PVL1501 EXAM PACK

PVL1501 EXAM PACK. SECTION A 1. 4 2. 3 3. 1 4. 2 5. 3 6. 2 7. 3 8. 3 9. 1 10.3 11.1 12.3 13.4 14.4 15.2 16.4 17.2 18.2 19.1 20.4 21.3 22.4 23.3 24.4 25.3 SECTION B QUESTION 1 a) The child’s surname may also be changed to his or her mother’s surname if his or her parents’ marriage or civil union is dissolved by divorce and the child’s mother has sole guardianship or the child’s father consents to the change. The court may dispense with the father’s consent. If the mother enters into a new marriage or civil union, she may apply to have the child’s surname changed to the surname she bears. Of particular note, Grace needs the written consent of the child’s father as S - The study-notes marketplace Downloaded by: sandi123 | Distribution of this document is illegal S - The study-notes marketplace 2 well as the written consent of her new husband or civil union partner, unless the court dispenses with consent. If the mother has sole guardianship, she does not need the father’s consent, but she still needs the consent of her new husband or civil union partner, unless the court dispenses with consent Conclusively, Grace needs to obtain written consent from both Frank Blake and Brian Smith in order to change Cythnia’s surname to Smith. b) ● Making an independent decision about contraception or sterilisation. ● Developing mentally to a sufficient degree to make an informed decision about contraception or sterilisation. ● Fulfilling the parental responsibilities associated with giving birth. c) Friedman v Glicksman case d (i) Statutory procedure based on the Inquests Act 58 of 1959. Please note: Baloyi did not die due to natural causes. Section 5(2) of the Inquests Act stipulates that if a magistrate isof the opinion that a person’s death was not due to natural causes, he or she must take the necessary steps to ensure that an inquest as to the circumstances and cause of the death is held by a judicial officer in terms of section If the person’s corpse is available, the district surgeon or another medical practitioner examines it in order to determine the cause of death. (ii) Common-law procedure. Please note: If a person disappears and there is no certainty as to whether he or she is dead or still alive, a presumption of death can be pronounced in terms of the common law or, in certain instances, in terms of statute. QUESTION 2 a) (i) Motan v Joosub case. (ii) Petersen v Maintenance Officer case. The court held that, the rule that only maternal grandparents are liable for the child’s maintenance is unconstitutional in the sense that it violates the right of a child born of unmarried parents not to be subject to unfair discrimination on the ground of birth and the child’s right to dignity, and also fails to consider the importance of child’s best interests. b) Downloaded by: sandi123 | Distribution of this document is illegal S - The study-notes marketplace 3 ● The person who wants to acquire such a domicile must be a major or have the status of a major. ● The person must have the mental capacity to make a rational choice. Please note: Section 1(2) of the Act sets further requirements for the acquisition of a domicile of choice. It provides that a domicile of choice is “acquired by a person when he is lawfully present at a particular place and has the intention to settle there for an indefinite period”. c) (i) YM v LB (ii) S v L (iii) Nell v Nell d) Caring for the child, maintaining contact with the child, acting as the child’s guardian, and contributing to the child’s maintenance. e) ● Adoption ● A subsequent marriage or civil union between the child’s parents ● An order of the authorities QUESTION 3 a) 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. b) An infans cannot have any capacity to act and cannot conclude any juristic act, enter into any agreement whatsoever, not even one that confers only rights and imposes no duties and conclude a juristic act even with the assistance of his guardian: his guardian has to act on his behalf. Conversely, minors between the ages of seven and 18 years have limited capacity to act. c) (i) No in the sense that the guardian has a discretion whether the contract should be repudiated or honoured. Downloaded by: sandi123 | Distribution of this document is illegal S - The study-notes marketplace 4 (ii) If a minor has performed in terms of an unassisted contract and the contract is repudiated and Zelda claims the money by a condictio. (iii) The assistance of the guardian may take various forms thus guardian can contract on behalf of the minor or the minor can enter into the contract himself or herself with the consent of the guardian. d) The requirements for granting restitutio in integrum are that the minor concluded the contract with the assistance of his or her guardian or the guardian concluded the contract on behalf of the minor, and the contract must be prejudicial to the minor at the moment it is made. Please note: Restitutio in integrum is an extraordinary legal remedy whereby a minor can escape liability if he or she contracted with the assistance of his or her guardian (other guardian contracted on his or her behalf) and the contract was prejudicial to the minor at the time it was made. e) (i) Yes minor who has turned 12 may independently buy condoms and receive free condoms on request (ii) No because in terms of the Civil Union Act 17 of 2006, only persons who have already reached the age of 18 years may enter into a civil union. (iii) Yes in the sense that a person who is 16 years or older may make his or her own will and in it dispose of his or her property as he or she pleases. Downloaded by: sandi123 | Distribution of this document is illegal S - The study-notes marketplace 5 2017 MAY/JUNE ANSWERS SECTION A 1. 1 2. 3 3. 1 4. 1 5. 4 6. 1 7. 2 8. 2 9. 4 10.3 11.3 12.2 13.3 14.4 15.1 SECTION B QUESTION 1 a) A partnership is not juristic person. In this regard, the individual partners are responsible for partnership debts out of their private funds. b) ● The association must have a continuous existence irrespective of the fact that its members may vary. ● It must have rights, duties and capacities or be able to have rights, duties and capacities in its own right, (that is, distinct from the rights, duties and capacities of the individual members in their personal capacities). The fact that the association regards itself as a juristic person with rights, duties and capacities is important but not decisive. ● Its object must not be the acquisition of gain. c) A natural person’s legal personality begins at birth. The requirements for the beginning of legal personality are the birth must be fully completed, that is, there Downloaded by: sandi123 | Distribution of this document is illegal S - The study-notes marketplace 6 must be a complete separation between the body of the mother and the child and The child must live after the separation even if only for a short period. Please note: For birth to be completed it is not required that the umbilical cord be severed and a stillborn child or a child who dies during birth therefore does not acquire legal personality. d) Duty rests on the parents to give notice: if neither can, notice must be given by: the person who has charge of the child or the person the parents requests to do so. Please note: 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. e) One has to note that section 11 of the Constitution protects the right to life. In this regard, in Christian Lawyers Association of South Africa v The Minister of Health. The plaintiffs contended that human life starts at conception and that the Choice on Termination of Pregnancy Act contravenes section 11 of the Constitution. The court held that, no provision of the Constitution bestows legal personality or protection on the foetus, and that the Constitution does not qualify a woman’s right to make decisions about reproduction and her right to security in and control over her body in order to protect the foetus. Conclusively, as evident above the termination of pregnancy does not contravene the right to life as legal personality begins at birth. Please note: The law grants rights and obligations (including constitutional rights and obligations) only to legal subjects. In the absence of a clear provision elevating the unborn child’s status to that of a legal subject, the Constitution cannot be said to have conferred any rights on unborn children. f(i) Common-law procedure. Please note: If a person disappears and there is no certainty as to whether he or she is dead or still alive, a presumption of death can be pronounced in terms of the common law or, in certain instances, in terms of statute. (ii) Dissolution of Marriages on Presumption of Death Act 23 of 1979 is applicable in the given set of facts. It provides that, the court that pronounces a presumption of death is thus empowered to make an order dissolving the person’s marriage at the same time that the presumption of death is made, or at any time thereafter. In this regard, a separate application for an order dissolving the marriage may be made. Since the presumption has been granted she can make an application to the court for dissolution of the marriage. The result of the order is that the marriage is deemed to have been dissolved by death for all purposes. Downloaded by: sandi123 | Distribution of this document is illegal S - The study-notes marketplace 7 Please note: This also applies to civil union and The court may not grant the order on its own initiative. It may only do so on the application of the surviving spouse or civil union partner. QUESTION 2 a) Section 1(1) of the Domicile Act clearly indicates that the first requirement for acquiring a domicile of choice is that the person who wants to acquire such a domicile must be a major or have the status of a major. The other requirement as per section 1(2) a domicile of choice is “acquired by a person when he is lawfully present at a particular place and has the intention to settle there for an indefinite period. Please note: Section 1(1) of the Domicile Act provides that, regardless of sex or marital status, everyone who is of or over the age of 18 years and everyone under the age of 18 years who legally has the status of a major, is competent to acquire a domicile of choice, unless he or she lacks the mental capacity to make a rational choice. b) The Domicile Act, which provides that persons who do not “have the mental capacity to make a rational choice acquire a domicile at the place with which they are most closely connected. Please note: Mentally persons cannot acquire a domicile of choice. c) A child born of married parents is a child who is born of parents who are legally married to each other at the time of the child’s conception or birth or at any intervening time. d) (i) S v L (ii) YM v LB e) Caring for the child, maintaining contact with the child, acting as the child’s guardian, and contributing to the child’s maintenance. f) In terms of section 21(1) of the Children’s Act, an unmarried biological father acquires full parental responsibilities and rights in respect of his child if, he lives with the child’s mother in a permanent life partnership when the child is born. Please note: Regardless of whether he has ever lived with the child’s mother, he consents or successfully applies to be identified as the child’s father182 or pays damages in terms of customary law, and contributes or attempts in good faith to contribute to the child’s upbringing and maintenance for a reasonable period.