201 2019 1 B
201 2019 1 B
201 2019 1 B
Law of Persons
PVL1501
Semester 1
BARCODE
CONTENTS
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PVL1501/201
Dear Student
As indicated in Tutorial Letter 101/3/2019, there are two compulsory assignments for this
module. Submission of assignment 01 is a prerequisite to gain admission to the examination.
Although it is not required that you pass assignment 01, it will count 10% towards your final
mark for this module. Failure to submit assignment 02 will not influence your examination
admission (only the submission of assignment 01 will give you examination admission), but
assignment 02 also contributes 10% towards your final mark for this module. In Tutorial
Letter 101/3/2019, we also included a self-evaluation assignment, which should not have
been submitted. Below we provide commentary on all three assignments. The commentary on
the self-evaluation assignment allows you to evaluate your answers yourself.
2 TUTORIAL LETTERS
The tutorial letters sent to you throughout the semester are extremely important, as they are a
means of keeping in touch with you and informing you of new developments. To date, you
should have received Tutorial Letters 101 and 102. If you are not in possession of these tutorial
letters, contact the Department of Despatch (Room 2-27A Cas Van Vuuren Building) as soon as
possible. The relevant address is:
NB: Please remember that all tutorial material is available online on myUnisa.
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3 COMMENTARY ON ASSIGNMENT 01
3.1 General
This is a compulsory assignment and submission is a prerequisite for admission to the
examination. In order to gain admission to the examination, it is not required that you pass this
assignment, but since the mark you obtain for assignment 01 will contribute 10% towards
your final mark for this module, it will be to your advantage to do well in the assignment. The
following general assessment criteria were used to evaluate the problem-type questions
in your assignment:
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3.2 Questions and answers
Question 1
A natural person’s legal personality begins at birth. For birth to be recognised as the moment
when legal subjectivity begins, two requirements must be met. List and briefly discuss those
requirements. [6]
Question 2
(a) Zandile Baloyi and Alfred Baloyi recently divorced. Zandile has changed her surname to
her maiden surname (Dlamini), and she also wants to change her daughter’s surname to
Dlamini. With reference to authority, advise Zandile whether this is possible and, if so,
which procedure should be followed. (4)
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(b) Suppose that in the scenario above Zandile gets married to Retse Morake after her
divorce from Alfred, and wants to change her daughter’s surname to Morake. Advise
Zandile whether this is possible and, if so, which procedure should be followed. (3)
Question 3
List the two requirements for the operation of the nasciturus fiction. [2]
The requirements for the operation of the nasciturus fiction are as follows:
The nasciturus must have been conceived(½) at the time that the benefit would have
accrued to him or her.(½)
The nasciturus must subsequently be born alive.(1)
Question 4
Mrs Levenson has been missing for 5 years. An inquest is held by a magistrate and a finding is
made in terms of section 18 of the Inquests Act 58 of 1959. This finding is confirmed by the
High Court. Mr Levenson now wants to get married. Advise him whether such a marriage would
be valid. Explain your answer with reference to authority. [3]
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Correctly indicating whether Mr Levenson’s marriage would be valid.(1)
The marriage would be valid.(1)
Providing a reason for your answer.(1)
If the high court confirms the finding in terms of the Inquests Act,(½) the person’s marriage or
civil union is deemed to have been automatically dissolved as from the date recorded in the
court’s finding as the date on which the person died.(½) No special application for the
dissolution of the marriage needs to be made.(1)
Providing authority for your answer.(1)
The Dissolution of Marriages on Presumption of Death Act.(1)
Question 5
For this question, you do not need to provide an answer. A mark will be allocated for language
based on your answers to the questions above. You only have to write down the word
“Language” here. [2]
Marks were awarded for proper use of language, sentence construction, punctuation and
spelling, as well as reflecting answers in your own words.
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4 COMMENTARY ON ASSIGNMENT 02
4.1 General
Question 1
Indicate which one of the following entities is not recognised as a juristic person:
A mutual bank is an association incorporated in terms of general enabling legislation. Option [1] is
therefore a juristic person.
Trade unions comply with the common-law requirements for the recognition of legal personality of a
juristic person. Option [2] is therefore a juristic person.
A trust is not a juristic person. Option [3] is therefore not a juristic person.
Since you had to indicate which of the listed options was not a juristic person, option [3] is
the correct alternative.
Question 2
In terms of the Births and Deaths Registration Act, notice must be given of the birth of a child
born alive within
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In terms of the Births and Deaths Registration Act, notice must be given of the birth of a child
born alive within 30 days.
(Heaton p 8)
Question 3
In which one of the following cases did the court decide that it is unnecessary to use the
nasciturus fiction to grant a child an action in respect of injuries suffered before his or her birth?
In Road Accident Fund v Mtati the court decided that the ordinary rules of delict should be used
to determine whether the child has a claim, and that an action for prenatal injuries should be
based on the law of delict.
Question 4
This question deals with the duty to bury the deceased. Ntando passed away at the age of 65,
leaving behind three heirs: his sons Madoda and Sandile, and his wife Tebogo. Ntando left clear
instructions in his will that, in the event of his death, he should be buried next to his late mother
and father in Bisho in the Eastern Cape. Following his death, his heirs cannot agree on the
burial arrangements. Madoda wants to have his father buried in Cape Town, while Sandile
wants his father buried in Pretoria. Tebogo wants to return to her birth town of Mokopong, and
wants to bury her late husband there. As their legal advisor, you should advise the family that
Ntando should be buried in …
[1] Bisho
[2] Cape Town
[3] Pretoria
[4] Mokopong (2)
Ntando should be buried in Bisho. If the deceased left written, or even verbal, instructions
regarding his or her funeral and/or burial place or cremation, those instructions must be
complied with as far as possible and permissible. In this case, Ntando’s instructions are written
in his will, therefore the heirs must comply with the instructions of the deceased.
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Question 5
The capacity to litigate is the capacity to appear in court as a party to a lawsuit. Option [1] is
therefore not the answer.
The capacity to be held accountable for crimes and delicts relates to fault. Option [2] is therefore
not the answer.
Capacity to act can be defined as the capacity to perform valid juristic acts. Option [3] is
therefore the answer.
Legal capacity is the capacity to have rights and duties. All human beings have this capacity
irrespective of their personal qualities. Option [4] is therefore not the answer.
(Heaton pp 36-37)
Question 6
Cheri, who is mentally incapacitated, was born in Bloemfontein. She moved to Stellenbosch
with her parents when she was four years old, and lived there with them until she was eighteen
years old. When she was twenty years old, her parents got divorced. Her mother moved to East
London and her father immigrated to the USA. Cheri is currently living with her sister in Pretoria.
Cheri is domiciled in …
[1] Bloemfontein
[2] East London
[3] Stellenbosch
[4] Pretoria (2)
In terms of the Domicile Act a person who does not have the mental capacity to make a rational
choice, like Cheri, cannot acquire a domicile of choice. Cheri accordingly acquires a domicile at
the place with which she is most closely connected. Since she is currently living with her sister
in Pretoria, it would be the place with which she is most closely connected.
(Heaton p 46)
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Question 7
In which one of the following cases did the Supreme Court of Appeal find that the High Court as
upper guardian of minors has an inherent power to order blood tests on a child in a paternity
dispute if the order is in the child’s best interests?
[1] SvL
[2] YM v LB
[3] OvO
[4] MvR (2)
In YM v LB the Supreme Court of Appeal held that the High Court as upper guardian of minors
has an inherent power to order blood tests on a child in a paternity dispute if the order is in the
child’s best interests.
Question 8
(Heaton p 84)
Question 9
A minor’s guardian will not incur personal liability towards the party with whom the minor has
contracted ...
[1] if the minor’s guardian bound himself or herself as surety for the minor.
[2] if the minor concluded the contract as his or her guardian’s agent.
[3] if the minor concluded the contract with the consent of his or her guardian.
[4] if the minor’s guardian guaranteed performance by the minor. (2)
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A minor’s guardian will not incur personal liability towards the party with whom the minor has
contracted if the minor concluded the contract with the consent of his or her guardian.
(Heaton p 90)
Question 10
A minor’s can incur contractual liability only if he or she is assisted by his or her guardian when
the contract is concluded. Option [1] is therefore an invalid agreement.
The guardian’s consent is unnecessary if the minor enters into a contract in terms of which the
other party incurs duties while the minor acquires rights only. A minor may thus enter into the
following valid agreements without the assistance of his or her guardian: where a right is
transferred to a minor; where a minor’s debt is extinguished, and where a minor accepts a
donation. Options [2], [3] and [4] are therefore valid agreements.
(Heaton p 86)
Since you had to indicate the invalid option, option [1] is the correct alternative.
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5 COMMENTARY ON SELF-EVALUATION ASSIGNMENT
5.1 General
This is a self-evaluation assignment. It means that you have to evaluate the answers to the
assignment questions yourself with reference to the comments below. We will discuss and
analyse the problem and give you the correct solution(s). You should use the comments to
evaluate your answers, so that you can ascertain whether your answer is correct, and whether
you have discussed all the relevant legal principles and/or prescribed cases correctly.
In this way you should work through the commentary thoroughly, and make an honest attempt
to compare it with your answers. If any of your answers fall short of the commentary, you should
work through the relevant section of the tutorial material thoroughly again. The commentary
contains the minimum amount of information that we expect in your assignment answers. It is
also a good indication of what we expect from you in similar questions in the examinations.
Question 1
(a) Khulubuse and Kenny recently entered into a partnership agreement, operating under the
name ‘Khulubuse and partners’. Advise both partners whether ‘Khulubuse and partners’
is a juristic person or not and who will be liable for the debts of ‘Khulubuse and partners’.
(2)
(Heaton p 4)
(b) Name the three common-law requirements with which an association must comply in
order to be recognised as a juristic person. (3)
The three common-law requirements with which an association must comply in order to be
recognised as a juristic person are as follows:
(i) The association must have a continuous existence irrespective of the fact that its
members may vary.(1)
(ii) It must have rights, duties and capacities or be able to have rights, duties and
capacities in its own right.(1)
(iii) Its object must not be the acquisition of gain.(1)
(Heaton p 4)
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(c) Briefly indicate when a natural person’s legal personality begins, and what the
requirements are for the beginning of legal personality. (3)
(Heaton p 7)
(d) Who has to give notice of the birth of a child in terms of the Births and Deaths
Registration Act 51 of 1992? (2)
The duty to give notice of the birth rests on the child’s parents.(1) If neither of them is able to
do so, notice must be given by the person who has charge of the child(1) or by the person,
whom the parents or person having charge of the child, requests to do so.(1) Notice of the birth
of an abandoned child must be given by a social worker or authorised officer.(1)
(e) Simon disappeared nine years ago. His wife, Sonja, wants to approach the High Court for
a presumption of death.
(i) In terms of which procedure will Sonja apply for a presumption of death? (1)
(ii) Suppose that the presumption of death is granted. Sonja now wants to marry her
boyfriend, Nick. She wants to know what she needs to do to have her marriage to
Simon dissolved. Explain the legal position to her with reference to authority. (4)
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(ii) An order presuming someone’s death does not automatically terminate the marriage of
the missing person.(1) The surviving spouse(1) must bring a separate application for an
order dissolving the person’s marriage.(1) This application may be brought at the same
time that the presumption of death is made(1) or at any time thereafter.(1)
Question 2
(a) List the two requirements that have to be met in order to acquire a domicile of choice,
and explain briefly what each of the requirements entails. (4)
(i) The presence or factum requirement(1), which means that the person has to be lawfully
present at the particular place.(1)
(ii) The intention or animus requirement(1), which means that the person must have the
intention to settle there for an indefinite period.(1)
(Heaton p 43)
(b) Where is a mentally incapacitated person domiciled? Provide authority for your answer.
(2)
In terms of the Domicile Act(1) a mentally incapacitated person is domiciled at the place with
which he or she is most closely connected.(1)
(Heaton p 46)
(c) What do you understand by the concept “child born of married parents”? (3)
A child born of married parents is a child born of parents who are legally married(½) to each
other(½) at the time of the child’s birth(1) or conception(1) or at any intervening time.(1)
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(d) Fill in the relevant names of the two court cases that dealt with blood tests to determine
paternity:
(i) In ______________________________________________ the court held that it
does not have the power to interfere with the decision of the parent not to submit the
child to blood tests. (2)
(i) In S(1) v L(1) the court held that it does not have the power to interfere with the decision
of the parent not to submit the child to blood tests.
(ii) In YM(1) v LB(1) the Supreme Court of Appeal held that the High Court as upper
guardian of minors has the inherent power to order blood tests if the order is in the best
interests of the child.
(e) List the four components of parental responsibilities and rights in terms of section 18(2)
of the Children’s Act 38 of 2005. (4)
The four components of parental responsibilities and rights in terms of section 18(2) are:
(i) Care(1)
(ii) Contact(1)
(iii) Guardianship(1)
(iv) Maintenance(1)
(Heaton pp 65-66)
(f) Kgomotso and Rose, who are both unmarried, are involved in a relationship as a result of
which a little boy, Kabelo, is born. When Kabelo was born, they had been living together
for four years. After Kabelo’s birth, the couple started having some problems in their
relationship. They tried to make it work for two years after Kabelo’s birth, but they finally
separated when the little boy turned two. Kgomotso wants to know from you whether he
has full parental responsibilities and rights in respect of Kabelo. Advise him with
reference to authority. (3)
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In terms of section 21(1) of the Children’s Act(1) Kgomotso indeed has full parental
responsibilities and rights in respect of Kabelo because he lived with Kabelo’s mother in a
permanent life partnership(1) when he was born.(1)
Question 3
(a) In terms of section 15 of the Children’s Act 38 of 2005 certain persons may approach the
court to enforce the rights that are conferred by the Bill of Rights and the Children’s Act.
Name any two persons who are listed in this section. (2)
The following persons may approach the court to enforce the rights conferred by the Bill of
Rights and the Children’s Act (you should have mentioned any two):
(i) A child who is affected by or involved in the matter to be adjudicated.(1)
(ii) Anyone acting in the child’s interest or on behalf of another person who cannot act in his
or her own name.(1)
(iii) Anyone acting as a member of, or in the interest of a group or class of persons.(1)
(iv) Anyone acting in the public interest.(1)
(Heaton p 83)
(b) A minor may incur contractual liability if he or she acts with the assistance of his or her
guardian. List the various forms that the guardian’s assistance to the minor’s contract
may take. (3)
The guardian’s assistance to the minor’s contract may take the following forms:
(i) The guardian may act on behalf of the minor.(1)
(ii) The minor may personally enter into the contract with his or her guardian’s consent.(1)
(iii) The guardian may ratify the contract after it has been concluded.(1)
(Heaton p 89)
(c) As a rule the guardian does not incur personal liability in respect of the minor’s contract.
There are, however, a few exceptions to this rule. List the circumstances when a minor’s
guardian will incur personal liability for contracts concluded by the minor. (4)
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A minor’s guardian will incur personal liability for contracts concluded by the minor in the
following circumstances:
(i) the minor acted as his or her agent(1)
(ii) the guardian guaranteed the minor’s performance(1)
(iii) the guardian bound himself or herself as surety for the minor’s performance(1)
(iv) a guardian may incur liability on the basis of negotiorum gestio(1)
(Heaton pp 90-91)
(d) The names of four court cases dealing with minority are given below. Write the name of
the court case that offers authority for the statement in the first column on the dotted line
in the second column. (8)
Edelstein v Edelstein
Louw v MJ & H Trust
Nel v Divine, Hall & Co
Landers v Estate Landers
Statement Case
In this case restitutio in integrum was Landers v Estate Landers(2)
granted to a minor who had lost his (Note that the reference to this case was
inheritance through his guardian’s omitted from the 5th edition of the textbook.
negligence to protect his interests. Therefore, you do not have to study this case.)
This case adopted the benefit theory into Nel v Divine, Hall & Co(2)
our law when the court held that if a (Heaton p 96)
contract, taken as a whole, was to the
minor’s benefit the minor was bound by it.
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The court held that because the minor had Louw v MJ & H Trust(2)
misrepresented himself as emancipated (Heaton p 94)
when he bought a motor cycle from a major
without the necessary assistance, he could
not recover the part of the purchase price
he had already paid.
(e) On 9 October Ntokozo, a 16-year-old minor, concluded a contract of sale with Mr Smith,
a major, without the assistance of his legal guardian. In terms of the contract, Ntokozo
bought a scooter from Mr Smith for R15 000. On 9 November, a month after delivery of
the scooter, Ntokozo sold the scooter for R10 000. He spent the R10 000 as follows:
R1 000 on liquor and other refreshments for a party, R5 000 on a holiday in Durban,
R2 000 for food and R2 000 on accommodation.
(Heaton pp 96-97)
(ii) Mr Smith will be able to recover R4 000.(1) This is the amount he spent to obtain
necessaries, namely food and accommodation.(1) Ntokozo, the enriched party, would
have had to pay for the necessaries out of his own pocket.(1) The extent of his
enrichment is equal to the cost of the necessaries.(1)
(f) Louisa is a 13-year-old girl. Without her parents’ consent she recently visited a doctor for
a routine check-up. During the medical examination it was discovered that she suffers
from a congenital heart defect and that she urgently needs surgery. Write a paragraph in
which you explain who may consent to the surgery in this case. Remember to refer to
authority in your answer. (4)
Louisa is a minor who is older than 12 years.(1) Therefore she may consent to an operation on
her(1) if she is sufficiently mature and has the mental capacity to understand the benefits,
risks, social and other implications of the operation,(1) but in such event she must be duly
assisted by her guardian.(1)
Authority: Section 129 of the Children’s Act.(1)
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Question 4
Minority may be terminated in the following ways (any three of the following could have been
mentioned):
(i) Attainment of the prescribed age(1)
(ii) Marriage or civil union(1)
(iii) Venia aetatis and release from tutelage(1)
(iv) Emancipation(1)
(Heaton pp 107-109)
(b) Indicate whether the following statements are true or false. You do not have to explain
your answers.
(i) A minor may conclude a valid civil union, if he or she is assisted by his or her
guardian. (1)
(Heaton p 108)
(ii) A mentally ill person can be held liable on the basis of negotiorum gestio. (1)
(Heaton p 114)
(iii) A prodigal may marry without the consent of his or her curator. (1)
(Heaton p 136)
(c) Compare the legal capacity of a prodigal with the legal capacity of an insolvent. (4)
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The limitations on a prodigal’s legal capacity relate to his or her participation in commercial
dealings and handling finances.(1) An interdicted prodigal may not be a director of a company
or a trustee of an insolvent estate.(1)
There are certain offices that an insolvent person cannot hold.(1) An insolvent person may not
be a director of a company or mutual bank or a trustee.(1)
TOTAL: [70]
PLEASE ENSURE THAT YOU HAVE THE CORRECT EXAMINATION DATE AS IT APPEARS
ON THE FINAL EXAMINATION TIMETABLE.
You should study all the tutorial material for examination purposes, in other words
the only Study Guide for PVL1501, together with Tutorial Letter 102
the applicable sections from Heaton The South African law of persons 5 ed (2017)
all the cases on the list of prescribed cases in Tutorial Letter 101 (see 4.6.1), as
contained in Heaton Casebook on the South African law of persons 5 ed (2017)
all tutorial letters containing tutorial material
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PVL1501/201
In a problem-type question the facts are meant to give you guidance towards your
answer or conclusion. At no point are the facts meant to confuse or mislead you.
Make sure that you understand the facts before you attempt to answer the
particular question. Do not jump to a conclusion without explaining how you got
there.
Before you attempt to answer a question please look at the mark allocation, this
will give an indication of how much you are expected to write.
We would like to take this opportunity to give you some information on the examination and the
examination paper.
The paper will count 100 marks. It consists of two sections, section A and section B. Section A
has to be answered on a mark-reading sheet (and the answers should be copied onto the
examination paper), while the answers for section B have to be filled in on the examination
paper. The format of the paper is set out below:
Section B consists of four questions that will count 70 marks in total. The answers to
this section have to be filled in on the examination paper. This section is made up as
follows:
o Question 1 will consist of a few questions totalling 15 marks, dealing with study
units 1 to 7 of the study guide.
o Question 2 will consist of a few questions totalling 20 marks, dealing with study
units 8 to 11 of the study guide.
o Question 3 will consist of a few questions totalling 25 marks, dealing with study
units 12 to 19 of the study guide.
o Question 4 will consist of a few questions totalling 10 marks, dealing with study
units 20-23 of the study guide.
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In section B you will be given short and long questions. There will be direct questions as well as
problem-type questions.
The first examiners are Prof JM Kruger, Prof S Ferreira, Dr CS van der Westhuizen and Mr MT
Skosana. Prof J Heaton is the second examiner.
We trust that this tutorial letter will be of help to you. Best of luck with your preparation for the
examination!
UNISA
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