PRODIGALITY (marriage)

1.IDENTIFY THE PROBLEM

We are dealing with an issue of prodigality, capacities of a prodigal to be specific,
with regard to a prodigal’s matrimonial property system.
The legal question is whether the prodigal has the capacity to get married?
If the prodigal requires permission granted by the curator bonis to get married?
The type of matrimonial property system applicable to a prodigal?
2. CASE LAW
When we are talking about a prodigal, we are referring to a person who is wasteful,
who misuses his or her possessions, and who cannot handle their affairs in a
responsible manner, even though they are considered to have normal mental
abilities.
For a person to be considered a prodigal, an application for an order of prodigality is
required. To obtain this the court will require a declaration of prodigality, an interdict
limiting the prodigal’s capacity to manage his estate will be required for a curator to
be appointed.
It is important to note that prodigality does not affect an individual’s capacity to
participate in valid juristic acts.
Prodigal’s have limited capacity to act, this restriction is as a result of the court order
and not mental related.
This is confirmed in the case of Phil Morkel BP v Niemand 1970 3 SA 55 (c) where
it was stated that a prodigal’s capacity is limited because they lack necessary
judgement to know which transaction, they should be party to, and not because they
cannot take part normally in the creation of an obligation.**
Although a curator may be appointed for a prodigal, there are some instances in
which the prodigal has full capacity to act and may execute some processes without
the help of a curator, these include engagement and marriage related matters. It is
still unclear which matrimonial property system applies to the marriage of a prodigal,
therefore the matrimonial property system which favor’s the prodigal will apply.
3. APPLICATION
V can be able to marry since he has full capacity to act when it comes to
engagement and marriage related matters.
The curator cannot make decisions concerning marriage, because the prodigal does
not require the curators consent regarding such personal matters.
It is still unclear which matrimonial property system applies to a prodigal; it is
therefore advisable for the couple to execute a valid antenuptial contract. This will
free both parties from being married in community of property and the non- prodigal
party will be free from any loss that may be caused by the prodigal’s behavior at a
later stage.

NOTE IF NOT ASK ABOUT MARRIAGE RELATED MATTERS YOU MIGHT BE

ASK ABOUT THE CAPACITY OF THE PRODIGAL TO MAKE A WILL.

MENTAL ILLNESS(MARRIAGE)
1.IDENTIFY THE PROBLEM.
We are dealing with the issue of mental illness with regard to marriage related
matters.
The legal question is whether a mentally ill person can enter into marriage.
2. law and case law if any.
According to common law, a mentally ill person is defined as someone whose mental
conditions have been affected in a way that his behavior and emotions are altered.
They lack the ability to grasp the consequences of their acts and cannot make
proper, sane or rational decisions.
Modern law cites the definition of the term mental illness looking at specific case law.
In Pheasant v Warne 1922 AD 481, it was held that a mentally ill person is someone
who is incapable of understanding and taking responsibility of the possible nature
and consequences of their actions.
Also, in Lange v Lange AD 332, it was held that mental illness can be defined as a
state in which a person cannot understand and cannot take responsibility of the
nature and consequences of his acts, they concluded that even if the person
understood such consequences but was found to have been influenced by delusions
or paranoia to perform a juristic act, he is still deemed to be mentally ill.
The general rule is that all persons are deemed to be mentally capable, and to have
the capacity to act, until this is proven otherwise, meaning that it is a rebuttable
presumption.
The responsibility to prove mental illness lies with the person claiming incapacity
because of mental illness. It is important to consider the person’s state of mind at the
time he/she concluded a transaction or any act. The courts, need valid evidence,
such as medical and psychological evidence to conclude their finding’s. The
presence of the expert witness is accepted by the courts.
The lucid interval moment also plays an important role in determining the state of a
person during which he/she concluded an act/ transaction. A lucid interval is defined
as a phase of clarity or a state of mind, in which a person is conscious of his
activities. During this phase, any act concluded will be deemed valid in the eyes of
the law, but if the mentally ill person enters into a transaction or any act such act will
remain void.
Certification also plays an important role in determining mental illness, a non-certified
person is said to be mentally stable until such is proven otherwise. While a certified
person is considered to be mentally ill by the courts.
A marriage concluded by a mentally ill person is not valid, and parties will be
restored to the same position they would have been before the marriage was
concluded. None of the matrimonial property systems apply.
If a mentally ill person happened to be married in community of property, the courts
may suspend his powers to deal with the joint estate.
S20(1) of the matrimonial property Act state that the immediate division of the joint
state will be ordered if the sane spouse satisfies the court that:
 Her interest in this state will be prejudiced by the conduct of the mentally ill
spouse; and
 That no other person will be harmed by the order.

3.APPLICATION
In this case it is clear that Giselle suffers from mental illness as defined in Lange v
Lange AD 332, since an influence of hallucinations and paranoia played a huge
impact in her decision making regarding her marriage, furthermore Giselle knew
perfectly well that she was entering into a marriage and understood the
consequences of such an act.
Since Giselle has never been certified to be mentally deficient by the court, Harry
would need to present a proof/ evidence of mental illness suffered by Giselle at the
time their marriage took place.
Harry will also have to convince the court that no party will be affected, or that his
interest in the joint estate may be prejudiced by Giselle in terms of s20(1) of the
matrimonial property Act.
If Harry does present a proof of mental illness suffered by Giselle at the time their
marriage took place, then there will be no need for a divorce since, a marriage
entered into by a mentally ill person is void.

MENTAL ILLNESS (APPOINTMENT OF THE CURATOR)

1.IDENTIFY THE PROBLEM
We are dealing with an issue of appointment of curators and mental illness.
The legal question is whether a mentally ill person can be appointed a curator.
2. LAW/ APPLICABLE CASE LAW
According to common law, a mentally ill person is defined as someone whose mental
conditions have been affected in a way that his behavior and emotions are altered.
They lack the ability to grasp the consequences of their acts and cannot make
proper, sane or rational decisions.
Modern law cites the definition of the term mental illness looking at specific case law.
In Pheasant v Warne 1922 AD 481, it was held that a mentally ill person is someone
who is incapable of understanding and taking responsibility of the possible nature
and consequences of their actions.
Also, in Lange v Lange AD 332, it was held that mental illness can be defined as a
state in which a person cannot understand and cannot take responsibility of the
nature and consequences of his acts, they concluded that even if the person was
found to have been influenced by delusions or paranoia to perform a juristic act, he
is still deemed to be mentally ill.
A curator is someone who is appointed by the court to take care of the interests of
the mentally ill person.
The mission of the curator is determined by the administration of states Act 66 of
1965. An application for appointment of a curator is made by any person over the
age of 18, spouse or next of kin of the mentally ill person.
We have three types of curators:
 Curator personae
Who is appointed to deal mainly with the mentally ill person’s body.
The general appointment of the curator is that it will be responsible for making
decisions regarding -1.the persons place of stay.
2. his/her health status.
3. body of the mentally ill individual.
The specific appointment of the curator personae deals only with specific decisions/
responsibilities, an example of these are- 1. consent to special medical treatment
2. consent to an operation.
 Curator bonis
This type of curator focuses mainly on property related matters.
The general appointment state that the curator owes duty for all patrimonial affairs of
the mentally ill person, such as- 1. Managing and running property.
2. Managing and administering financial related
Matters.
3. Managing contractual proceedings on behalf of
The mentally ill person.
The specific appointment of the curator bonis deals only with specific responsibility,
an example – making investments.
The curator bonis must perform all the duties so as to favor and benefit the mentally
ill person, and he cannot claim the possessions of the mentally ill person as his/her
own. The curator bonis cannot perform acts of a too personal nature such as –
1. parenting the mentally ill person.
2. Interfere in divorce proceedings.
3. Making a will on behalf of the mentally ill person.
The mentally ill persons estates will not be sold without the consent of the minister
of the high court.
Lastly, we have Curator ad litem.
Who is responsible for managing and administering the legal proceedings of the
mentally ill person, its duties may also include that of a curator bonis.
In terms of the Mental Health Care Act 17 Of 2002 the court also has power to issue
an administrator who will take care of the property affairs of a mentally ill person.
The appointment of the administrator is to be made by the Master of the high court.
Only persons over the age of 18, spouses and next of kins of a mentally ill person
can apply for an appointment of the administrator.
The responsibility of the administrator includes taking care of property affairs and
taking care of their business and other undertakings.

3.APPLICATION
For an appointment of the curator, an application for the declaration of mental illness
will be required. Mental and psychological evidence must be issued to the high court.
The result obtained as a result of mental assessments will help the court in finalizing
their findings.
If the person is proved to be mentally incapable, the court will then appoint a curator
on his/her behalf.

INTOXICATION (drugs and alcohol)

1.Identify the problem
We are dealing with an issue of intoxication.
The legal question is whether an intoxicated person can enter into a contract.
2. law and case law
Intoxication can be described as state in which a person's normal capacity to act or
reason is inhibited by alcohol or drugs.
Intoxication only affects a person’s capacity to act only for the period in which the
intoxication lasts.
A person is said to be deprived of his capacity to act due to intoxication if he was
unaware of his participation in certain transactions and had no idea of its
consequences.
In Van Matzinger v Badenhorst 1953 4 SA 29/(T) it was stated that “the person must
be deprived of his powers of reasoning”.
Transaction entered into by an intoxicated person is therefore regarded as being
void/ invalid. The responsibility to prove intoxication lies with the party who claims
that the person was indeed intoxicated.
Persons who are temporally affected by the drugs / alcohol can be held liable on
undue enrichments and negotiorium gestio, because the responsibility is not based
on the availability of a valid contract.
An intoxicated person cannot be held accountable/ can escape civil wrongs and
crimes.
This is seen in S v Chretien 1981 (1) SA 1097 (A) where it was held that a person
can escape criminal responsibility if the extent of his/her intoxication caused her to
deny or not appreciate his unlawful acts.
The Criminal Law Amendment Act (CLAA) came into action as a result of what was
held in S v Chretien case.
The CLAA stated that if a person committed a prohibited act and was found not guilty
of a crime because he was intoxicated, the person will still be found guilty of a crime.
S1(1) provides that it is a criminal offence to use drugs intentionally, with an intention
of getting drunk of drugged, so that you can commit a prohibited act.
3.application.
In this case Jensen entered into a contract while he was intoxicated, in other words
he was deprived of his capacity to act due to intoxication, since he was unaware of
his participation of exchanging a car for alcohol and had no idea of its
consequences.
According to Van Matzinger v Badenhorst 1953 4 SA 29/(T) his power of reasoning
was affected by alcohol.
Jensen can get his car back since he and Matt agree that indeed he had consumed
alcohol and he even traded his car for more alcohol, therefore his capacity to reason
was inhibited by alcohol.
Matt can only sue for undue enrichments, since Jensen had consumed his alcohol,
and Jensen would have to replace the bottle of brandy or compensate an equivalent
amount of money to Matt, so that both parties would be restored to the same position
they were before the transaction took place.
In conclusion a contract entered into by an intoxicated person is deemed to be void.
Physical disability

1.Identify the problem

We are dealing with an issue of physical disability with regard to an appointment of a
curator.
The legal question is whether a physically disabled person be able to acquire a
curator to care for them.

2. law and case law

A physical disability is a condition affecting a part of a person’s body limiting their
physical functioning, such as walking, speaking, etc, making them incapable of
managing their own affairs, it is not related to mental illness.

Age, serious illnesses, hearing and speech defects, epilepsy are examples of why
people can be deemed incapable of managing their own affairs.

The decision of a physically disabled person is important in determining whether a

curator should be appointed on their behalf.

The importance of this is seen in the case of Ex parte Wilson: In re Morrison 1991 (4)
SA 774 (T): court dismissed an application for the appointment of a curator for a 90-
year-old woman, because she was deemed to be physically capable of managing
her own affairs.

A physically disabled person must be able to understand the proceedings of the

process of appointing a curator. If he/she does not understand the proceedings,
curator ad litem will be appointed on his/her behalf.

Any person of age, over 18 or a family member can make an application on behalf of
a physically disabled person to be placed under curatorship.

An application of a curator ad litem must be submitted first then followed by the

curator bonis.

Curatorship does not affect a person ability to perform juristic acts or to manage their
own affairs if they feel they able to perform such. It also does not affect the persons
civil wrongs and criminal responsibilities.

In Pienaar v Pienaar Curator 1930 OPD 171 it was held that a person held under
curatorship can be able to Marry, make a will enter into contracts and litigate if she is
physically and mentally able to do so.

Transaction entered into by a physically disabled person is not binding and void for
want of capacity.
Application

The woman is diagnosed to be suffering paralysis as a result of a stroke, but she is

considered to be mentally competent since she suffered very little from any defect of
the mind. This clearly tells us then that she is suffering from physical disability.

She desires to that a curator be appointed on her behalf, and she understands the
repercussion of such interest.

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) CHAPTER8

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. CHAPTER 7

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 lose 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) CHAPTER 2
PARENT AND CHILD PARTENITY PROOF

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.

How does deafness influence a person's capacity to act? Briefly explain your
answer. (5) PHYSICAL DISABILITY

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. 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.

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)
DOMICILE

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.

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 life partnership, or

- regardless of whether he has lived or is living with the mother,

consents to be identified as the child’s father, and

- 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.

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). 20.1 A will thus be domiciled in South Africa until he has acquired a new
domicile of choice.

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 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:

-he 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,

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.

Briefly indicate how intoxication affects a person's capacity to act. (2)

If a person has been influenced 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, 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 that
person to conclude the contract, or that the person is more willing to conclude the
contract: the person must be influenced to such an extent that he or she does not
have the faintest notion of concluding a contract, or of the terms of the contract. The
contract will then be void.

35. Mr X disappeared seven years ago after going fishing on the rocks on a
stormy day. Mrs X's application to the High Court to have a presumption of
death expressed concerning her husband, was unsuccessful. Can Mr X's
estate still be divided among his heirs? Discuss with reference to authority.
(5)

In a given case the court may be of the opinion that the circumstances do not justify
the granting of the order presuming death, but it may nonetheless order that the
missing person's property be divided amongst his or her heirs. On occasion the
courts have ordered that the heirs must provide sufficient security for the return of
the property, or its value, should the missing person reappear.

In re Kannemeyer (1899)16 SC 407, for example, 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 security.

In Ex parte Pieters 1993 (3) SA 379 (D) (Casebook [6]) the court also refused to
issue a presumption of death but was willing to order division of the missing person's
estate. However, in this case the amount in the estate was so small that the court did
not require security from the heirs.

Ben and Karin, both unmarried, were involved in a relationship as a result of

which Karin fell pregnant. She gave birth to a girl three years ago. Ben
requested Karin to submit herself and her daughter to blood tests in order to
attain certainty on whether he could be the father of the child. However, she
refused. With reference to case law, discuss the question whether the court
can compel Karin to submit herself and her daughter to blood tests.
(16)

ln cases where blood tests are submitted to voluntarily, the courts accept blood tests
as sufficient proof that a man cannot be a child's father. However, there is no certain
answer to the question of whether the court may compel a person to undergo blood
tests despite that person's refusal. The following cases deal with the question of
whether the court can compel children to undergo blood tests despite the parent's
refusal: In 0 v 0 1992 (4) SA 137 (C), Seetal v Pravitha 1983 (3) SA 827 (D)

and M v R 1989 (1) SA 416 (0) the courts decided that they could order a child to be
submitted to blood tests despite the parent's refusal, if the tests are in the best
interests of the child. However, in S vL 1992 (3) SA 71 3 (E) the court decided that it
did not have the power to interfere with the decision of the mother that the child
should not undergo blood tests, even if the court would have come to a different
decision.

The court held that ordering someone to submit to a blood test is not merely a
procedural order. The following cases deal with the question whether the court can
compel adults to undergo blood tests in spite of the parent's refusal: In M v R above
the court decided that it did have the power to compel an adult to undergo blood
tests in order to establish paternity, since the High Court has the inherent power to
regulate its own procedures.

In S v L above and Nell v Nell1990 (3) SA 889 (T), the courts decided that they did
not have the power to compel an adult to undergo blood tests, because such an
order was not merely a procedural order. In O v O above, the court stated that there
was no statutory or common-law power enabling the court to order an adult to
undergo blood tests for the purpose of establishing paternity.

Section 2 of the Children's Status Act 82 of 1987 creates a presumption that, if a

party in a paternity dispute has been requested by the other party to submit himself
or herself, or the child over whom he or she has parental authority, to blood tests,
and he or she refuses to do so, that party wishes to conceal the truth concerning the
child's paternity. Cronje & Heaton indicate that it may be argued that an order
compelling a person to undergo blood tests infringes his or her right to privacy and
bodily and psychological integrity (which includes the right to security in and control
over the body, as well as the right not to be subjected to medical or scientific
experiments without informed consent. They add that the infringement of the rights
of privacy and bodily integrity would be justifiable if it were in the best interests of the
child to determine paternity by ordering a person to undergo a blood test.

Xavier and Yvonne, both South African citizens who are domiciled in South
Africa, decide to get married in Canada during their holiday there. (a) Which
legal system determines whether Xavier and Yvonne may enter into a valid
marriage? Explain your answer. (2)

A. The law which determines a person's status is the law which is in force at the
place where that person is domiciled, that is, his or her lex domicilii.
Therefore, South African law will be applied to determine whether Xavier and
Yvonne may marry each other because they are both domiciled in South
Africa.
B Which legal system determines Xavier and Yvonne's matrimonial
property system? Explain your answer.

The lex domicilii of a man at the time of his marriage dictates what the
matrimonial property regime of the marriage will be. Therefore South African
law will determine Xavier and Yvonne's matrimonial property system

. (c) Suppose Xavier and Yvonne are validly married to each other and
that Xavier is domiciled in Pretoria. Can Yvonne, being a married
woman, acquire a domicile of choice elsewhere in terms of South
African law? Very briefly explain your answer with reference to
authority. (3)

Section 1(1) of the Domicile Act 3 of 1992 provides that every person who is
18 years old or above, as well as every person under the age of 18 who has
acquired the status of a major is competent to acquire a domicile of choice,
regardless of such a person's sex or marital status. Therefore Yvonne, being
a married woman, can indeed acquire a domicile of choice elsewhere.

42. Mavis and James, both unmarried, are involved in a sexual

relationship as a result of which Mavis becomes pregnant. When Mavis
is four weeks pregnant, she catches James in bed with another woman.
Mavis terminates her relationship with James. Immediately thereafter,
she meets Trevor. She does not disclose her pregnancy to Trevor. A
month later she and Trevor get married. Seven months after their
wedding, she gives birth to a baby boy, Sammy. Trevor suspects that
Sammy is not his biological son and requests Mavis to submit herself
and Sammy to blood tests to obtain certainty as to the child's paternity.
Mavis refuses to do so. PROOF OF PATERNITY

(a) What is the presumption of paternity regarding a child who is born

to a married woman

There is a rebuttable presumption in our law that a child born from a woman
who was legally married at the time of the child's conception or birth, or at any

intervening time is the child of that woman's husband and not some third
party. Therefore the child is presumed to be the couple's legitimate child. The
presumption is expressed in the maxim pater est quem nuptiae demonstrant
(the marriage indicates who the father is).

(b) Fully advise Trevor on whether the court can compel Mavis to
submit herselfand Sammy to blood tests. Substantiate your answer with
reference to authority. (15)

In cases where blood tests are submitted to voluntarily, the courts accept
blood tests as sufficient proof that a man cannot be a child's father. However,
there is no certainty as to whether the court can compel a person to undergo
blood tests despite that person's refusal.
 The following cases deal with the question whether the court can compel
children to undergo blood tests despite the parent's refusal: In 0 v 0 1992 (4)
SA 137 (C), Seetal v Pravitha 1983 (3) SA 827 (D) and M v R 1989 (1 ) SA 41
6 (0) the courts decided that they could order a child to be submitted to blood
tests despite the parent's refusal, if the tests are in the best interests of the
child.

However, in S v L 1992 (3) SA 713 (E) the court decided that it did not have
the power to interfere with the decision of the mother that the child should not
undergo blood tests, even if the court would have come to a different decision.
The court held that ordering someone to submit to a blood test is not merely a
procedural order.

The following cases deal with the question whether the court can compel
adults to undergo blood tests despite their refusal to do so: In M v R above
the court decided that it does have the power to compel an adult to undergo
blood tests in order to establish paternity, since the high court has the
inherent power to regulate its own procedures.

In S v L above and Nell v Nel 1990 (3) SA 889 (T) the courts decided that they
do not have the power to compel an adult to undergo blood tests, because
such an order is not merely a procedural order.

In 0 v 0 above, the court stated that there was no statutory or common-law

power enabling the court to order an adult to undergo blood tests for the
purpose of establishing paternity.

Section 2 of the Children's Status Act 82 of 1987 creates a presumption that,

if a party in a paternity dispute has been requested by the other party to
submit himself or herself, or the child over whom he or she has parental
authority, to blood tests, and he or she refuses to do so, that party wishes to
conceal the truth concerning the child's paternity.

Cronje & Heaton indicate that it may be argued that an order compelling a
person to undergo blood tests infringes his or her right to privacy and bodily
and psychological integrity (which includes the right to security in and control
over the body, as well as the right not to be subject to medical or scientific
experiments without informed. They add that the infringements of the rights of
privacy and bodily integrity would be justifiable if it were in the best interests of
the child to determine paternity by ordering a person to undergo bl

DOMICILE RELATED QUESTIONS

A and B, both South African citizens, who are domiciled in South Africa,
decide to get married in Brazil during their holiday there. Which legal system
determines which matrimonial property system will apply to their marriage?
Explain you answer. (3)
Use can be asked to use the three important steps if the quiz is out of 10
marks.

1. Identify the problem.

We are dealing with an issue of Domicile, with regards to a matrimonial

property system of the married couple.

2. What the law says.

Include the importance on Antenuptial contrant.

In Frankel Estate v The Master 1950 (1) SA 220 (A); Sperling v Sperling 1975 (3) SA
(include the cycalovenia case) 707 (O), it was held that the couple’s matrimonial
domicile is the place that the husband considers home on the day of the wedding.
In this case, although the marriage took place in Brazil, they are both domiciled in
South Africa. Therefore, the matrimonial property regime of the marriage will be
governed by the South African law. The SCA held that this rule must apply even if
the parties had already agreed at the time of the marriage to settle elsewhere.
The South African law continues to state that in the absence of the execution of a
valid antenuptial contract, the couple will be deemed to have been married in
community of property and the law of the place of the husband’s domicile prevails
where the marriage is concluded in a territory outside the couple’s (one or both
parties) domicile. you can also critique the fact that this rule is geneder based
accormodating etc form extra mark.
3.Application.
The matrimonial property system will be determined by the husband’s
domicile, include ANC, that everything shared will be 50/50.

A citizen of the Netherlands who is domiciled in Belgium, enters into a

contract while on holiday in South Africa. Which legal system determines his
capacity to act? Explain you answer. (3)

In terms of the South African Law the status of a person is determined by the law of
the place she/ he considers home (domicile).

It is importance to understand that Domicile and citizenship are two different things,
although sometimes they may coincide.

Citizenship is related to public law matters, such as the person’s ability to vote for the
government of a particular country. While domicile is concerned with private law
matters.

Since the person is domiciled in Belgium but considered citizen of Netherlands, her
status in a SA court will be determined by Belgian law, which is her home.
Name and briefly discuss the requirements for the acquisition of a domicile of
choice as set out in section 1(1) and (2) of the domicile Act 3 of 1992.

Law of domicile is regulated by the Domicile Act 3 of 1992 which come into operation
of the 1 August 1992.

Domicile Act is not retrospective. Meaning all transaction passed under this Act
before the 1 of August 1992 will not be affected.

The Domicile Act provides for two kinds of domicile:

 Domicile of choice

 Domicile of closest connection

Domicile of choice refers to a place/ home, which a person who has capacity
to act prefers to obtain on her own.

S1(1) of the Domicile Act 3 of 1992 states that every person over the age of 18 and
every person under the age of 18 who has acquired majority status can acquire a
domicile of choice, sex or marital status are not concerned, mentally ill persons
cannot acquire a domicile of choice.

S1(2) of the Domicile Act 3 of 1992 states that a person can establish a domicile of
choice when he is lawfully present at a particular place and has the intention to settle
there for an indefinite period.

Therefore, it is important that a person meets the necessary requirements in order to

acquire a domicile of choice, these requirements are that;

1. the person must be competent to acquire a domicile of choice he/she must be

over 18 years of age if underage the majority status should apply to them. The
person should also be mentally capable.

Furthermore, if they have already acquired the domicile of choice, they need to be
physically and lawfully present at the place. The animus manendi requirement also
applies since the person need to have an intention to settle at the place for an
indefinite period.

Our constitutional law also supports this and states that a

 Person must actually settle at the particular place = FACTUM

REQUIREMENT (factual presence)

 person must have the intention of residing permanently at that place =

ANIMUS MANENDI REQUIREMENT (intention to remain)
Once a domicile of choice has been established at a particular place, the person’s
continued presence is not required.

Only lawful presence is recognised for the purposes of acquiring a domicile of choice
– s1(2).

An illegal alien/prohibited immigrant cannot acquire a domicile of choice in SA.

Person can acquire a domicile of choice even if he only has temporary permission to
remain in SA, provided that the possibility of acquiring permanent residence is not
too remote/ far-fetched.

All that is required is a moment of lawful presence and intention to remain at the
place for an indefinite period.

A person who has acquired a domicile at a particular place and who leaves to
escape from the process of law does not lose his domicile at the place from which he
fled.

Common law: intention not to leave the place concerned; intention of residing
permanently at the place concerned.

Is the animus requirement complied with if the person does in fact have the intention
of settling at a new place of residence but knows or foresees a possibility of leaving
the place at a later stage or should have foreseen a possibility?

Johnson v Johnson 1931 AD 391: if the answer to the above question is yes then
animus requirement has not been complied with

Ley v Ley Executors’ 1951 3 SA 186 (A) court held that it is only an existing doubt as
to whether a person wishes to make a certain place her domicile that will exclude the
animus.

Above problems remedied by the Domicile Act.

S1 (2) provides: Domicile of choice is acquired by a person who is lawfully present at

a particular place and has the intention to settle there for an indefinite period.

Wording of s1(2) requires only that the person forms an intention to settle for an
indefinite period.

Therefore, a person can satisfy the animus requirement even if he envisages moving
at an unknown future time.

To satisfy the animus requirement the person must be able to carry out her intention
of settling at the particular place.

Can a married woman acquire he own domicile of choice? Substantiate you

answer. Refere to subsection 1 of domicile Act 3 of 1992.
S1(1) of the Domicile Act 3 of 1992 states that every person over the age of 18 and
every person under the age of 18 who has acquired majority status can acquire a
domicile of choice, sex or marital status are not concerned, mentally ill persons
cannot acquire a domicile of choice.

Previously, a woman had a domicile of dependence, meaning she was to be settled

in her husband’s place of stay/ domicile.

This condition applied regardless of where she was exercising her rights and duties.

Currently a woman is able to acquire her own domicile of choice which could be
different from that of her husband.

Explain the principles, as set out in the Domicile Act 3 of 1992, applicable to
domicile of children.

Previously, a child’s domicile was one of dependence, the child followed the domicile
of her mother or father depending on the marital status of her parents.

If her mother was unmarried, the child followed the domicile of her mother.

If the child’s parents were married, the child followed the domicile of her father.

Now, it is regulated by s2 (1) of the Domicile Act.

s2 (2) provides: if children have their home with one/both parents, it shall be
presumed that the parental home is the children’s domicile.

S2(2) creates a rebuttable presumption tt children are most closely connected with
the parental home if they live with their parents most of the time.

Term ‘parents’ include adoptive parents and parents who are not married to each
other and who do not live together.

Is it possible for a prohibited immigrant to acquire a domicile of choice here in

South Africa? Explain you answer.

An illegal alien/prohibited immigrant cannot acquire a domicile of choice in SA even

if she/he has the intention to settle in SA permanently without a valid permission
from the authority.

In other words, a person can establish a domicile of choice if his presence is legal
even if the continued lawfulness of his presence is somewhat uncertain.
In Van Rensburg v Ballinger 1950 4 SA 427 (T) the court held that a prohibited
immigrant whom the authorities openly permit to reside in SA could acquire a
domicile of choice in SA.

Person can acquire a domicile of choice even if he only has temporary permission to
remain in SA, provided that the possibility of acquiring permanent residence is not
too remote/ far-fetched.

All that is required is a moment of lawful presence and intention to remain at the
place for an indefinite period.

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 on the
Seychelles while deciding where to settle permanently. Where will he be
domiciled during this period? Explain you answer. (5)

It can also be for 10 marks.

1, identify the problem

We are dealing with an issue of Change of Domicile, reviving a domicile, with regard
to tenacity.

The legal question is whether a parson can be without a domicile at any point of
time.

2, law of case law

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).

. Also give the meaning of domicile of origin.

3, application

A will thus be domiciled in South Africa until he has acquired a new domicile of
choice.

Explain the previous domicile Act (i.e., before 1 August 1992) and the present
domicile Act (i.e., after 1 August 1992) with regard to:

(a) an insane person

(b) an extramarital child.

 (c) a person who has lost his domicile and who has not yet assumed
a new domicile.

(d) married woman.

a. Insane person / mentally ill person.

Previously, a mentally ill person had a domicile of dependence. He followed the

domicile of his curator or of the place where he/she went mentally insane.

Now, the position is regulated by s2 (1) of Domicile Act.

A mentally ill person is domiciled at that place with which they are most closely
connected.

b. An extramarital child

Previously, a child’s domicile was one of dependence the child followed the domicile
of her mother or father depending on the marital status of her parents.

If her mother was unmarried, the child followed the domicile of her mother.

Now, it is regulated by s2 (1) of the Domicile Act.

s2 (2) provides: if children have their home with one/both parents, it shall be
presumed that the parental home is the children’s domicile.

S2(2) creates a rebuttable presumption that children are most closely connected with
the parental home if they live with their parents most of the time.

Term ‘parents’ include adoptive parents and parents who are not married to each
other and who do not live together.

c. A person who has lost his domicile and who has not yet assumed a new
domicile.

Deals with tenacity..NB

S5: Acquisition/ loss of domicile is determined by a court on a balance of

probabilities.

A change of domicile is never merely accepted.

D. married woman.

Previously, a wife also had a domicile of dependence, she followed the domicile of
her husband, regardless of where she was exercising her rights and duties.
Now, the current position is that a wife is able to acquire her own domicile of choice
which could be different from that of her husband.

Can a member of the armed forces acquire a domicile of choice at the place
where he is stationed?

Previously Military staff could not acquire a domicile of choice at the place they were
stationed. In 1945 it was declared that even if the military member had an intention
of settling permanently in South Africa, he was forbidden from obtaining a domicile of
choice.

Reason: It is their employers, or the state has power in making decisions regarding
their stay and they cannot give effect to their intention of setting at a particular place.

In McMillan v McMillan 1943 TPD 343, the reason for this inability to attain a domicile
of choice was said to be the fact that the military members residence is RSA was not
voluntary, as they are on a mission. It continued to say their stay did not comply with
the Animus requirement, in other words their presence in RSA, was not based on the
intention to stay.

But the Domicile Act submitted that military staff, can like any other person over the
age of 18 years who has the necessary mental capacity, acquire a domicile of choice
i.t.o. s1 of the Act.

After 1945 a new approach was adopted.

Baker v Baker 1945 AO 708 court stated obiter dictum that a person could acquire a
domicile of choice in SA provided that such person had a final and deliberate
intention of abandoning his previous domicile.

Naville v Naville 1957 1 SA 280 (c) court decided that:

 A diplomat can acquire a domicile of choice in SA while still in the service of a

foreign country.
 Must be proved that the diplomat had a firm and final intention of abandoning
his previous domicile and of settling in SA permanently.

Carol was born in South Africa in 1975. In 1998 she got married to Ben, who is
domiciled in Australia. The couple has since settled in Australia. In 1999 they
attended a congress in England and during their stay in London they decided
to end their marriage and go their separate ways. Carol stayed in London
temporarily, but intended to settle in Cape Town permanently in the near
future. Whilst in England, Ben sued Carol for a divorce in the Cape High
Court.
Ben submitted in his particulars of claim that the Cape High Court ‘has
jurisdiction to hear the case because Carol has had the physical intention to
settle in Cape Town for quite some time. In the alternative, that her domicile of
origin is being revived’.
You are on the bench and have to decide whether the court has jurisdiction to
hear the matter. What will your finding be? Discuss.

1. Identify the problem.

We are dealing with an issue of choice of domicile with regards to tenacity of

Domicile.

The legal question is whether the requirements for domicile of choice has been
complied with and whether a domicile of origin can be revived.

2. Law/ Case law

Domicile can be referred to as the country that a person considers to be his

permanent home, where one lives, and law also consider the place to be his/her
home.

This is also defined in (Mason v Mason 1885 4 EDC 330) case where it was held
that a domicile is your legal home, the place the law regards as your permanent
home.

The issue of domicile of choice is important, in terms of Domicile Act 3 of 1992,

domicile of choice is defined as a place/ home, which a person who has capacity to
act prefers to obtain on her own.

S1(1) of the Domicile Act 3 of 1992 states that individuals who are of age of majority,
age of 18, including minors who have acquired majority status can acquire a domicile
of choice, sex or marital status are not of concern, mentally ill persons cannot
acquire a domicile of choice.

S1(2) of the Domicile Act 3 of 1992 states that for a person to establish a domicile of
choice he must be lawfully present and with the intention of inhabiting a particular
place for an indefinite period.

Therefore, it is important that a person meets the necessary requirements in order to

acquire a domicile of choice, these requirements are that;

1. the person must be competent to acquire a domicile of choice he/she must be

over 18 years of age if underage the majority status should apply to them. The
person should also be mentally capable.

2. Furthermore, if they have already acquired the domicile of choice, they need to
be physically and lawfully present at the place. The animus manendi
requirement also applies since the person need to have an intention to settle at
the place for an indefinite period.
We must bear in mind that the physical presence and the intention of the person to
settle permanently usually coincide.
Person must be physically present with the intention to inhabit the place indefinitely.
The physical presence requirement becomes valid the moment that the person
arrives in a place.

In Frankel Estate v The Master 1950 (1) SA 220 (A)

It was held that it does not matter whether an individual’s residence is of a short
duration of time if it is confirmed that the person had the intention of residing at a
specific place.

Only lawful presence is recognised for the purposes of acquiring a domicile of choice
– s1(2).

A person who has acquired a domicile at a particular place and who leaves to
escape from the process of law does not lose his domicile at the place from which he
fled.

3. Application

Carol is not Domiciled in Cape Town as she only complies with the animus
requirements.

Her factual and animus must exist simultaneously at one time or the other.

She must be physically present.

Cape town court has no jurisdiction to hear the matter.

Second problem identified. Whether a domicile of origin can be revived.

2, law/ case law

Tenacity states that

 Every person must have a domicile at all times.

 No person can ever be without a domicile.
 Domicile Act provides that no one loses their domicile until another domicile is
acquired.

Domicile of origin is assigned to a person at birth.

In the past, a person’s domicile of origin revived if she abandoned her domicile of
choice without assuming a new domicile.

Domicile Act changed the above.

S3(1) of the Domicile Act provides that no one loses their domicile until they have
acquired another domicile, whether by choice or operation of law.
Therefore, domicile of origin does not revive.

3, Application
1. Carol’s claim in the alternative does not further her either
2. S3(1) of the Domicile Act provides that no one loses their domicile until they
have acquired another domicile, whether by choice or operation of law.
3. Carol retains her previous Australian Domicile until she acquires another.
4. Therefore, because the defendant must be sued in the court where she/he is
domicile, the cape high court will not have jurisdiction.

END OF LEGAL SUBJECTIVITY QUESTIONS.

1.Fully discuss the consequences of a presumption of death order.(10)

Presumption of death refers to an instance whereby a person disappears for some time, that
it is concluded she/ he may no longer be alive.
The common law and statutory presumption of death are considered to be avenues of most
importance in the presumption of deaths.
The common law presumption of death according to
Roman–Dutch Law: had no system regulating matters relating to the ability to obtain an
order presuming death and that regarding remarriage or division of the estate.
English Law: presumption of death arises after seven years.
South African law also has its rules concerning the presumption of death.

 The court decisions, passed by the legislature gave rise to rules regulating the
presumption of death.
 Any interested party, a family member can approach the high court to grant a
presumption of death order.
 Application is brought by way of notice of motion together with affidavits.
 Applicant must set out the grounds for the application in the affidavits.
 Applicant must have sufficient proof that the missing person is dead.

Procedure in court when the application is brought:

 After hearing the application, the court sets a return date on which the final order will
be made. (temporary order = rule nisi).
 Application is ordered to give notice of rule nisi to all interested parties.
 Applicant has to publish the rule nisi in the Government Gazette an a newspaper in
circulation in the area where the missing person use to live.
 This enables interested parties to object to the granting of the final order or to bring
further facts to the notice of the court that could either rebut or strengthen the
presumption of death.
  On the return day if the court is satisfied on a balance of probabilities that the missing
person is dead, a final order will be made presuming the missing person dead.

3 1 2 Factors which the court considers: Re Beaglehole 1908 TS 49.

Length of time that the person has been absent

No fixed period of time is required
 Ex parte Verster 1956 1 SA 409 (C): Absence of 30 years was insufficient reason for
a pronouncement of death order
 Ex parte Dorward 1933 NPD 17. A presumption can be pronounced after a short
absence if the probability of death is very strong.
Circumstance surrounding the person’s disappearance
Person was last seen in circumstances which could easily have resulted in his death. a
person disappears during a snow
 Eg: strain while mountaineering or the person went for a swim in the sea and
disappeared.
 Ex parte Alexander 1956 2 SA 608 (A)
 Ex parte Williams 1937 CPD 391
 Ex parte James 1947 (2) SA 1125 (T)
 Ex parte Parker 1947 (2) SA 285 (C)
Age
The fact that the person would have reached on advanced age at the time the application is
made.
 Ex parte Rungasamy 1958 4 SA 688 (D)

Health
3 The fact that the person was in bad health at the time of his/her disappearance.
 In re Kirby (1899) 16 SC 245
 the fact that the person manifested suicidal inclinations.
 Ex parte Govender 1993 3 SA 721 (D)

Trade or occupation
Whether he followed an ordinary peaceful occupation or whether he was engaged in
business or trade to which ordinarily risk or danger was attached.

Person’s death is not lightly presumed.

Therefore the applicant must bring all the relevant facts and circumstances to the attention of
the court.

3 2 STATUTORY PRESUMPTIONS OF DEATH

In this instance the person’s death has resulted from unnatural causes, or the corpse is
destroyed or otherwise unavailable for inspection.
An inquest may be instituted in these circumstances ito Inquests Act 58 of 1959.
An Inquests refers to formal legal investigations into the circumstances of a death
undertaken by a judicial officer, usually a magistrate with the assistance of the police.

S5(2): stipulates that if a magistrate is of the opinion that the death was due to unnatural
causes, he must ensure that an inquest into the circumstances of the death is held by a
judicial officer in terms of s6.
S3(2): provides that where the corpse is available it must be examined by the district
surgeon to determine the course of death the course of death.

At the inquest:

(i) if the person’s body has not been found

(ii) is alleged to have been destroyed and the evidence proves beyond a reasonable
doubt that the person is dead, the judicial officer must record his findings w.r.t:

(a) deceased’s identity

(b) cause or likely cause of death
(c) date of death
(d) whether the death was caused by any act or omission which prima facie
involved or amounted to an offence by anyone
If the judicial officer is unable to record any such finding, the fact must be recorded.
Finding (a) – (d) must be submitted to the high court.
If the high court confirms the finding, the effect is the same as if it had made an order
presuming the person’s death.
State takes the initiative, therefore not necessary for a private person to approach the court
w.r.t. an order for the presumption of death.
Procedure laid down by the Act does not affect the court’s common-law jurisdiction to grant
on order presuming death.
The judicial officer must prove BEYOND A REASONABLE DOUBT that the person is dead
before he can record the finding that the person is presumably dead.
Advantages of the Inquests Act:

 State bears all the costs.

 Marriage is automatically dissolved.

3 2 2 Aviation Act 74 of 1962

Aircraft is involved in an accident the Minister of Transport may appoint a board of inquiry to
investigate the accident.
This procedure does not exclude the common-law procedure as interested parties may at
their own expense approach the court for an order presuming the death of a particular
person.
If an investigation board has not been appointed or if an investigating board does not find
that it has been proven beyond a reasonable doubt that someone is dead, interested parties
may at their own expense still approach the high court for an order presuming the death of a
person.
2. If in any particular case, a court is not prepared to grant a presumption of death
order, is there any alternative relief which may be granted? Discuss. (5)

3. Mr X disappeared without a trance while he was mountaineering in the

Drakensberg mountain range all by himself. A search party found only his hat
lying on the edge of a deep crevice. X’s wife consults you a year after his
disappearance. There is still no trace of him. She is experiencing financial
difficulties. She wishes to know what she can do about the situation.

Answer the following questions and motivate your answer where possible:

3 1 What kind of relief, which has developed in practice by the South African
Courts, may she apply for? (1)
Common Law.
3 2 Who may initiate the proceedings? (2)
The interested party, spouse.
3 3 What is the nature of the burden of proof resting on the applicant? (1)
The applicant must prove without reasonable doubt, with enough facts and probabilities that
the measing person is dead.
34 What factors will the court take into account when considering the
application? (5)
The courts will take into account the :
Age of a person presumed to be dead.
The state of their health when they went missing.
His/ her surroundings, if there are any factors that might have led to the disappearance e.g.,
weather conditions.
The time he/she has been missing (period they have been absent).
Occupation of the person, whether or not he was involved in risky kind of jobs.
 5. M Money, a rich businessman was kidnapped for ransom 10 years ago. Mrs
Money left the ransom money at the agreed money at the agreed place but it
was never collected. Despite an intensive investigation into the matter,
nothing was heard of Mr Money again. Mrs Money is now experiencing
considerable problems with the administration of her husband’s large estate.
Mrs Money also wishes to marry Mr City. She consults you about her
problems advise Mrs Money.

1. What avenue must be used, when dealing with a kidnaping case.

Statutory presumption of death, Inquest Act.
2. Who initiates the procedures?
The state takes the initiative, it can be the officers, and they execute this in terms of Inquest
Act 58 of 1959.
3. Standard of proof.
The state, judicial officer, must be certain, with sufficient probabilities that the person is no
longer alive.
4. Effect of Marriage

If an inquest was held in terms of the Inquests Act and the finding was confirmed by
the high court, the person’s marriage or civil union is automatically dissolved. The
surviving spouse does not need to make a separate application for the dissolution of
the marriage or civil union.
5. what happens to the persons estate.
5. What is the distinction between the common law and statutory presumption of
death orders?
Use the comparison table.

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.
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 h

as
taken place.
f 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: occurs where a minor lives apart from his parents and manages his own
undertaking