Lopf5131 The

Melissa Theunissen ST10276052
LOPF5313- Take-Home Exam
Varsity College Newlands
4 July 2023
1.1) False, a child has passive legal capacity, and limited rights and duties under the law
therefore a child would qualify as a legal person.1
1.2) True, sex is the biological term to describe physical differences between males and
females.2
1.3) True. Ludwig has intent to stay in South Africa for an indefinite amount of time and is
lawfully present in South Africa as his tourist visa has not yet expired, therefore he has
a domicile of choice.3
1.4) False, a certificate of stillbirth shall be provided by a medical practitioner, in accordance

with section 18 of the Births and Deaths Registration Act.4
1.5) True. The person may be sober enough later to understand the nature of their act and
its consequences, but it cannot be ratified. 5
1.6) False, it is not legal to profit from organ transactions as per the National Health Act
prescribes.6
1.7) False, a new-born baby follows their domicile of closest connection. 7
1
Barrat A, Domingo W, Mahler-Coetzee JD, Amien W, Denson R,Olivier M, Osman F, Schoeman H and Singh
PP. (2017). Law of Persons and the Family. Second edition. Pearson 40-42
2
Barrat A (2017). Law of Persons and the Family. Second edition. Pearson 85
3
4
S18 of Act 51 of 1992
5
6
7
1.8) True. Any contract that the mentally ill person has entered, or claims is void and has
no legal effect.8
1.9) False, an infans is classified from birth to younger than seven.9
1.10) True. However, this occurs when the nasciturus is under reasonable assumption that
the foetus will be born alive, and the fiction is to the advantage to the new-born child.10
2.1) 3
2.2) 2
2.3) 1
2.4) 3
2.5) 2
2.6) 3
2.7) 4
2.8) 1
2.9) 5
2.10) 3
8
9
Barrat A (2017) Law of Persons and the Family. Second edition. Pearson 41
10
3.1) A person who has a physical disability may have a curator bonis appointed to them if they
are unable to manage their affairs due to their physical disability. 11 A curator bonis curates the
property, manages the matrimonial interests and financial affairs of the disabled person, and
enters contracts on behalf of the person with a physical disability.12 However, a curator bonis
may be appointed for a specific purpose such as the managing and entering contracts on
behalf of the disabled person.13 An administrator is extremely similar to a curator bonis
regarding functions and duties; however, an administrator is appointed by the Master of the
High Court,14 and a curator bonis is appointed by a Judge of the High Court. Persons with
physical disabilities are more likely to be appointed a curator bonis than an administrator. 15
A curator bonis may be appointed to persons to persons with physical disabilities and other
impairments but still have normal mental ability include those suffering from hearing, speech
or sight impediments, chronic disease or illness, epilepsy, old age, or mental weakness. 16
I believe George will have a curator bonis appointed, such as the matter of Ex parte de Villiers.
17
And the matter of Ex parte de Jager.18 In Ex parte de Villiers, a woman had normal mental
ability but could not manage her own affairs due to partial paralysis and a speech impediment
due to a stroke.19 She was granted the appointed of a curator bonis to assist with her affairs.20
George is of normal mental functioning but due to George’s medical condition, he cannot
perform daily functions such as driving and is daily medicated, consequently George cannot
manage his own affairs such as matrimonial interests. This is alike the matter of Ex parte de
Villiers and George will likely receive the same verdict that the de Villiers matter granted, a
curator bonis to assist with his affairs as George cannot do so due to his physical disability.
A curator bonis will be able to manage George’s property, matrimonial interests and financial
affairs.21 People who have had curators appointed due to physical disabilities and other
impairments have full capacity to act in anything that they are physically able to do.22
Therefore, they have the full capacity to marry, sell property and litigate unassisted. 23
11
Barrat A, (2017). Law of Persons and the Family. Second edition. Pearson 99
12
13
14
15
16
17
1943 WLD 56
18
1950 (4) SA 130 (C )
19
1943 WLD 56
20
1925 WLD 56
21
22
23
3.2) Due to the fact that George’s corpse was not found, there is no bodily medical evidence
to suggest the cause of his death. The court therefore must use mechanisms to provide a
finding of death and must rely on investigations of circumstantial evidence to determine
whether the person is truly deceased.24 Where no one has seen the corpse, the court uses
the ‘presumption of death’ mechanism.25 Therefore, their legal personality is ended.26 There
are two approaches regarding a presumption of death order, this is the common law procedure
and the statutory procedures, the statutory procedure (namely, the Inquests Act procedures). 27
The common law procedure is caused by the disappearance of the person, it is initiated by an
interested party such as a family member,28 the standard of proof is based on a balance of
probabilities, the marriage of the presumed person does not dissolve automatically but can be
separated under the Dissolution of Marriages upon Presumption of Death Act,29 and the
application is forwarded to the High Court, where the rule nisi is issued with the final order.30
Any interested party may make an application to the High Court, the interest may be based
on being dependent on the deceased or a creditor of the deceased to desires to claim their
due from the missing person’s estate.31 In this case, Zandelee may make the application as
she is the sole survivor of George as George is not married and does not have children.
Therefore, Zandelee can claim her due from George’s estate.
The statutory procedure under the Inquest Act is different that the common law procedure as
the death is suspected to be from unnatural causes and is associated with the disappearance
of a natural person,32 it is initiated by state actors such as the police, the standard of proof is
based beyond a reasonable doubt, it automatically dissolves a marriage, 33 and the police
investigate, the magistrate makes a finding, the High Court will then confirm the death and
make final order on presumption of death.34
24
25
26
27
28
29
Act 23 of 1979
30
31
32
33
34
I believe that the common law procedure is appropriate under the circumstances as George
disappeared due to running in a storm and there are no unnatural causes associated with his
death. Since, Zandelee is a South African citizen, residing in Knysna and George died in
Greece, she will have to initiate the application for presumption of death because the police
who investigated his death are Greek citizens. Furthermore, George’s death cannot be proved
beyond a reasonable doubt but rather on a balance of probabilities, as George went missing
while running in a storm, while having medical conditions such as epilepsy.
The party must make their application with the High Court and state their interest. 35 Zandelee
will do this by providing a notice of motion, and an affidavit, where she must state the
circumstances of George’s death.36 The preliminary order then takes place. Most likely, the
court will issue the rule nisi in the Government Gazette and the local newspaper in the
missing’s domcile.37 This is to assist with gathering evidence. On return day, if no evidence
regarding the deceased is alive, the court will be satisfied on a balance of probabilities and
will declare the final order of presumption of death.38
It is difficult to state whether George will be presumed deceased by the High Court as he went
missing in Greece and therefore it’s difficult to publish his disappearance in a local newspaper
and therefore get evidence in the form of testimonies and eye-witness accounts that George
is indeed dead. However, due to his underlying medical conditions such as epilepsy and the
fact that he was running in a public race during a storm where many people opted out of
running in, George will most likely be presumed dead as rescue teams could not locate him
after three days.
3.3) His domicile is Greece as George has intended to settle their indefinitely and he owns a
villa in Greece.
3.4) George’s domcile is Greece and has two homes, a house in South Africa and a villa in
Greece. Zandelee will mostly receive both immoveable properties as she is the sole survivor
and heir of George. Regarding the immoveable property in Greece, South African law states
that the property should be managed in terms of Greek law.
Greek succession law states that the estate (namely, the immovable property) must be
acquired by the heir of the deceased, this must be acquired directly upon the death of the
deceased and must occur without intervention regarding a representative or an
35
36
37
38
administrator.39 There are three types of succession in Greek law, voluntary, legal and
compulsory.40 The heirs must file an inheritance tax statement within six months, if Greece
domiciled or within twelve months, if they live abroad such as in Zandelee’s case. 41
3.5) Due to the fact the presumption of death is legal fiction, it is possible that someone who
is presumed deceased is not actually deceased (as there is no body).42 Consequently, any
presumption of death of death is rebuttable upon the production of new and better evidence, 43
such as the matter of Berge v Aiken.44 In George case, he is not deceased and therefore has
a legal personality.45 The interested party can make an application to have the presumption of
death to be made invalid.46 The patrimonial consequences on the order of the presumption of
death are reversed.47 In this case, Zandelee will have to give back the immovable property
that she claimed as George is not deceased.48 The condictio indebiti can be applied to those
who refuse to give back their undue enrichment.49
39
Law Firm Letatokaridou, Greek Inheritance Law (https://leptokaridou.com/en/greek-inheritance-
law/#:~:text=Types%20of%20inheritance%20under%20Greek%20inheritance%20law&text=Movable%20proper
ty%20is%20transferred%20to,ownership%20in%20the%20land%20register.) Accessed on [4 July 2023]
40
Law Firm Letatokaridou, Greek Inheritance Law (https://leptokaridou.com/en/greek-inheritance-
law/#:~:text=Types%20of%20inheritance%20under%20Greek%20inheritance%20law&text=Movable%20proper
ty%20is%20transferred%20to,ownership%20in%20the%20land%20register.) Accessed on [4 July 2023]
41
Tridakis, John. Inheritance Laws in Greece
(https://greeklawyers.com.au/general/greeks_inheritance.php#:~:text=The%20heirs%2C%20(in%20intestacy%
20or,the%20Greek%20will's%20probate%20date.) Accessed on [4 July 2023]
42
43
44
1964 (2) SA 396 (W)
45
46
47
48
49
4.1) a- necrophilia
b- indignity
c- described.
d- Criminal Law (Sexual Offences and Related Matters) Amendment Act
e- community
4.2) a- donation
b- harvesting
c- Traditional Health Practitioners
d- human or animal tissue
e- indigenous African
5) A prodigal is a person with normal mental functioning.50 However, they may squander their
assets due to reckless/impulsive behaviour which can be due to a defect in their character or
judgement.51 Due to their irresponsible manner, the prodigal may threaten to bring themselves
and their dependents to destitution (lacking the assets and means to look after oneself). 52
Usually, a prodigal is someone is struggles with an addiction to gambling or alcohol. 53
A declaration of Prodigality would help Rita as it would limit her capacity to deal with her estate,
her managing of financial affairs and her property, this is due to an interdict issued by the High
court.54 Due to the interdict and the consequent limitation on Rita’s capacity, she will not be
able to squander her assets such as her income and promote destitution regarding herself
and her dependents such as her children.55
A curator bonis will be appointed to Rita to manage her property and her patrimonial
interests.56 This will help Rita and her family, as it will prevent Rita from making unsavoury
decisions about her property, contracts, and estate. The interdict of Rita will be made public
in the Government Gazette and published in a local newspaper, this protects not only Rita
from entering into contracts,57 but also third parties, as it is a liability to claim a contract with a
prodigal.58 However, Rita will be able to enter into contracts unassisted, on the basis that it
improves her position, and it does not incur any obligations or duties such as donations. 59 Rita
will also be prohibited from certain careers such as participation in commerce and money
related activities, the director of a company, an executor of a deceased estate, or a trustee of
an insolvent estate.60
However, Rita does still have some capacity to act. Rita can exercise her parental rights and
responsibilities over her children such as providing consent for marriage and administering
her children’s estate.61 Rita still retains the capacity to act with regard to matters that are
unaffected by the interdict such as contacts of engagement, marriage, or a civil partnership. 62
50
51
52
53
54
55
56
57
58
59
Barrat A (2017). Law of Persons and the Family. Second edition. Pearson 106-107
60
61
62
The application for prodigality can be made by any party, including Rita and her family.63 If
Marco would like to create an application, he can if he fulfils all the requirements such as age
and reasonable reason for Rita to acquire prodigality. The prodigality for Rita will not end when
she removes her prodigal behaviour but only when the High Court rescinds the order of
prodigality, curatorship, and interdict of Rita. 64
63
64
References:
Legislation:
S18 of the Births and Deaths Registration Act 51 of 1992
Dissolution of Marriages upon Presumption of Death Act 23 of 1979
Cases:
Ex parte de Villiars 1943 WLD 56
EX parte de Jager 1950 (4) SA 130 (C )
Berge v Aiken 1964 (2) SA 396 (W)
Books:
Barrat A, Domingo W, Mahler-Coetzee JD, Amien W, Denson R,Olivier M, Osman F,

Schoeman H and Singh PP. (2017). Law of Persons and the Family. Second edition. Pearson
Online Articles:
Law Firm Letatokaridou, Greek Inheritance Law (https://leptokaridou.com/en/greek-

inheritancelaw/#:~:text=Types%20of%20inheritance%20under%20Greek%20inheritance%2
0law&text=Movable%20property%20is%20transferred%20to,ownership%20in%20the%20la
nd%20register.) Accessed on [4 July 2023]
Tridakis, John. Inheritance Laws in Greece

(https://greeklawyers.com.au/general/greeks_inheritance.php#:~:text=The%20heirs%2C%20
(in%20intestacy%20or,the%20Greek%20will's%20probate%20date.) Accessed on [4 July
2023]
Melissa
ST10276052
Theunissen
4 July 2023

Lopf5131 The

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Melissa Theunissen ST10276052

LOPF5313- Take-Home Exam

Varsity College Newlands

1.4) False, a certificate of stillbirth shall be provided by a medical practitioner, in accordance

1.7) False, a new-born baby follows their domicile of closest connection. 7

1.9) False, an infans is classified from birth to younger than seven.9

d- Criminal Law (Sexual Offences and Related Matters) Amendment Act

c- Traditional Health Practitioners

d- human or animal tissue

S18 of the Births and Deaths Registration Act 51 of 1992

Dissolution of Marriages upon Presumption of Death Act 23 of 1979

Ex parte de Villiars 1943 WLD 56

EX parte de Jager 1950 (4) SA 130 (C )

Berge v Aiken 1964 (2) SA 396 (W)

Barrat A, Domingo W, Mahler-Coetzee JD, Amien W, Denson R,Olivier M, Osman F,

Law Firm Letatokaridou, Greek Inheritance Law (https://leptokaridou.com/en/greek-

Tridakis, John. Inheritance Laws in Greece

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