human dignity and privacy respected
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4. Being provided with care, treatment and rehabilitation services that improve their
mental capacity to develop to full potential to facilitate their integration into
community life
Care, treatment and rehabilitation

Care, treatment and rehabilitation services:
1. may not be used as punishment
2. may not be used for the convenience of other people
3. must be proportionate to the mental health care user’s mental health status
4. may intrude only “as little as possible to give effect to the appropriate care, treatment
and rehabilitation”.
Except in urgent cases the patient must be informed of his rights prior to the administration of
any care, treatment and rehabilitation services.
Everyone providing these services must take steps to ensure that mental health care users are
protected from
1. exploitation
2. abuse
3. degrading treatment
4. forced labour
Discrimination in the Act

Act:
1. prohibits unfair discrimination on the ground of the person’s mental health status
2. provides that any determination concerning a person’s mental health status must be
based solely on factors relevant to his mental health status and not
a. socio-political status
b. economic status
c. cultural background
d. religious background, or
e. affinity
Inability to manage one’s own affairs

Court can appoint a curator bonis for anyone who, owing to some or other physical or mental
disability or incapacity, is not capable of managing his or her own affairs.
Applies to persons who are, for example, deaf and mute, blind, senile, paralysed or seriously ill.
The fact that a curator has been appointed for such a person does not result in the person
losing his or her capacity to act altogether.
The circumstances have to be considered to decide whether the person was truly capable of
managing his or her own affairs when he or she performed a certain juristic act. If, at the given
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moment, the person is physically and mentally capable of managing his or her own affairs, he or
she can enter into a valid juristic act.
The curator need only assist such a person in so far as such assistance is necessary, that is if the
person, while performing the juristic act, is not capable of managing his or her own affairs.
Influence of alcohol and drugs

Intoxication refers not only to the effect of intoxicating liquor, but also to the effect of any drug.
If a person has been influenced to the extent that he or she does not know what he or she is
doing or what the consequences of his or her juristic acts are, then those acts are void (not
voidable).
As regards the degree of intoxication, it is not sufficient that the person is influenced in such a
way that it is merely easier to persuade this person to conclude the contract, or that this person
is more willing to conclude the contract; the person must be influenced to such an extent that
he or she does not have even the faintest notion of concluding a contract, or of the terms of the
contract. The contract will then be void.
The person who alleges that someone is intoxicated must prove it. Intoxication affects a
person's capacity to act only for as long as the intoxication lasts.
Prodigality
A prodigal is a person who has normal mental ability but is not capable of managing his or her
own affairs, because he or she squanders his or her assets in an irresponsible and reckless way
as a result of some defect in his or her power of judgment or character.
From the decisions of the courts it seems that prodigality normally goes hand in hand with
alcoholism and/or gambling. To protect such people and their families against their prodigal
tendencies, their status can be restricted by an order of the court. Any interested party,
including the prodigal himself or herself, can apply to the court for an order declaring a person
to be a prodigal and requesting a curator bonis to administer his or her assets.
Prodigal legal capacity

The prodigal is limited in terms of commercial dealings and handling finances, i.e. may not be a
director of a company or be a trustee of an insolvent estate.
Prodigal capacity to act

The declaration of prodigality must be coupled by an order restraining the prodigal from
administering his estate in order to deprive him of the ability to act.
The effect of the order is to make the legal status of the prodigal analogous to that of a minor,
i.e. limited capacity to act and may not independently enter into juristic acts by which duties
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are imposed on him. The prodigal can thus enter into transactions with the assistance of his
curator or the curator can act on his behalf.
The curator must honour transactions the prodigal validly concluded before being interdicted
because up till then the prodigal had full capacity to act.
The prodigal may be charged with contempt of court if he enters into a transaction.
The prodigal retains parental authority over his children.
Validity of prodigal’s transactions

Same as a minor:
1. Transactions are voidable at the instance of the curator, who may ratify or repudiate
a. If ratified, it is binding
b. If repudiated, the prodigal may recover from the other whatever has been paid
or delivered to that party
2. Other party may also hold the prodigal liable on the basis of undue enrichment
Misrepresentation by prodigal
If the prodigal misrepresent himself as having full capacity to act, he cannot be held liable
Marriage
Roman Dutch authors disagree on whether a prodigal can get engaged or married, but modern
authors hold that a prodigal can get married without the consent of his curator.
Making of a will
A curator cannot make a will for a prodigal or assist him with making one.
Whether the prodigal himself has the capacity to make a will is unclear: common law would
have it that he can, but as the interdict precludes the prodigal from making any disposition of
his property whatsoever, it is probably safer to obtain permission from the state to make a will.
If the prodigal made a will before being declared as such, the will is valid.
Prodigal capacity to litigate

The prodigal may not embark on litigation without his curator’s consent.
He may, however:
1. Sue unassisted for divorce
2. Apply for an order to have his curator dismissed or the curatorship set aside
Capacity to be held accountable for crimes and delicts

Prodigality does not affect a person’s capacity to be held accountable for crimes and delicts he
commits.
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Constitutional implications of interdiction as a prodigal
C&H submit that the limitations placed on a prodigal are unconstitutional.
The interdict infringes on his right to dignity and privacy.
Insolvency
A person is insolvent if his or her liabilities exceed his or her assets (in other words when the
person has more debts than assets). If the person's estate is sequestrated as a result of this
state of affairs the sequestration affects his or her status.
Legal capacity of an insolvent person

There are certain offices an insolvent person cannot hold, i.e. he may not be the director of a
company or mutual bank or a trustee.
Capacity to act of an insolvent person

When someone is declared insolvent and his or her estate is sequestrated, he or she is divested
of his or her estate, which then vests in the master of the high court until such time as a trustee
is appointed. When the trustee is appointed the insolvent estate vests in the trustee. Even
though the trustee administers the insolvent estate this does not mean that the insolvent loses
all capacity to act.
1. He may still enter into contracts provided he does not thereby purport to dispose of
any property of the insolvent estate.
2. He must, however, get written consent from the trustee if he wants to enter into a
contract that could adversely affect the insolvent estate.
3. He also needs the trustee’s consent to carry on, be employed in or have any interest in
the business of a trader who is a general dealer or manufacturer.
If the insolvent enters into a contract in breach of the above conditions, the contract is still valid
so long
1. the property 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
Other contracts in breach of the limitations are voidable at the instance of the trustee.
Capacity to litigate of an insolvent person

The insolvent does not lose all capacity to litigate when his or her estate is sequestrated. All
civil proceedings by or against the insolvent are stayed (i.e. suspended) until the appointment
of a trustee to act on behalf of the insolvent estate. For the rest, the insolvent retains capacity
to litigate.
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Capacity to be held accountable for crimes or delicts
Insolvency does not affect a person’s capacity to be held accountable for crimes and delicts he
commits.
If he commits a delict after sequestration, however, the compensation must be paid out of
those assets the insolvent acquired after sequestration that fall outside the insolvent estate.
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Law of persons
PVL1501 – Case summaries (unisa prescribed cases)
1. Introduction
With all legal jargons used in cases, first year students often find studying a Judgment a very
daunting task. This package provides a summary of cases which are prescribed for the module
PVL 1501.
It must be noted from the onset that in examinations, students do not get the full marks
because they do not include cases to a given problem type question. Every time you are asked
to substantiate or give authority, you must refer to a case similar to the facts given in the
question.
Below is the recommended structure when summarising a case.
2. The facts of the case

3. The legal question(s)
4. The judgment
5. The reasoning for the judgment
LAW REPORTING
As you may have known by now, South Africa adheres to a Judicial Precedence system this is
easily facilitated by Law reports, these often appear as are identified in abbreviations
The Case name and the year (volume) & (Abbreviation of name of law report) e.g.
 S v Lubasi 2004 (3) SACR 28 (T) SACR:

South African Criminal Law Reports. (Only criminal law cases reported here)
 Molefe v Mahaeng 1999 (1) SA 562 (SCA)

SA: South African Law Reports. (Covers SA criminal, civil & constitutional cases)
 Ex parte Addleson 1948 (2) SA 16 (E)
 SA: South African Law Reports.
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1 EX PARTE BOEDEL STEENKAMP 1962 (3) SA 954 (O)
THE FACTS OF THE CASE
The testator left the residue of his estate to his daughter and to the first generation “wat by
datum van dood in die lewe is”. The testator’s daughter was pregnant at the time of his (the
testator’s) death and subsequently gave birth to Paul Johannes.
The executor to the estate sought a declaratory order on the issue of whether only the children
born at the time of the testator’s death would inherit or if Paul Johannes, born after the death
of the testator, would also be able to inherit.
Curator ad litem for Gerda and Daniel Johannes (the two children already born) held that the
words “wat by datum van dood in die lewe is” is sufficient enough and without ambiguity to
exclude the unborn child from the estate.
Curator ad litem for Paul Johannes was of the opposite opinion stating that there is no evidence
that the testator wished to exclude the unborn child from his will.
The legal questions are:
1. Does the nasciturus have the legal capacity to inherit?
2. Is Paul Johannes (in ventre matris) entitled to a share of the estate?
Judgment
Judge De Villiers R held that the nasciturus should be able to inherit by means of the nasciturus
fiction subject to being born alive and it being to the advantage of the nasciturus. He further
held that Paul Johannes is entitled to share in the estate of the testator in equal amounts to his
mother, brother and sister.
Reasons the judgment
Judge De Villiers R referred to the decision of House of Lords in Elliot v Lord Joicey where the
court held that if the testator’s intentions are not clear, when words as “in lewe” or “gebore”
are used in conjunction with a specific time line and there is no other specific statement
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specifically excluding the child in ventre matris it should be presumed that the testator had no
intention of excluding the child in ventre matris form his/her will.
2. Road Accident Fund v Mtati 2005 (6) SA 215 (SCA)
The facts of the case
A pregnant woman was seriously injured when a motor vehicle collided with her. The accident
was caused by negligence of the driver in question. The pregnant woman’s child (Z) was
subsequently born with brain injuries and mental disability. The father instituted a claim on
behalf of the child against the Road Accident fund.
The Road Accident Fund raised a special plea. It contended that firstly and unborn child is not a
person (legal subject) and is therefore not entitled to compensation and secondly, because an
unborn child is not a person (legal subject) the driver does not owe a duty of care to the unborn
child.
The legal questions
1. Does Z have a claim against the Road Accident Fund for the damages resulting from the
disabilities?
2. Should such an action be allowed by using the nasciturus fiction, or by using the
ordinary principles of delict?
The supreme court of appeal decided that it would be intolerable if our law did not grant an
action for prenatal injuries and that such an action should be based on the law of delict. The
appeal was thus unsuccessful.
Judgment / The reasoning for the judgment
The court held that, according to the ordinary principles of the law of delict, unlawfulness and
damage are separate elements for delictual liability and that the child’s delictual right of action
becomes complete when he/she is born alive. The assertion that the driver of the vehicle did
not owe Z a legal duty because she had not yet been born must be rejected.
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As a result of this judgment, all future claims for prenatal injuries will have to be based on the
ordinary principles of the law of delict and not on the nasciturus fiction. The nasciturus fiction
will still apply to other areas of the law.
3. Christian Lawyers Association of SA V The Minister of Health 1998 (11) BCLR 1434 (T) SA
1113 (T)
The facts
The plaintiffs sought an order declaring the Choice on Termination of Pregnancy Act 92 of 1996
unconstitutional, striking it down in its entirety. The plaintiffs argued that life begins at
conception; therefore termination of pregnancy is in violation of section 11 of the Constitution
of the Republic of South Africa, 1996, which affords everyone the right to life. The defendants
argued that the foetus is not a bearer of rights in term of section 11 of the Constitution.
The legal question
Does the wording of “everyone” or “every person” in the Constitution include an unborn child
(as a legal subject), from the moment of conception?
Judgment/ reasons for the judgment
Judge McCreath held that the question is not one to be answered by medicine but by proper
interpretation of section 11 of the Constitution.
He further stated that if the drafters of the Constitution intended to protect the foetus, specific
reference to the protection of the foetus would have been made in the Bill of Rights, section 28.
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The Transvaal Provincial Division of the High Court held that to afford legal personality to the
foetus would impinge to a lesser or greater extent on the rights to human dignity, life, privacy,
religion, belief and opinion and health care. The court thus concluded that the particulars of the
claim fail to make out a cause of action and the exception must succeed.
4. Christians Lawyers’ Association V Minister of Health 2004 (10) BCLR 1086 (T)
The facts
The plaintiffs challenged the constitutionality of the Choice on Termination of Pregnancy Act 92
of 1996 that allows a pregnant minor of whatever age to independently consent to the
termination of her pregnancy. The plaintiffs sought a declaratory order striking down the
relevant provisions. They alleged that a woman below 18 years of age is incapable of giving
informed consent as required by the Act and that she has to have the assistance of her parents
or guardian when she decides to have her pregnancy terminated. They further alleged that
allowing a minor to independently decide to have her pregnancy terminated violates several of
her constitutional rights, amongst others, having a child’s best interest be of paramount
importance.
The defendant raised the exception that the plaintiff’s particulars of claim do not disclose a
cause of action. The court upheld the exception.
The legal questions
1. Are women below the age of 18 incapable of giving informed consent?
2. Does the Termination of Pregnancy Act 92 of 1996 infringe on the rights of women
wishing to terminate their pregnancies?
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Judgment
Judge Mojapelo J held that the termination of pregnancy is regulated and the act in question is,
does not affront the Constitution. He further held that the right in question is not unregulated
and for that reason he made the following order:
1. The exception is upheld
2. The plaintiff’s claims are dismissed.
The reasons for the judgment.
The court held that due to a distinction made in the act between women capable of giving
informed consent and those women not capable of giving informed consent, is a rational
distinction and is therefore capable of justification. It is therefore not unconstitutional.
The court further held that the plaintiff’s claim that the best interests of the child clause is
infringed upon is unsustainable. The legislative choice opted for in the Act served the best
interests of the pregnant child because it is flexible and accommodates the individual position
of a girl based on her intellectual, psychological and emotional make up and majority.
5. Re Beaglehole 1908 TS 49
The facts
A testator left an amount of money to beneficiary. The executor of the estate had paid the
money to the master of the High Court because the testator could not be traced. The executor
applied for an order of to pay the estate over to him (the executor) so he could pay the money
to the testators remaining heirs. It was alleged that the executor had not been heard from in
over 15 years and therefore is presumed dead. The court refused to issue the presumption of
death.
The legal question
What law system should be applied during the hearing of the case in question?
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The judgment
Judge Innes CJ refused to grant the order of presumption of death when applying Roman-Dutch
law principles which are, is his opinion, the correct system of law to be used.
The reasoning for the judgment
Judge Innes CJ held that in Roman-Dutch law, no prescribed period of being untraceable
constitutes granting an order of presumption of death and the decision is left to the discretion
of the judge.
He further held that more accurate inquiries about the whereabouts of the person in question
could have been made and therefore did not grant the order of presumption of death.
6. Ex Parte Pieters 1993 (3) SA 379 (D)
The facts
The applicant’s father disappeared in 1975. The applicant mother died and left a sum of money
to his (the applicant’s) father. The applicant applied for and order to either a) an order of
presumption of death or b) and order compelling the Master of the High Court to effect
payment to him and his siblings, subject to them providing security. There was no evidence that
would indicate that the applicant’s father is possibly dead, except his age (73). The court did not
issue the presumption of death but authorised the Master of the High Court to distribute the
money equally between the applicant and his siblings without the necessity of providing
security.
The legal question
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Under what circumstances will the court grant an order of presumption of death?
The judgment
Judge Alexander J held that no presumption of death will be ordered because the applicant’s
argument is not strong enough to order a presumption of death. The Master is authorised to
distribute the amount of R6148.14 equally between the applicant and his siblings.
The reasoning for the judgment
The court held that, taking all the known information into account, the information is not
enough to presume the person in question as dead. Judge Alexander J referred amongst other
cases to Re Beaglehole and held that he knows of no rule which would require to court to
presume death only on the lapse of years.
7. J V Director General, Department of Home Affairs 2003 (5) BCLR (CC)
The facts
One party to a same-sex life partnership gave birth to twins who had been conceived via in vitro
fertilisation. The ova of the first applicant were used with donor sperm. Both parties wished to
be registered and recognised as the twins’ birth-mothers. The Births and Deaths Registration
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Act 51 of 1992 only made provision for one male and one female parent, thus the first applicant
could not be registered as the twins’ parent. The applicants approached the Durban High Court.
The court inter alia ordered the Director-General of Home Affairs to register the second
applicant as the twins’ mother and the first applicant as the twins’ parent. The Durban High
Court further declared section 5 of the Children’s Status Act 82 of 1987 unconstitutional. The
applicants approached the Constitutional Court for confirmation of the decision in question.
The Constitutional court confirmed the unconstitutionality of section 5 of the Children’s Status
Act 82 of 1987.
The legal question
Is section 5 of the Children’s Status Act 82 of 1987 unconstitutional?
The judgement:
The Constitutional court held that section 5 of the Children’s Status Act 82 of 1987 is
unconstitutional and made the following order:
i. Section 5 of the Children’s Status Act 82 of 1987 is declared to inconsistent with the
Constitution to the extent that the word “married” appears in that section and to the extent
that the section does not include the words “or permanent same-sex life partner” after the
word “husband” wherever it appears in that section.
ii. In section 5 of the Children’s Status Act 82 of 1987 the word “married” is struck out
wherever it appears in that section.
iii. In section 5 of the Children’s Status Act 82 1987 the words “or permanent same-sex life
partner” are read in the after the word “husband” wherever it appears in that section.
iv. The words in subsection 5(1) (a) “as if the gamete or gametes of that woman or her
husband were used for such artificial insemination” are struck out.
The reasoning
The court held that the discrimination was unfair with regards to gays and lesbians and
therefore amended section 5 of the Children’s Status Act 82 of 1987 accordingly.
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8. M V R 1989 (1) SA 416 (O)
The facts
The applicant and the respondent had sex on a regular basis. The respondent alleged that she
was a virgin at the time she and the applicant had had sex on a regular basis. The applicant
denied this and said she (the respondent) had another boyfriend. The respondent denied this.
In January 1979 the respondent informed the applicant that she was pregnant. The applicant
subsequently paid maintenance for eight years. The respondent informed the applicant that
she applied for an order of an increased amount of maintenance from the applicant. The
applicant applied for paternal testing and the respondent opposed this application. The
respondent, in the mean time, married R and the child, S, accepted and loved R as his/her
father. The respondent and R planned on telling S, during the next year, that the applicant is
his/her father. The court felt that it was crucial for the child’s development and happiness that
clarity in this matter be reached.
The legal questions are:
1. Is there, in this particular case, need for the court to intervene as “oppervoog” of
children.
2. Is it within this court’s jurisdiction to compel the mother to subject herself to blood
tests?
The Judgment
Judge Kotze R held that the court has to intervene in this particular case because it would be to
the advantage of the child in questions. He further held that the court could compel the
respondent to go for blood tests, once again, because it would be to the advantage of the child
to know who is his/her father.
The reasoning
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Judge Kotze held that compelling a man that is not the father of the child to pay maintenance is
not an advantage to the child that should be considered by the court. He further held that it
would be an advantage to know who the real father of the child it, before the respondent told
the child that the applicant is his/her father. Judge Kotze ruled that the mother has to go for
the blood tests and she should also have to child go for the blood tests in order to clarify if the
applicant is the father of the child.
9. S v L 1992 (3) SA 713 (E)
The facts
The appellant alleged the respondent to be the father of her child. The respondent had paid
maintenance from time to time but never alleged that he was the father of the child. He
admitted to having intercourse with the appellant at the time the child could have been
conceived, but contended that he was not the only mad who had done so. The appellant
applied to the maintenance court for an increase in maintenance to be paid by the respondent.
The respondent opposed the application and requested the appellant to submit herself and the
child to blood tests in order to establish whether the respondent was indeed the child’s father.
The applicant refused. The respondent applied to the high court for an order compelling the
appellant to submit herself and the child to medical testing. The order was granted, but the
appellant successfully appealed successfully to the full bench.
The legal questions
1. Can the court compel the woman to submit herself and the child to blood testing?
2. Should the respondent have approached the Supreme Court for an order compelling the
mother to submit herself and the child to blood testing?
The judgment
The appeal was successful - the mother was not compelled to submit herself and the child to
blood testing. Erasmus J further held that the respondent should not have approached the
Supreme Court for an order to compel the appellant to submit herself and the child to blood
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testing. Erasmus J held that respondent should have remained in the maintenance court and
there adducted proof of the appellant’s refusal to submit herself and the child to blood testing.
The reasoning
The Supreme Court held that the respondent could not prove, on a balance of probabilities that
submitting the child to blood testing would be to the advantage of the child. The child knew she
was illegitimate and accepted the respondent as her father. The appellant felt it would cause a
feeling of insecurity by the child. The Supreme Court held that they, as upper guardians of
minors, do not have the authority to intervene with the custodian parent’s decision.
The court further held that they (the Supreme Court) should not lightly intervene in the
proceedings of another court, in order to grant a party procedural remedy which it does not
have in terms of the lower court’s rule of practice.
10. LB v YD 2009 (5) SA 463 (T) and YD v LB (A) 2009 (5) SA 479 (GNP)
The facts
The applicant (the alleged father) and the respondent (the mother), who had never married
each other, were involved in an intimate relationship between February 2006 and April 2007.
The respondent discovered that she was pregnant on 23 March 2007. In April 2007 she
became intimately involved with another man, whom she married in July 2007. The
respondent’s daughter, Y, was born on 8 November 2007. The applicant requested the
respondent to submit to blood tests voluntarily to determine paternity with regard to Y. The
respondent informed the applicant that she was not prepared to subject herself to a blood test
and that it was not in the best interests of Y to do so either.
The applicant then launched the application in the high court for an order directing the
respondent to submit herself and Y to blood tests. After considering the facts in Seetal v
Pravitha 1983 (3) SA 827 (D), M v R 1989 (1) SA 416 (O) and O v O 1992 (4) SA 137 (C), Murphy J
came to the conclusion that the preponderance of authority favoured the proposition that the
high court, as the upper guardian of all minors, was entitled to authorise a blood test on a
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minor despite objections by a custodian parent. He held that it would be in the best interests of
Y that paternity be scientifically determined and resolved. He ordered the respondent to
submit herself and her minor child Y, within 30 days of the order, to blood tests for the purpose
of determining whether the applicant is the biological father of the child Y.
YD v LB (A)
The respondent then applied for leave to appeal in YD v LB (A). The respondent (the applicant in
the application for leave to appeal, but to avoid confusion, I shall keep referring to her as the
respondent) raised 16 grounds of appeal, but the application for leave to appeal was
dismissed.
Discussion:
The position with regard to the use of blood tests to determine paternity in South Africa is very
uncertain, and reliance on recent, post-constitutional cases is the only way to determine the
courts’ attitude with regard to ordering blood tests in a paternity dispute. Apart from D v K
1997 (2) BCLR 209 (N), which was heard after the coming into operation of the Constitution of
the Republic of South Africa 200 of 1993 (the interim Constitution), but before the Constitution
of the Republic of South Africa, 1996 (the Constitution) came into effect, the present case is the
only case that deals with blood tests to determine paternity in a constitutional framework. It is
also the first case that deals with blood tests in paternity disputes to be reported in 13 years,
and the first case of this nature since the implementation of the Children’s Act 38 of 2005. As a
result, the decision is an important one.
There are some aspects of Murphy J’s judgment that need to be mentioned:
It appears as if he did not properly take cognisance of the marital status of the mother.
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She was married at the time of the child’s birth. In terms of the maxim pater est quem nuptiae
demonstrant Y was born to married parents, and it is presumed that the woman’s
husband is the child’s father. Evidence on a balance of probabilities is needed to rebut the
presumption that her husband is her child’s father. The court failed to take this into account in
its judgment.
Other than the best interests of the child, he did not consider any of the relevant
constitutional rights, such as the right to human dignity, freedom and security of the person,
and privacy. This unfortunately jeopardises the relevance of the decision.
The decision of the court to compel the respondent and Y to submit to blood tests is
welcomed, but because all the facts and presumptions with regard to paternity, as well as all
the relevant constitutional rights were not considered, the decision does not provide the much
needed guidance as far as this area of the law is concerned.
11. Frasier V Children’s Court, Pretoria North 1997 (2) SA 261 (CC)
The facts
The second respondent fell pregnant while she and the applicant were still living together.
During her pregnancy, the second respondent decided to give the child up for adoption. The
applicant disagreed and launched a series of unsuccessful application to stop the proposed
adoption and to have the child handed to him. The applicant applied for review of the
Children’s court decision by the High Court. On review, the adoption order was set aside and
the matter was referred to the Constitutional Court.
The legal question
• Is section 18(4) (d) of the Child Care Act 74 of 1983 unconstitutional?
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• Should the court declare s 18(4) (d) of the Child Care Act 74 of 1983 invalid or should the
court give Parliament an opportunity to correct the act in terms of s 98 (5) of the Constitution
of South Africa.
The judgment:
The Constitutional Court made the following order:
1. The court declared s18 (4) (d) of the Child Care Act 74 of 1983 as invalid and amended
the act to include the father’s consent with regards to adoptions.
2. In terms of the proviso to s98 (5) of the Constitution, Parliament is required within a
period of two years to correct the defect in the said provision.
3. The said provision shall remain in force pending its correction by Parliament or the
expiry of the period specified in paragraph 2.
The reasoning:
The court held that the Act in question was unconstitutional, because it discriminates unfairly
against fathers of extra-marital children on the grounds of their marital status. The court held
that it can be argued that the Act also discriminates unfairly on grounds of gender, because of
the fact that a mother of an extra-marital child has different rights to that of a extra-marital
father.
12. Motan V Joosub 1930 AD 61
The facts
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The appellant was in a customary, Muslim, marriage with the respondent. As their union did
not constitute a valid marriage, their children were born of unmarried parents. The appellant
claimed maintenance from the paternal grandparents. The respondent denied liability. The
exception was dismissed and it was held that the paternal grandfather of the children who are
born of unmarried parents is not obliged to support them. The appellant unsuccessfully
appealed against the decision.
The legal question:
Are paternal grandparents liable to pay maintenance for children of his son born of unmarried
parents?
The judgment:
The opinion of the lower court is correct and the appeal therefore is dismissed.
The reasoning:
The court held that according to Roman law, the paternal grandparents were not liable to
maintenance of their son’s illegitimate children. The court held that in this case, there can be
some certainty that the children are those of the son of the grandparents, but in other cases,
there is not sufficient certainty regarding paternity. If paternal grandparent were required to
pay maintenance for every illegitimate child of their son, it may impose a burden which may be
difficult for them to remove by proof.
13. Pietersen V Maintenance Officer [2004] 1 All SA 117 (C), 2004 (2) BCLR 205 (C)
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The facts
The applicant is an unmarried student who gave birth to a child in 2003. The child’s father
admitted to paternity. The child’s father did not pay maintenance towards the child, as he had
no income. The Maintenance Court also found that the father could not contribute towards
maintenance. The applicant’s parents supported the applicant and the child. The applicant
lodged a maintenance complaint with the maintenance officer to the effect that the child’s
paternal grandparents are legally liable to maintain the child but failed to do so. The applicant
asked the maintenance officer to summon the paternal grandparents to attend the
maintenance enquiry. The maintenance officer refused to do so, because the law does not
compel the paternal grandparents to pay maintenance towards their unmarried son’s children.
The legal question:
1. Does the common-law rule differentiate between people or categories of people? If so?
2. Does the differentiation amount to unfair discrimination?
I. Does the differentiation amount to discrimination? If it is on a ground specified in

section 9 (3), then discrimination will have been established.
II. If the differentiation amounts to discrimination, does it amount to unfair

discrimination? If it has been found to have been on specified ground, then unfairness will be
presumed.
3. If the differentiation is found to be unfair then a determination will have to be made as

to whether the common-law rule can be justifies under the limitations clause (Section 36 of the
Constitution)
The judgment:
Judge Fourie J held:
It is declared that the paternal grandparents have a legal duty to support the extra marital child
of the applicant to the same extent as the maternal grandparents.
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The first respondent is directed to take necessary steps for an enquiry to be held in terms of
section 10 of the Maintenance Act No 99 of 1998, with a view to enquiring into the provision of
maintenance, by the second and third respondents, for the said extra marital child of the
applicant.
The reasoning:
Judge Fourie J held that the differentiation between children born out of wedlock and extra
marital children not only denies extra marital children an equal right to be maintained by their
paternal grandparents, but is also not in line with the “best interests of the child” clause in the
Bill of Rights.
14. Louw V MJ & H Trust 1975 (4) SA 268 (T)
The facts
While still a minor, the appellant bought a motorcycle from the respondent. While relying on
his minority at the time the contract was concluded, the appellant subsequently reclaimed
R338 which he had paid to the respondent. The respondent contested on the grounds of
misrepresentation by the appellant. The respondent filed a counterclaim for payment of arrear
installments and for the value of parts stolen off the motorcycle. It was alleged that the theft
was due to the appellant’s failure to observe the contractual obligation. The court held that the
minor was bound by the contract and that the appellant was liable for the value of the stolen
parts.
On appeal to the Transvaal provincial division the appellant argued that the respondent knew
the appellant was a minor and should not have accepted the appellant’s representation of
being emancipated. Alternatively it was argued that the minor’s contract could not be enforced
even if the contract was induced by misrepresentation and that the minor was accordingly
entitled to restitutio in integrum.
The legal questions:

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1. Could the minor be held accountable even if he misrepresented himself?
2. Is the appellant entitled to restitutio in integrum?
The judgment:
The appeal was allowed to the extent that in relation to the counterclaim, the magistrate’s
judgment should be altered to one of absolution from the instance on the claim for R298.45
and to the judgment for the plaintiff (the appellant) on the claim of R69.
The reasoning:
Judge Eloff J held that the minor could not be held accountable because the contract was void,
even if the minor misrepresented his contractual capacity. The respondent was not entitled to
claim enforcement of the contract.
It was further held that the minor was not entitled to restitution in integrum, not because the
contract was void, but because of his fraud.
15. Edelstein V Edelstein 1952 (3) SA 1 (A)
The facts
The appellant was in the custody of her mother and got married with consent of both her
parents, while she was still a minor. The appellant and her husband entered into an antenuptial
contract prior to the wedding. The contract excluded community of property, community of
loss and profit, marital power was excluded. The appellant’s mother, only the mother assisted
her in entering into the contract. The appellant’s husband died and left a will in which the
appellant was a beneficiary. The executors of the estate framed the liquidation and the
distribution account on the basis that the marriage had been out of community of property.
After being advised that the antenuptial contract was invalid, the appellant sought an order
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declaring that she had been married in community op property and directing the executors to
amend the liquidation and distribution account by awarding her half of the net value of the
joint estate. The only opposing party was the commissioner of Inland Revenue. The
commissioner held that the amount of death duties payable would be less if the order was
granted.
The legal question
Was the contract the minor entered into, with assistance from her mother, a valid contract?
The judgment
The application was dismissed in the court a quo, but succeeded on appeal.
The reasoning
The minor entered into the contract without the consent/assistance of both her parents
(mother and father). The antenuptial contract was thus void and it was held that the parties
were married in community of property.
16. Wood V Davies 1934 CPD 250
The facts
While the plaintiff was still a minor, he inherited £10 000. The terms of the will stated that the
money would remain in a trust and that the plaintiff would only be entitled to in interest on the
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capitol. During the plaintiff’s minority, the plaintiff’s guardian purchased a house on the
plaintiff’s behalf. A purchase price of £1750 was agreed on and was payable in instalments. The
value of the property was £1550. Until the plaintiff’s majority, the instalments were paid out of
the interest of the inherited amount. When the plaintiff reached age of majority, a considerable
amount of the purchase price was still unpaid. The plaintiff claimed cancellation of the contract
and repayment of the amounts he had already paid in terms of the contract. The plaintiff
alleged that the contract was prejudicial to him.
The legal question:
1. Had the minor’s legal guardian have the authority to enter into the contract on the
minor’s behalf?
2. Was the contract entered into, prejudicial towards the minor?
3. Was the minor entitled to restitution in integrum?
The judgment:
Judge Sutton J held that the plaintiff is entitled to restitution integrum and there must be an
order for the cancelation of the contract of sale and the return of payments made on the
minor’s behalf under the contract, together with interest. The defendant is entitled to be
placed in statu quo. The plaintiff had occupation of the property purchased since May 1st 1929
and he must account the defendant for the use and occupation of the property. The judgment
was therefore in favor of the plaintiff.
The reasoning:
Judge Sutton J held that the contract was prejudicial towards the minor, firstly, because the
property was bought for £200 more than it was valued at and secondly, it imposed liabilities on
the plaintiff he attained when he became a major.
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17. Dickens V Daley 1956 (2) SA 11 (N)g
The facts
The respondent, a minor, entered into a lease agreement with the appellant. The respondent
drew a cheque in favour of the appellant, but the cheque was dishonoured as payment had
been stopped by the respondent. The appellant sued the respondent for payment in the
magistrate’s court. In a special plea the respondent admitted to drawing the cheque, but
averred that he was a minor and therefore had no locus standi in iudicio and that the
appellant’s claim was accordingly unenforceable. The appellant contended that the respondent
was emancipated and was therefore liable on the cheque. The appellant relied on the fact that
the respondent had been living with his mother and stepfather and was paying his board and
lodging; that the respondent had been working as a clerk for four years, that the respondent’s
father did not exercise control over the respondent and that he operated on his own bank
account. The Magistrate ordered absolution from the instance. The appellant successfully
appealed.
The legal question
Was the respondent tacitly emancipated?
The judgment:
The magistrate erred in granting the absolution from the instance. The appeal was allowed.
The reasoning:
The court held that the respondent was tacitly emancipated, because the respondent’s father
abandoned the right to exercise power over the respondent’s mode of life and such operations.
The respondent undertook to maintain himself.
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18. Watson V Koen H/A BMO 1994 (2) SA 489 (O)
The facts
The respondent sued the appellant in the magistrate’s court in terms of an agreement of sale
between them relating to course material. The appellant averred that he could not validly enter
into the agreement because he was a minor. The respondent maintained that the appellant was
emancipated. The magistrate found in favour of the respondent. The minor successfully
appealed against the magistrate’s decision.
The legal question:
Is the appellant emancipated, either tacitly or emancipated by his parents?
The judgment:
The court found in favour of the appellant and the appeal was successful.
The reasoning:
Judge Write R held that the respondent could not prove clearly that the appellant was indeed
emancipated, either tacitly or by his parents.
1. May 2002 Examinations and solutions
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Question one
Which one of the following is not recognised as a legal subject in our law?
[I] trade unions
[2] banks
[3] universities
[4] partnerships
Indicate in which one of the following cases the court decided that the mother of an unborn
child could not enter into an agreement on behalf of her child that the father of the child would
not be responsible for paying maintenance for the child after the child's birth:
[I ] Pinchin v Santam Insurance Co 1963 (2) SA 254 (W)
[2] Shields v Shields 1946 CPD 242
[3] Ex parte Boedel Steenkamp 1962 (3) SA 954 (0)
[4] Chisholm v ERPM 1909 TH 297
Indicate which one of the following statements is incorrect:

[I] No one can be without a domicile at any time.
[2] No one can have a domicile in more than one place at the same time.
[3] If a person abandons his or her domicile without assuming a new domicile, the person's
domicile of origin will revive.
[4] The changing of a person's domicile is never accepted without proof.
In which one of the following decisions did the court decide that it is within its inherent
jurisdiction to compel an adult to undergo blood tests in order to determine a child's paternity?
[I] Ov01992(4)SA137(C)
[2] Nell v Nell 1990 (3) SA 889 (T)
[3] SvL1992(3)SA713(E)
[4] MvR1989(1)SA416(0)
Indicate which one of the following contracts is valid:

[I] Thandi is six years old. She herself, without any assistance, buys a tricycle from a dealer.
[2] Thandi, with her father's assistance, buys a tricycle from a dealer.
[3] Thandi's father, on her behalf, buys a tricycle from a dealer.
[4] Thandi's uncle gives her a tricycle asa gift. She accepts the gifl herself, without any
assistance. (2)
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Indicate which one of the following contracts is valid:
[I] Sam, who is 15 years old, opens an account at a mutual bank without any assistance.
[2] Ben, who is 16 years old, buys a motor car from a car dealer, without any assistance.
[3] Harold, who is 17 years old, takes out a life insurance policy without any assistance.
[4] John receives a bicycle from his grandmother as a gift for his eleventh birthday. He accepts
the donation without any assistance. (2)
Indicate which one of the following statements is correct:

[I] a minor, who has concluded a contract without the assistance of his or her guardian, can
claim back performance consisting of money by means of the rei vindicatio.
[2] An antenuptial contract concluded by a minor without assistance, cannot be ratified by the
minor after the marriage has taken place.
[3] If a minor has concluded a contract with the consent of his or her guardian, the minor's
guardian will incur personal (contractual) liability for the minor's contract.
[4] A minor can enter into a valid agreement with another by which the latter's debt to the
minor is extinguished. (2)
Indicate which one of the following statements is incorrect:

[I] 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
(lucidinterval) 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. (2)
QUESTION 2
Indicate whether the following statements are true or false:
(a) According to the supporters of the nasciturus fiction legal subjectivity begins at
conception.(1 )
(b) In Pinchin Vs Santam Insurance Co 1963 (2) SA 254 (W) the court decided that a child has an
action to recover damages for pre-natal injuries. (1 )
(c) A presumption of death expressed in terms of the common law automatically dissolves the
marriage of the missing person. (1 )
(d) Mentally ill persons follow the domicile of their curator. (1 )

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(e) The presumption of paternity will not be rebutted if the man proves that he used
contraceptives when he had sexual intercourse with the child's mother. (1 )
(f) When a married woman gives birth to a child following artificial fertilisation with the semen
of a third party donor, the child is always illegitimate. (1 )
(g) Both natural and adulterine children are legitimated by their parents ‘subsequent
marriage.(1 )
(h) A contract of loan is an example of a unilateral contract. (1 )
(i) An infans cannot conclude any juristic act whatsoever.
(j) The exceptio non adimpleticontractus can only be used by parties to reciprocal contracts.(1 )
(k) A real agreement by which a minor attempts to transfer a right to another without his or her
guardian's assistance is valid.(1 )
(I) It is rebuttably presumed that minors between the ages of 7 and 14 years are accountable.(1
)
(m) A person who has been declared a major in terms of the Age of Majority Act 57 of 1972 is
for all purposes regarded as having reached the age of majority.(1 )
(n) The age of majority in South African law is 18 years.
QUESTION 3
(a) When does legal personality begin? (1 )
(b) Discuss the legal requirements for the beginning of legal personality. (4)
(c) A's will contains the following clause:

"My daughter B inherits R60 000 and her children who are alive at the date of my death, each
inherits R20 000." A dies on 5 October 2001. B's third child, Z, is born on 5 November 2001. B
has two other children. X and Y.
(i) What do you understand by the concept nasciturus fiction? (3)
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(ii) Name the two requirements for the operation of the nasciturus fiction. (2)
(iii) Can the nasciturus fiction be applied in this case? Discuss with reference to
authority. (4)
(iv) Who are entitled to inherit from A?
QUESTION 4
(a) Thandi is a six-year-old extra-marital child. Her mother lives in Soweto, and her father in East
London.Thandi lives with her father. Where is she domiciled? Discuss briefly and refer to
authority for your answer. (5)
(b) Anne and Ben, both unmarried, lived together for two years. When they separated, Anne
was pregnant. She later gave birth to a son, John. Ben contributed towards the hospital
expenses and paid maintenance for John. Anne agreed that Ben could have access to his child.
However, two years after John's birth, Anne refused to allow Ben any further access to his child.
Ben approaches you for advice. Advise him fully, with reference to authority, on his position. (1
5)
QUESTION 5
(a) What do you understand by the following concepts?
(i) obligation
(ii) reciprocal contract (Also give an example of a reciprocal contract.)
(iii) negotiorum gestio
(b) Themba is seventeen years old. He decides to buy a second-hand car. He visits Mr Molefe, a
dealer in second-hand cars. Without the assistance or consent of his guardian, Themba
concludes a contract of sale with Mr Molefe. In terms of the contract, Mr Molefe sells Themba
a car at the discount price of R15 000. The actual value ofthe car at the time of the conclusion
of the contract is R20 000. During the negotiations Themba tries to represent himself as a
88
major, but it is obvious to Mr Molefe that he is dealing with a minor. On 24 March, two weeks
after the car is delivered to Themba, he sells it for R12 000. He spends R8 000 of this money on
a luxury lounge suite, and the remaining R4 000 he uses to pay for his lodging. He does not pay
any of his debt to Mr Molefe. On 3 May, Mr Molefe institutes an action against Themba.
(i) On what basis could Themba be held liable to Mr Molefe? Explain briefly. (2)
(ii) What do you understand by the concept "undue enrichment"? (2)
(iii) What do you understand by the so-called "benefit theory"? Which decision introduced this
theory into our law? (2)
(iv) Does the benefit theory still form part of our law? Explain briefly with reference to
authority. (3)
(v) At which moment should the extent of the minor's enrichment be calculated? What is that
date in the question under discussion? (2)
(vi) One of the principles that are applied when calculating the extent of the minor's
enrichment, is that the minor is liable for the lesser of two specific amounts. What are these
two amounts? (2)
(vii) In which way should the minor's enrichment be calculated if the minor has sold the
performance before litis contestatio, and has used the proceeds to purchase luxury and
necessary items respectively? Apply these principles to the question under discussion. (3)
(viii) Write down the amount of Themba's enrichment. (1 )
(c) List the two requirements for the application of restitutio in integrum.
QUESTION 6
(a) In the case of an application for declaration of majority in terms of the Age of Majoriy Act 57
of 1972 the court must amongst other things be provided with "any other relevant information
that will place the Court in a position to judge whether it is necessary or desirable in the
interests of the applicant to grant the application" (s 3(g)). With reference to case law, briefly
explain how the courts have interpreted this requirement.(6)
(b) When is a person regarded as mentally ill for the purposes of the Mental Health Act 18
of1973? (1 )
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(c) According to the Supreme Court of Appeal (in Lange v Lange 1945 AD 332) a person is
regarded as mentally ill for the purposes of private law in two instances. Name these two
instances. (2)
(d) If a person has been influenced by alcohol or drugs to the extent that the person does not
know what he or she is doing or what the consequences of his or her juristic acts are, those acts
are................... (Write down only the missing word.)
SOLUTIONS
QUESTION 1
a) Partnerships are not recognised as legal subjects in our law, while trade unions, banks and
universities are recognised as such (see Only Study Guide 14-1 5; Cronje DSP & HeatonJ The
South AfHcan law ofpersons (1 999) (hereafter referred to as Cronje & Heaton) 7-8).
The correct answer is [4]. (2)
(b) In Shields v Shields 1946 CPD 242 the court decided that the mother of an unborn child
could not enter into an agreement on behalf of her child that the father of the child would not
be responsible for paying maintenance for the child. The court held that such anagreement was
contrary to public interest and thus refused to sanction the agreement (see Only Study Guide
29). The correct answer is [2]. (2)
(c) Statements [I], [2] and [4] are correct (see Only Study Guide 50). Statement [3] is incorrect,
since the Domicile Act 3 of 1992 provides that no one loses his or her domicile until he or she
acquired another domicile, whether by choice or by operation of law (see Only Study Guide 50;
Cronje & Heaton 40). The correct answer is [3]. (2)
(d) In M v R 1989 (1) SA 41 6 (0) the court decided that it is within its inherent jurisdiction to
compel an adult to undergo blood tests in order to determine a child's paternity (see Only
Study Guide 59; Cronje & Heaton 60-61 ; Casebook [I 71). The correct answer is [4]. (2)
(e) An infans has absolutely no capacity to act and cannot conclude any juristic acts whatsoever.
He or she cannot even enter into a contract that confers only rights and does not impose any
duties on him or her. The contract in [I] is thus invalid. The infans cannot conclude a juristic act
even with the assistance of his or her guardian. The guardian has to act for him or her and on
his or her behalf. The contract in [3] is therefore valid, while the contract in [2] is invalid. An
90
infans cannot even accept a donation; this has to be done on his or her behalf by the court, the
master, or his or her guardian. The contract in [4] is thus also invalid (see Only Study Guide 71-
72, Cronje & Heaton 87-88). The correct answer
is [3]. (2)
(f) Where a minor enters into a contract without his or her guardian's consent, and that
contract imposes duties on the minor, the contract is unenforceable. The contract in [2] is thus
unenforceable. A minor can conclude a contract which will improve his or her position without
imposing any duties on him or her (eg a donation), without assistance. The contract in [4] is
thus valid.
There are certain statutory exceptions to the rule that minors may not incur contractual liability
without the required assistance. One of these exceptions is that minors who have attained the
age of 18 years may insure their own lives without assistance. Since Harold is 17 years old, the
contract in [3] is unenforceable. Another exception to the general rule is that a minorwho has
attained the age of 16 years may be a depositor with any mutual bank without the assistance of
his or her guardian. Since Sam is 15 years old, the contract in [I] is unenforceable (see Only
Study Guide 75- 76; Cronje & Heaton 89-91).
The correct answer is [4]. (2)
(g) A minor who has concluded a contract without the assistance of his or her guardian, can
claim back performance consisting of money by means of a condictio (Only Study Guide 76;
Cronje & Heaton 90). Statement [I] is incorrect.
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 (Edelstein v Edelstein
1952 (3) SA 1 (A) - see Only Study Guide 95; Cronje & Heaton 98; Casebook [36]). Statement [2]
is thus correct.
If a minor concludes a contract with the consent of his or her guardian, the minor (and not the
guardian) incurs contractual liability for the contract as if he or she were a major (Only Study
Guide 94; Cronje & Heaton 96). Statement [3] is thus incorrect.
A minor cannot without assistance enter into avalid agreement with another party by which the
latter's debt to the minor is extinguished (Only Study Guide 101-1 02; Cronje & Heaton 102).
Statement [4] is incorrect. The correct answer is [2].
(h) The court can appoint a curator for a person who, owing to blindness, is not capable of
managing his or her own affairs. The fact that a curator has been appointed for such a person
does not result in the person losing his or her capacity to act altogether. If, in the particular
circumstances, the person is physically and mentally capable of managing his or her own affairs,
that person can enter into a valid juristic act (Only Study Guide 117-11 8). Statement [I] is thus
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incorrect. A juristic act entered into by a mentally ill person during a lucidum intervallum (lucid
interval) is valid (see Only Study Guide 11 7). Statement [2] is thus correct.
The capacity to act of a prodigal is similar to that of a minor (see Only Study Guide 11 8).
Statement [3] is thus correct.
A prodigal may marry without the consent of his or her curator (Only Study Guide 11 9).
Statement [4] is correct. The correct answer is [I].
QUESTION 2
(a) According to the supporters of the nasciturus fiction legal subjectivity begins at birth (see
Only Study Guide 32; Cronje & Heaton 22-23). This statement is false. (1 )
(b) In Pinchin vSantam Insurance Co 1963 (2) SA 254 (W) the court decided that a child has an
action to recover damages for pre-natal injuries (see Only Study guide 29-31; Cronje & Heaton
17-1 9; Casebook [3]). The statement is true. (1 )
(c) A presumption of death expressed in terms of the common law does not automatically
dissolve the marriage of the missing person. The surviving spouse has to apply to the court
which expressed the presumption of death for an order dissolving the marriage (see Only Study
Guide 40; Cronje & Heaton 28-29). This statement is false. (1 )
(d) The Domicile Act 3 of 1992 provides that mentally ill persons are domiciled at the place with
which they are most closely connected (see Cronje & Heaton 45-46). This statement is false. (1 )
(e) The presumption of paternity will not be rebutted if the man proves that he used
Contraceptives when he had sexual intercourse with the mother (see Cronje & Heaton 55). This
statement is true. (1 )
(f) Section 5(1) of the Children's Status Act 82 of 1987 provides that a child procreated by
means of artificial fertilisation in which the semen of a third party donor was used, is legitimate
if the married woman and her husband consented to the fertilisation. A rebuttable presumption
exists that both parties gave their consent (see Cronje & Heaton 62). The statement is false. (1 )
(g) Both natural children and adulterine children are legitimated by their parents' subsequent
marriage (see Cronje & Heaton 81). The statement is true. (1 )
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(h) A contract of loan is an example of a multilateral contract, not a unilateral contract (Only
Study Guide 68). This statement is false. (1 )
(i) An infans has absolutely no capacity to act and cannot conclude any juristic acts whatsoever.
He or she cannot even enter into a contract that confers only rights and does not impose any
duties on him or her. The guardian has to act for him or her and on his or her behalf (see Only
Study Guide 71-72, Cronje & Heaton 87-88). This statement is true.(1 )
(j) The exceptio non adimpleti contractus is a legal remedy which can be used by a party to a
reciprocal contract (Only Study Guide 78). Therefore, this statement is true.(1 )
(k) A real agreement by which a minor attempts to transfer a right to another without his or her
guardian's assistance is completely invalid (Cronje & Heaton 102). Therefore, this statement is
false. (1 )
(I) There is a rebuttable presumption in our law that minors between the ages of 7 and 14 are
unaccountable (Only Study Guide 103; Cronje & Heaton 105). Therefore, this statement is false.
(1 )
(m) A person who has been declared a major in terms of the Age of Majority Act 57 of 1972 is in
terms of section 7 of the Act for all purposes regarded as having reached the age of
majority (Cronje & Heaton 108). This statement is true. (1 ) (n) The age of majority in South
African law is 18 years (Cronje & Heaton 106). This statement is true. (1 )
QUESTION 3
(a) Legal personality begins at birth (see Cronje & Heaton 9). (1)
(b) The legal requirements for the beginning of legal personality are the following (Cronje
&Heaton 9): The birth must be fully completed, that is there must be a complete separation
between the body of the mother and the fetus. For birth to be completed it is not required that
the umbilical cord be severed. The child must be alive after separation even if only for a short
period. Legal personality is not obtained by a stillborn fetus or a fetus which dies during birth.
(4)
(c) This question deals with the application of the nasciturus fiction in the field of testate
succession (see, in this regard, Only Study Guide 25-28; Cronje & Heaton 12-17; Casebook [I]).
93
(i) If a situation arises where it would have been to the advantage of the nasciturus if he or she
had already been born, the law protects hisor her potential interests. This is done by the
implementation of the fiction that the nasciturus is regarded as having been born at the time
of his or her conception whenever his or her interests are at stake. If it appears in a specific
case that, had the nasciturus already been born, he or she would have had certain claims or
rights, the legal position is kept in abeyance until the nasciturus does in fact become a person,
or until it becomes certain that no person has developed from the nasciturus. Ifthe child is
indeed born alive, he or she acquires the rights that have been kept in abeyance. (3)
(ii) The requirements for the application of the fiction are:

The fetus must already have been conceived at the time when the benefit would have accrued
to him or her.
The child must subsequently be born alive. (2)
(iii) The nasciturusfiction is also applied in the law of succession. In the case of testate
succession (ie in cases where the testator leaves behind a valid will), effect must be given to the
provisions of the will. If the testator clearly intended that unborn children should not inherit,
this intention is simply carried out. Sometimes the testator's intention is not clear, as happened
in the question under discussion. In the prescribed case of Ex parte Boedel Steenkamp 1962 (3)
SA 954 (O), the testator's will contained a provision similar to the one in the question under
discussion. In this case the court decided that an unborn child who had been conceived before
the testator's death but who was born after his death, was entitled to inherit. The reason for
the decision was that the word "alive" (in die /ewe is) was not enough to rebut the strong
natural presumption that the testator intended to include the nasciturus.
Students were also expected briefly to refer to the provisions of the Law of
Succession Amendment Act 43 of 1992, that inserted section 2D(I)(c) into the Wills Act 7 of
1953. This amendment confirms the operation of the nasciturus fiction in the field of testate
succession. The effect of the provision is that benefits allocated in a will to the children of a
person, or to the members of a class of persons, also includes children (or members of the
class) who have already been conceived at the time of the testator's death and are later born
alive, unless an intention to the contrary is evident from the will. (4)
(iv) If one relies on the Steenkamp case, it is clear that the testator's daughter (B) will be
entitled to inherit R60 000 from him, and her children (X , Y and Z) R20 000 each. (1 )
QUESTION 4
(a) Section 2(1) of the Domicile Act 3 of 1992 provides that a person who is incapable of
acquiring a domicile of choice in terms of section 1 of the Act (ie inter alia a person below the
94
age of 18 years) will be domiciled at the place to which he or she is most closely connected.
Section 2(2) of the Domicile Act contains the rebuttable presumption that if a child has his or
her home with one or both of his or her parents, it is presumed that this parental home is the
child's domicile. "Child" means any person below the age of 18 years who does not have the
status of a major. "Parents" include the adoptive parents of a child, and also the parents of a
child who are not married to each other (see Only Study Guide 52, Cronje & Heaton 44-45).
Thandi is thus domiciled in East London. (5)
(b) In this question you had to discuss the question whether the father of an extra-marital child
has a right of access to his child (Only Study Guide 63, 64; Cronje & Heaton 66-72,78-80;
Casebook [24], [25], [27]).
QUESTION 5
(a) (i) An obligation is a juristic bond in terms of which the party or parties on the one side have
a right to performance and the party or parties on the other side have a duty to render
performance (Only Study Guide 68). (2)
(ii) A reciprocal contract 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 a reciprocal
contract is a contract of sale (Only Study guide 68). (2)
(iii) Negotiorum gestio refers to the liability incurred by a minor's parent or guardian against a
third party if the minor has incurred expenses for necessaries (eg food) in the parent's absence.
It can also be defined as managing someone else's affairs to his or her advantage without his or
her knowledge (see Only Study Guide 7; Cronje & Heaton 96). (2)
(b) See in this regard Only Study Guide 87-91; Cronje & Heaton 95-96; Casebook [36]
(i) The basis of liability is undue enrichment. Themba cannot be held delictually liable on the
basis of the misrepresentation, since it was obvious to Mr Molefe that he cannot be older than
sixteen (one of the requirements for delictual liability are thus not present). (2)
(ii) Undue enrichment takes place if a person gains a patrimonial benefit at the cost of another,
without there being a recognised legal ground justifying the transfer of the benefit. (2)
(iii) The benefit theory entails that once the contract, taken in its entirety, is to the minor's
benefit, the minor is contractually liable. The benefit theory was introduced into our law in the
case of Nel v Divine Hall & Co. (2)
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(iv) No, the benefit theory no longer forms part of our law. It was authoritatively rejected by the
Appellate Division in Edelstein v Edelstein where the court decided that the contract of a minor
who acted without assistance can never be valid because it is to his or her benefit. However,
the minor is indeed liable for the extent to which he or she has been unduly enriched. (3)
(v) The moment on which the calculation must be made is litis contestatio. In the question
under discussion litis contestatio took place on 3 May. (2)
(vi) The relevant two amounts are the amount by which the other party's estate is decreased as
a result of the performance, and the amount by which the minor's estate is increased as a result
of the performance. Both these amounts are based on the actual value of the performance, not
the contract price. (2)
(vii) If the minor has sold the performance before litis contestatio, and purchased necessary
items with the proceeds, he or she is liable for the purchase price of
these items. If the minor has purchased luxury items with the proceeds, he or she
is liable for the value of whatever still remains. In the question Themba will thus be liable for
the R8 000 spent on the lounge suite (luxury item that is still intact), as well as for the R4 000
spent on his lodging (necessary item). (3)
(viii) The amount of Themba's enrichment is R12 000. (1 )
(c) The requirements for restitutio in integrum are that the contract should have been
concluded with the guardian's assistance (or ratified after it was initially concluded without the
necessary consent), and it should have been to the minor's prejudice at the moment it was
made (Only Study Guide 98; Cronje & Heaton 99-1 00). (2)
QUESTION 6
(a) See in this regard Only Study Guide 109-1 10; Cronje & Heaton 107-109; Casebook [43] &
[44].
In Ex parte Akiki 1925 OPD 21 1 the court followed a strict approach, requiring pressing
necessity before an application of this nature could be granted.
In Exparte Botes 1978 (2) SA 400 (0) the court held that a measure of desirability must be
proved, and that it is not sufficient to show that the applicant is able to control his or her own
affairs, or that he or she wants to conclude a transaction but cannot do so as a minor. In
Exparte Smith 1980 (2) SA 533 (0) the court pointed out that, since the effect of the order is
much wider than the concession which the authority could earlier grant, applications like these
should be handled with caution. Each application should be judged on its own merits. (6)
96
(b) A person is regarded as insane for the purposes of the Mental Health Act 18 of 1973 if he or
she is mentally ill to such a degree that it is necessary that he or she be detained, supervised,
controlled and treated (see Only Study Guide 11 7). (1 )
(c) According to the Supreme Court of Appeal (in Lange v Lange 1945 AD 332) a person is
regarded as insane for the purposes of private law in the following two instances:
O if the person cannot understand what he or she is doing or what the legal consequences of
his or her actions are
O where the person does, in fact, realise what the legal consequences of his or her actions are
but is motivated by delusions which are a result of his or her mental illness (see Only Study
Guide 11 6) (2)
(d) The missing word is "void"
PAST EXAM PAPERS ON LONG QUESTIONS WITH ANSWERS
Mrs Smith, an expectant mother, was injured in a motor vehicle accident. Her child was
subsequently born with cerebral palsy. As a result of the brain damage the child will
never be able to take care of herself. The accident was caused by the sole negligence of
the driver of the other motor vehicle.
(a) What do you understand by the nasciturus fiction? (3)
If a situation arises where it would have been to the advantage of the

nasciturus if he or she had already been born, the law protects his or her
potential interests. This is done by the implementation of the fiction that the
nasciturus is regarded as having been born at the time of his or her conception
whenever his or her interests are at stake. If it appears on a specific case that,
had the nasciturus already been born, he or she would have had certain claims
or rights, the legal position is kept in abeyance until the nasciturus does in fact
become a person, or until it becomes certain that no person has developed
from the nasciturus. If the child is indeed born alive, he or she acquires that
rights that have been kept in abeyance.
(b) Name the two requirements for the operation of the nasciturus fiction.
(2)
97
- The fetus must already have been conceived at the time when the
benefit would have accrued to him or her.
- The child must subsequently be born alive.
(c) Can the nasciturus fiction be applied in this case? Discuss with reference to
authority. (5)
It is possible that somebody's negligence may cause injuries to the nasciturus

before birth. In Pinchin v Santam Insurance, where the facts were similar to
the question under discussion, the court had to answer the question whether a
person has an action in respect of injury inflicted on him or her while he or she
was still a fetus in his or her mother's womb. In this case the court concluded
that a fetus, if negligently injured before birth, may claim damages from the
wrongful party.
In Pinchin v Santam Insurance the claim was unsuccessful since it was not
proved that the cerebral palsy of the fetus had been caused by the injury
sustained by the mother. Should it be proved that Mrs Smith's child's cerebral
palsy is the result of the injuries sustained by Mrs Smith during the accident,
the nasciturus fiction will be applicable to this case.
2. Mrs X has successfully applied for a presumption of death order with regard to her
husband who has been missing for 20 years. What will the situation be if it becomes
clear that Mr X did not die? Explain the position in a few sentences.
(5)
Since the presumption of death order is rebuttable, the court which expressed the
presumption can set aside its original order if, on the basis of further evidence, it
becomes clear that the missing person did not in fact die. This can be done on the
application of any interested person or the missing person himself or herself. In such
a case he or she may bring an action for enrichment against those who have been
enriched at his or her expense as a result of the presumption of his or her death.
3. Vambu, a citizen of Mozambique, is an illegal immigrant in South Africa. He has lived

and worked in Hillbrow for the past two years. He wants to acquire a domicile of choice
in Hillbrow. What effect does Vambu's status as an illegal immigrant have on his
capacity to acquire a domicile of choice in Hillbrow? Advise him.
(4)
98
The residence relied on for the acquisition of a domicile of choice must be lawful.
Illegal immigrants can therefore not acquire a domicile of choice in South Africa even
if they have the intention to settle permanently because their intention is unlawful.
Persons who are deported from South Africa thus also loose their domicile in this
country even if they have the intention to return because their return would be
unlawful.
Where prohibited immigrants are, however, openly permitted by the authorities to

reside in a country, they may acquire a domicile of choice in that country. In this case,
Vambu will not be able to acquire domicile in South Africa.
4. Mr and Mrs Nkosi are married. During their marriage, Mrs Nkosi has an affair with Mr
Skosana, as a result of which a child is born. With reference to authority, advise Mr
Nkosi fully on how he should go about to rebut the presumption pater est quem nuptiae
demonstrant. (16)
In terms of the maxim pater est quem nuptiae demonstrant Mr Nkosi will be liable for
the maintenance of the child as our law recognises the rebuttable presumption that a
child is the child of the man to whom the mother is married.
This presumption is rebuttable however: either of the spouses can prove that the
husband is not the father of the child. This can be done, for example, by 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.
5. What do you understand by the following concepts?
(a) multilateral contract
A multilateral contract is a contract in terms of which more than one party

undertakes to render a performance. An example of a multilateral contract is a
contract of loan.
(b) undue enrichment
Undue enrichment takes place where one person gains a patrimonial benefit at
the cost of another without there being a recognised legal ground justifying the
transfer of the benefit.
(c) negotiorum gestio

99
Negotiorum gestio refers to the liability incurred by a minor's parent or
guardian against a third party if the minor has incurred expenses for
necessaries (e.g. food) in the parent's absence.
It can also be defined as managing someone else's affairs to his or her

advantage without his or her knowledge.
6. Gugu, a seventeen year old minor, concludes a contract with a certain Mrs Ndlovu, an
adult, to rent a bachelor flat. In terms of the contract Gugu has to pay Mrs Ndlovu the
exorbitant amount of R4 000,00 per month rental for the flat. Gugu's father was
unaware of this contract. When Gugu later had difficulty in paying the exorbitant rental,
she phoned her father and told him about the contract, whereupon he gave her money
to pay six months' rental.
(a) What do you understand by the concept restitutio in integrum? (1)
A prejudicial contract concluded by a minor with the assistance of his or her

guardian, can be set aside by means of restitutio in integrum. Restitutio in
integrum literally means return to the previous condition.
(b) List the two requirements for the application of this remedy. (2)
The requirements for this remedy are the contract should have been concluded
with the guardian's assistance, and it should have been to the minors prejudice
at the moment is was made.
(c) Can the abovementioned contract be set aside by means of the restitutio in
integrum? Answer yes or no and explain your answer in two sentences.
(3)
Yes. A minor who contracts without the assistance or consent of his or her
guardian is not liable in terms of that contract. However, Gugu's father tacitly
ratified her contract by paying six month's rental. The contract is thus
completely valid retrospectively. Furthermore, since an exorbitant rental was
payable, it was to Gugu's detriment at the moment it was made.
(d) Is restitutio in integrum available to a minor who fraudulently represented

himself or herself as a major? Answer yer or no. (1)
100
No, the remedy is not available to a minor who misrepresented himself or
herself as a major or who, in some other fraudulent manner, persuaded the
other party to contract with him or her.
(e) What is the purpose of restitutio in integrum? (1)
The purpose of the remedy is to restore the status quo ante. This means that
complete restitution from both sides must take place, placing both parties in
the position they would have been in had they never entered into the contract.
(f) What can be recovered by this remedy? (3)
Each party must return everything received under the contract, as well as the
proceeds or any advantage derived from the contract, and must also
compensate the other party for any loss suffered as a result of the contract.
(g) Who can seek this remedy? (3)
The minor can apply for restitution himself or herself before he or she attains
majority, or the guardian may apply on the minor's behalf. If the guardian fails
to do so, a curator ad litem may be appointed to assist the minor.
The minor may also await majority and then institute the action on his or her
own, but in this event he or she has to consider the possibility of prescription
of the claim.
7. Mr Molefe owes Peter, a 17-year old minor, R1 000,00 for a painting that Peter painted
for him. Without his parent or guardian's assistance, Peter concludes an agreement
with Mr Molefe in terms of which Peter extinguishes Mr Molefe's debt to him. Is this
agreement valid. Briefly explain your answer.
(2)
A minor cannot without assistance enter into a valid agreement with another by
which the latter's debt to the minor is extinguished. Peter's agreement is thus invalid.
8. Rachel is 16 years old. Rachel owes Mrs King R500 for clothes she bought from her.
Without her parent or guardian's assistance, Rachel concludes an agreement with Mrs
King in terms of which Rachel's debt to Mrs King is extinguished. Is this agreement valid.
Explain your answer. (2)
101
A minor can without assistance enter into a valid agreement with someone by which
the minor's debt is extinguished. Rachel's agreement is thus valid.
9. The following statements are legal principles laid down in cases dealing with a
declaration of majority. Name the case to which the following legal principles apply.
(a) A strict approach should be followed. Pressing necessity should be present

before applications of this nature can be granted.
Ex parte Akiki
(b) The court should under Act 57/1972 be even more cautious that before, since, in
terms of section 7, the effect of an order in terms of the Act is much wider than
the concession which the authority could grant earlier. Each application should
be judged on its own merits.
Ex parte Smith
(c) The court will only grant the application if a measure of desirability is proven by
the applicant. It is not sufficient to show that the applicant is able to control his
or her own affairs, or that he or she wants to conclude a transaction but cannot
do so as a minor.
Ex parte Botes
10. What do you understand by the concept "emancipation"? (2)
Emancipation refers to the freedom to contract independently granted to the minor

by his or her guardian.
11. How does deafness influence a person's capacity to act? Briefly explain your answer.
(5)
The court can appoint a curator bonis for anyone who, owing to some or other
physical defect, for example deafness, is not capable of managing his or her own
affairs. The fact that a curator has been appointed for this person does not result in
the individual losing his or her capacity to act altogether.
102
If, at a given moment, the person is physically and mentally capable of managing is or
her own affairs, he or she can enter into valid juristic acts. If the person is not
physically and mentally capable or managing his or her own affairs, the curator's
assistance is needed while performing juristic acts.
12. When does legal personality begin? (1)
Legal personality begins at birth
13. Discuss the legal requirements for the beginning of legal personality. (4)
The legal requirements for the beginning of legal personality are the following:
- The birth must be fully completed, that is there must be a complete separation
between the body of the mother and the fetus. For birth to be completed it is
not required that the umbilical cord be severed.
- The child must be alive after separation even if only for a short period. Legal
personality is not obtained by a stillborn fetus or a fetus which dies during
birth.
14. A's will contains the following clause: "My daughter B inherits R60 000 and her children
who are alive at the date of my death, each inherits R20 000".
A dies on 5 October 2001. B's third child Z is born on 5 November 2001. B has two
other children X and Y.
(a) Can the nasciturus fiction be applied in this case? Discuss with reference to
authority. (4)
The nasciturus fiction is also applied in the law of succession. In the case of
testate succession, effect must
be given to the provisions of the will. If the testator clearly intended that
unborn children should not inherit, this intention is simply carried out.
Sometimes the testator's intention is not clear, as happened in the question
under discussion.
103
In the prescribed case of Ex parte Boedel Steenkamp 1962 (3) SA 954 (O), the
testator's will contained a provision similar to the one in the question under
discussion. In this case the court decided that an unborn child who had been
conceived before the testator's death but who was born after his death, was
entitled to inherit. The reason for the decision was that the word "alive" was
not enough to rebut the strong natural presumption that the testator intended
to include the nasciturus.
The provisions of the Law of Succession Amendment Act 43 of 1992, that

inserted section 2D(I)(c) into the Wills Act 7 of 1953 confirms the operation of
the nasciturus fiction in the field of testate succession. The effect of the
provision is that benefits allocated in a will to the children of a person, or to
the members of a class of persons, also includes children who have already
been conceived at the time of the testator's death and are later born alive,
unless an intention to the contrary is evident from the will.
(b) Who are entitled to inherit from A? (1)
If one relies on the Steenkamp case, it is clear that the testator's daughter (B)
will be entitled to inherit R60 000 from him, and her children (X , Y and Z) R20
000 each.
15. Thandi is a six-year-old extra-marital child. Her mother lives in Soweto, and her father in
East London. Thandi lives with her father. Where is Thandi domiciled? Discuss briefly
and refer to authority for your answer.
(5)
Section 2(1) of the Domicile Act 3 of 1992 provides that a person who is incapable of
acquiring a domicile of choice in terms of section 1 of the Act (ie inter alia a person
below the age of 18 years) will be domiciled at the place to which he or she is most
closely connected.
Section 2(2) of the Domicile Act contains the rebuttable presumption that if a child has
his or her home with one or both of his or her parents, it is presumed that this
parental home is the child's domicile. "Child" means any person below the age of 18
years who does not have the status of a major. "Parents" include the adoptive parents
of a child, and also the parents of a child who are not married to each other.
Thandi is thus domiciled in East London.

104
16. Anne and Ben, both unmarried, lived together for two years. When they separated,
Anne was pregnant. She later gave birth to a son, John. Ben contributed towards the
hospital expenses and paid maintenance for John. Anne agreed that Ben could have
access to his child. However, two years after John's birth, Anne refused to allow Ben any
further access to his child. Ben approaches you for advice. Advise him fully, with
reference to authority, on his position. (15)
In B v S the appellate division held that since access is an incident of parental

authority, and since the father of an extra-marital child has no parental authority in
respect of that child, the father has
no inherent right of access to his child. If, at all, there is a question of an inherent
entitlement, it is that of the child, if it is in his or her best interests. The court rejected
the decision in Van Erk v Holmer and confirmed the full-bench decision in B v P.
In terms of the Natural Fathers of Children Born out of Wedlock

Act 86 of 1997 the unmarried father could apply for access. He
would have succeeded only if he could prove that access would be in the best
interests of the child. The court could make its order subject to whatever conditions it
sees fit. The court had to take certain factors into account when considering the
application for
access, for example the relationship between the father and the child’s mother, in
particular whether either party has a history of violence against or abuse of each other
or the child.
Before the commencement of the Children’s Act, the legal position amounted to
unfair discrimination against both the extra-marital child and his or her father, and
was thus in contravention of section 9 of the Constitution.
Position after the commencement of the Children’s Act 38 of 2005 on 1 July 2007:
The Children’s Act repealed the Natural Fathers of Children Born out of Wedlock Act.
In terms of the Children’s Act an unmarried father automatically has parental
responsibilities and rights if
- at the time of the child’s birth he is living with the mother in a permanent
lifepartnership, or
- regardless of whether he has lived or is living with the mother, consents to be
identified as the child’s father, and
105
- contributes to or has attempted in good faith to contribute to the child’s
upbringing for a reasonable period, and
- contributes or has attempted in good faith to contribute towards the child’s
maintenance for a reasonable period.
This section applies regardless of whether the child was born before or after the
commencement of the Act.
In the question, Ben would probably have automatic parental

responsibilities and rights in respect of John.
17. What do you understand by the following concepts?
(a) obligation (2)
An obligation is a juristic bond in terms of which the party or parties on the one
side have a right to performance and the party or parties on the other side
have a duty to render performance.
(b) reciprocal contract (2)
A reciprocal contract 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 a reciprocal contract is a contract of sale
(c) negotiorum gestio (2)
Negotiorum gestio refers to the liability incurred by a minor's parent or

guardian against a third party if the minor has incurred expenses for
necessaries (eg food) in the parent's absence. It can also be defined as
managing someone else's affairs to his or her advantage without his or her
knowledge
18. Themba is seventeen years old. He decides to buy a second-hand car. He visits Mr
Molefe, a dealer in second-hand cars. Without the assistance or consent of his guardian,
Themba concludes a contract of sale with Mr Molefe. In terms of the contract, Mr
Molefe sells Themba a car at the discount price of R15 000. The actual value ofthe car at
the time of the conclusion of the contract is R20 000. During the negotiations Themba
tries to represent himself as a major, but it is obvious to Mr Molefe that he is dealing
106
with a minor. On 24 March, two weeks after the car is delivered to Themba, he sells it
for R12 000. He
spends R8 000 of this money on a luxury lounge suite, and the remaining R4 000 he uses
to pay for his lodging. He does not pay any of his debt to Mr Molefe. On 3 May, Mr
Molefe institutes an action against Themba.
(a) On what basis could Themba be held liable to Mr Molefe? Explain briefly. (2)
The basis of liability is undue enrichment. Themba cannot be held delictually

liable on the basis of the is representation, since it was obvious to Mr Molefe
that he cannot be older than sixteen (one of the requirements for delictual
liability are thus not present).
(b) What do you understand by the concept "undue enrichment"? (2)
Undue enrichment takes place if a person gains a patrimonial benefit at the

cost of another, without there being a recognised legal ground justifying the
transfer of the benefit.
(c) What do you understand by the so-called "benefit theory"? Which decision
introduced this theory into our law? (2)
The benefit theory entails that once the contract, taken in its entirety, is to the
minor's benefit, the minor is contractually liable. The benefit theory was
introduced into our law in the case of Nel v Divine Hall & Co.
(d) Does the benefit theory still form part of our law? Explain briefly with reference
to authority. (3)
No, the benefit theory no longer forms part of our law. It was authoritatively
rejected by the Appellate Division in Edelstein v Edelstein where the court
decided that the contract of a minor who acted without assistance can never
be valid because it is to his or her benefit. However, the minor is indeed liable
for the extent to which he or she has been unduly enriched.
(e) At which moment should the extent of the minor's enrichment be calculated?
What is that date in the question under discussion? (2)
107
The moment on which the calculation must be made is litis contestatio. In the
question under discussion litis contestatio took place on 3 May.
(f) One of the principles that are applied when calculating the extent of the minor's
enrichment, is that the minor is liable for the lesser of two specific amounts.
What are these two amounts? (2)
The relevant two amounts are the amount by which the other party's estate is
decreased as a result of the performance, and the amount by which the
minor's estate is increased as a result of the performance. Both these amounts
are based on the actual value of the performance, not the contract price.
(g) In which way should the minor's enrichment be calculated if the minor has sold
the performance before litis contestatio, and has used the proceeds to purchase
luxury and necessary items respectively? Apply these principles to the question
under
discussion. (3)
If the minor has sold the performance before litis contestatio, and purchased
necessary items with the proceeds, he or she is liable for the purchase price of
these items. If the minor has purchased luxury items with the proceeds, he or
she is liable for the value of whatever still remains. In the question Themba will
thus be liable for the R8 000 spent on the lounge suite (luxury item that is still
intact), as well as for the R4 000 spent on his lodging (necessary item).
(h) Write down the amount of Themba's enrichment. (1 )
The amount of Themba's enrichment is R12 000.
19. List the two requirements for the application of restitutio in integrum. (2)
The requirements for restitutio in integrum are that the contract should have been
concluded with the guardian's assistance (or ratified after it was initially concluded
without the necessary consent), and it should have been to the minor's prejudice at
the moment it was made.
20. In the case of an application for declaration of majority in terms of the Age of Majoriy
Act 57 of 1972 the court must amongst other things be provided with "any other
relevant information that will place the Court in a position to judge whether it is
108
necessary or desirable in the interests of the applicant to grant the application" (s 3(g)).
With reference to case law, briefly explain how the courts have interpreted this
requirement.(6)
In Ex parte Akiki 1925 OPD 21 1 the court followed a strict approach, requiring
pressing necessity before an application of this nature could be granted. In Exparte
Botes 1978 (2) SA 400 (0) the court held that a measure of desirability must be proved,
and that it is not sufficient to show that the applicant is able to control his or her own
affairs, or that he or she wants to conclude a transaction but cannot do so as a minor.
In Exparte Smith 1980 (2) SA 533 (0) the court pointed out that, since the effect of the
order is much wider than the concession which the authority could earlier grant,
applications like these should be handled with caution. Each application should be
judged on its own merits.
21. When is a person regarded as mentally ill for the purposes of the Mental Health Act 18
of 1973? (1 )
A person is regarded as insane for the purposes of the Mental Health Act 18 of 1973 if
he or she is mentally ill to such a degree that it is necessary that he or she be detained,
supervised, controlled and treated.
22. According to the Supreme Court of Appeal (in Lange v Lange 1945 AD 332) a person is
regarded as mentally ill for the purposes of private law in two instances. Name these
two instances. (2)
According to the Supreme Court of Appeal (in Lange v Lange 1945 AD 332) a person is
regarded as insane for the purposes of private law in the following two instances:
- if the person cannot understand what he or she is doing or what the legal
consequences of his or her actions are
- where the person does, in fact, realise what the legal consequences of his or
her actions are but is motivated by delusions which are a result of his or her
mental illness
23. If a person has been influenced by alcohol or drugs to the extent that the person does
not know what he or she is doing or what the consequences of his or her juristic acts
109
are, those acts are ................... (Write down only the missing word.)
(1 )
The missing word is "void"
24. In Pinchin v Santam Insurance Co Ltd 1963 (2) SA 254 (W) it was decided
that a child does have an action to recover damages for pre-natal
injuries. Authors have different viewpoints on the applicability of the
nasciturus fiction in the field of the law of delict. What are the views of
the following authors on this issue?:
(a) Joubert (4)
Some authors, such as Joubert are of the opinion that it is unnecessary to

invoke the nasciturus fiction under circumstances like these. He argues that in
the Pinchin case the nasciturus fiction was applied to a case in which it was
never used at common law and for which it was never intended. At common
law it was applied in cases relating to succession and to the status of the child.
The question which arose in the Pinchin case could have been solved without
bringing the nasciturus fiction into the issue, since one could argue that the
defect from which the child suffers after birth was caused by the action of the
driver of the car before the child's birth. The fact that the defect manifests
itself only
after birth makes no difference: the child is now a person who
suffers from a defect caused by the delict committed by the driver of the car.
According to Joubert it is unnecessary to base the child's action for damages on
the nasciturus fiction
(b) Boberg (4)
Boberg, on the other hand, argues that the nasciturus "rule" should be applied
to award an action for prenatal injury. The child does not suffer damage only at
birth, but simply continues to suffer the damage which he or she sustained
before birth. When the child began to suffer damage it was not a person, and
therefore the nasciturus "rule" has to be applied to give an action for prenatal
injury
25. At which moment does legal subjectivity begin according to the supporters of the
nasciturus fiction and the nasciturus rule respectively? (2)
110
According to the supporters of the nasciturus fiction legal subjectivity begins only at
birth. According to the supporters of the nasciturus rule legal subjectivity already
begins at conception.
26. Mr X has been missing for 10 years since the light aeroplane in which
he was travelling disappeared without a trace off the Natal coast. Mrs X
has trouble administering her husband's large estate. She applies for a
presumption of death with regard to her husband, but her application
is unsuccessful. Advise her on possible solutions to her problem. (5)
If the court refuses to express a presumption of death it may nonetheless order that
the missing person's property be divided among his or her heirs. On occasion, the
courts order that the heirs must provide sufficient security for return of the property
should the missing person reappear. In In re Kannemeyer (1899) 16 SC 407, K had been
missing for 28 years. Because there was insufficient evidence of death the court
merely ordered a division of his estate subject to the provision of. If the court refuses
to express a presumption of death it may appoint a curator bonis to administer the
missing person's affairs.
27. A, who has been domiciled in South Africa for the past 30 years, leaves
the country with the intention never to return. He spends three weeks
in Australia whilst deciding where to settle permanently. Where will he
be domiciled during this period? Explain your answer briefly with
reference to authority. (4)
In the past, a person's domicile of origin revived if the person abandoned his or her
domicile of choice without acquiring a new domicile. This position has now been
changed by the Domicile Act 3 of 1992. The Domicile Act provides that no person will
lose his or her domicile until he or she has acquired a new domicile, whether by choice
or by operation of law, and, notwithstanding any law or the common law, no person's
domicile of origin will revive except within the meaning of sections 1 or 2 (s 3(2).
A will thus be domiciled in South Africa until he has acquired a new
domicile of choice.
28. Anne and Ben, both unmarried, lived together for two years. When
they seperated, Anne was pregnant. She later gave birth to a son, John.
Ben contributed towards the hospital expenses and paid maintenance
111
for John. Anne agreed that Ben could have access to his child. However, two years after
John's birth, Anne refused to allow Ben any further
access to his child. Ben approaches you for advice. Advise him fully,
with reference to authority, on his position. (16)
In F v L 1987 (4) SA 525 (W), the court decided that a father does not
acquire parental authority over his extra-marital child and, since access is a
component of parental authority, the father does not have an inherent right of access
to that child.
In B v P 1991 (4) SA 113 (T), the full bench of the Transvaal Provincial
Division accepted the decision in F v L. The court added that the father may apply for
an order granting him access to his child. He must then prove on a balance of
probabilities that such an order will be in the best interests of the child, and that the
order will not unduly interfere with the mother's right of custody-
In Van Erk v Holmer 1992 (2) SA 636 (W), the Witwatersrand Local
Division held that the time had arrived for our courts to recognise the
inherent right of access of the natural father of an extra-marital child.
The acknowledgement of such a right is justified by considerations of justice, fairness,
reasonableness and public policy. The access right should be denied only if it would be
contrary to the best interests of the child.
In B v S 1995 (3) SA 571 (A), the Supreme Court of Appeal held that since access is an
incident of parental authority, and since the father of an extra-marital child has no
parental authority in respect of that child, the father has no inherent right of access to
his child. If, at all, there is a question of an inherent entitlement, it is that of the child,
if it is in his or her best interests. The court rejected the decision in Van Erk v Holmer
and confirmed the full bench decision in B v P. The Supreme Court of Appeal added
that if the parents of an extra-marital child cannot agree on whether access would be
in the best interests of the child and they are compelled to go to court, it seems just
and equitable that the court should, inter alia, take the following into consideration:
- the degree of commitment which the father has shown towards the child
- the degree of attachment which exists between the father and the child
- the reasons of the father for applying for the order
In T v M 1997 (1) SA 54 (A), the Supreme Court of Appeal held that,
112
whether or not access is granted is not dependent on the legitimacy of the child, as it
used to be in common law, but that each case depends wholly on the welfare of the
child. It therefore is the child's right to have access, or to be spared access, and not the
mother's or father's right.
In terms of the Natural Fathers of Children Born out of Wedlock Act 86 of 1997 the
unmarried father may apply for access. He will succeed only if he can prove that
access will be in the best interests of the child. The court must consider certain
factors, such as the relationship between the child's mother and his or her natural
father, and the attitude of the child, when evaluating the application.
The existing legal position amounts to unfair discrimination against both the extra-marital
child and his or her father, and is thus in contravention of section 9 of the Constitution of the
Republic of South Africa 108 of 1996
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LAW OF PERSONS

THE ULTIMATE LAW OF PERSON’S

2 Summarised court cases

3 Past exam papers with solutions

Prepared by Stacy Mulenga (BBL-Unisa)

(071 161 5920)

Confined to treatment of the natural person only: not juristic persons.

Different kinds of legal subjects

Factors determining recognition as a legal subjects

Characteristics of a juristic person

What is recognized as juristic persons?

Beginning of legal personality

Determining whether a child was alive

Births and Deaths Registration Act 51 of 1992

Naming of legitimate children under the act

Naming of extra-marital children under the act

Interests of the unborn child (nasciturus)

Requirements when employing the fiction

Interests taken into account

Intestate succession (person dies without a will)

Testate succession (testator leaves a valid will)

Fideicommissum: protection of the interests of the unborn child

Standard protection of the interests of the unborn child

Criticism against Hiemstra’s judgement

Arguments for Hiemstra’s judgement

Friedman v Glicksman 1996:

Circumstances under which pregnancy may be terminated

Consent by mentally able women

Consent by mentally disabled and unconscious women

Termination with consent of spouse/guardian/curator personae

Termination without consent of spouse/guardian/curator personae: from 21 st week of

Sterilizing mentally disabled people

Is the nasciturus a legal subject?

Common Law procedure

Procedure to get a missing person pronounced dead

Factors and circumstances taken into account

Procedure followed by our courts to issue presumption

Inquests Act 58 of 1959

Remarks re the Act

Aviation Act 74 of 1962

The effect of an order of presumption of death

Refusal by court to issue presumption of death

Presumptions regarding sequence of death

Duty to bury the deceased

Only the high court is competent to give judgements regarding status.

Capacity to be held accountable for crimes and delicts

Requirements for acquiring a domicile of choice

Domicile by operation of law

Domicile of a mentally incapacitated person

Categories of illegitimate children

Rebutting the presumption of paternity

Rebuttal of the presumption/allegation of paternity

Absence of sexual intercourse

The gestation period

Blood and tissue tests

The status and legitimation of extra-marital children

The status of the extra-marital child

Parental authority of the mother

Parental authority of the father

Van Erk V Holmer was rejected by J Fleming in S v S and by JA Howie in B v S..

Re Van Erk v Holmer J Fleming said in S v S that:

Re Van Erk v Holmer JA Howie said in B v S that:

Child Care Amendment Act 96 of 1996