LOP101 exam answers:

1. No, he did not approach the correct court.

2. He should have approached the High Court of South Africa (KwaZulu Natal,
Pietermaritzburg)
3. This court has jurisdiction.
4. It is where Mrs X was domiciled (in Pietermaritzburg) at the time of her disappearance.
5. Yes, it is necessary that Mr X must convince the court that Mrs X is dead.
6. The law states that the applicant must prove/ on a balance of probabilities /that the person
is dead.
7. This means that Mr X must provide proof of Mrs X death.
8. The circumstances in which the person disappeared.
The length of the missing persons absence.
The age of the missing person.
The health of the missing person.
9. The court does not declare a missing person dead.
The court order merely creates a/ rebuttable presumption/ that the person is dead.
10. Commercial surrogacy which is surrogacy for profit, /is prohibited.
The surrogate mother may not use surrogacy /as a source of income.
11. The surrogate may only enter into the agreement /for altruistic or selfless reasons /and not
for commercial purposes.
12. When the minor has no guardian.
When the guardian of the minor cannot be found.
When the guardian of the minor refuses to assist the minor.
When the interests of the minor are in conflict with those of the parent.
When the litigation is against the guardian.
13. Section 2(1) of the Domicile Act/ provides that a person who is incapable of/ acquiring a
domicile of choice/ in terms of section 1 of the Act,/ will be domiciled at the place which
he/she is most closely connected to.
14. Section 2(2) of the Domicile Act /contains the rebuttable presumption/ that if a child has
his/her home with one or both parents,/ it is presumed that this potential home is the
child’s domicile.
15. T is domiciled in Durban.
16. A nasciturus is a conceived but unborn child.
An unborn child that is deemed as /having been born/when it is to his/her advantage.
17. The relevant case is Pinchin V Santam Insurance Co Ltd/ 1963 (2) /SA 254 (W).
18. In this case, a woman was 6 months pregnant and was injured /due to the negligence of a
driver /that was insured by the insurer.
As a result of the accident, the woman lost amniotic fluid, / but the birth process was
normal.
19. When the baby reached the age of 4 months, /he was diagnosed with cerebral palsy as well
as brain damage.
According to the evidence of the medical expert, /the loss of amniotic fluid contributed to
/the shortage of oxygen to the nasciturus.
The pregnancy was perfectly healthy prior to the accident.
20. Whether the child had a claim for injuries/ that he incurred before the birth as a foetus
(nasciturus)?
21. The court held that the child could claim/ for injuries which he incurred as a foetus/ due to
the accident.
22. The court held that the fiction is not limited/ to the law of succession only.
23. In terms of Roman law, an unborn child if born alive, /is deemed to have all the rights of a
born child, /when it is to the child’s advantage.
24. There is no “valid” reason to limit the rule/ to the law of property /and to exclude it from
the law of delict.
25. However, there was no proof that the injuries to the unborn child/ were caused by the
negligence of the driver.
26. An insolvents legal capacity is influenced by/ the sequestration of his/her estate.
27. An insolvent is not allowed to hold certain offices such as:
Membership of the National Assembly.
Membership of the provincial legislature.
The holder of the liquor license.
Membership of a statutory council.
28. An insolvent may follow any profession or occupation/ or enter into any employment.
29. However, an insolvent is not allowed, without consent of his/her curator to:
Carry on or be employed in any capacity/ or have any interest in the business of /a general
dealer or manufacturer.
30. The residence relied on for the/ acquisition of domicile of choice must be lawful.
31. Illegal immigrants can therefore not acquire a domicile of choice in South Africa.
32. Even if they have the intention to settle permanently /because their intention is unlawful.
33. Persons who are deported from South Africa /also lose their domicile in this country.
34. Even if they have the intention to return because the return would be unlawful.
35. If prohibited immigrants are/ openly permitted to reside in a country, /they may acquire a
domicile of choice in that country.
36. In this case, V will not be able to acquire domicile in South Africa.
37. In terms of South African law /movable property is distributed /according to the law of the
place, /where the deceased was domiciled/ at the time of his or her death.
38. The immovable property is then distributed/ in terms of the law of the place, /where it is
situated.
39. Nicolene was domiciled in South Africa at the time of her death.
40. Her movable property is located in country B and South Africa (Stocks, shares, cash,
furniture and cars)
41. Her movable property will be split between her daughter and the surviving spouse.
42. In country A.
43. Due to Nicolene’s immovable property being in country A, which states the daughter will
inherit the whole estate.
All Nicolene’s immovable property will go to her daughter.
44. Yes, it is possible that some of his assets will fall outside of his insolvent estate.
45. Assets which fall outside of the insolvent estate are:
A portion of the insolvent’s earnings/ allowed by the Master,/ in order to support
themselves and their dependents.
Their pension money.
46. Compensation received for loss or damage/ that resulted from defamation or subsistence.
Their personal items /such as clothes, bedding, household furniture /and other essential
means of subsistence.
Certain life policies.
47. There is no duty on Z /to enquire into the truth /of K’s statement.
K will therefore be delictually liable to Z.
48. W has a good cause for/ believing that he is dealing with a minor.
The requirements for delictual liability/ are therefore not met.
And V will not be delictually liable.
49. The Children’s Act regulates access to contraceptives by children.
50. No person may refuse/ to sell or give free condoms /to children under the age of 12.
51. John was acting according to the law/ since he is 14 years old and over the age of 12.
52. The pharmacist did not act according to the law /by refusing to give or sell condoms to John.
53. Proper medical advice needs to be given to those children.
54. The child must be medically examined /to determine if there are any medical reasons why/
contraceptives other than condoms can be given.
55. Pam acted within the boundaries of the law/ since she is over the age of 12./
And may request contraceptives without her parents consent.
56. Her aunt Suzy acted according to the law /by examining Pam to get her the contraceptives.
57. Pam can ask for confidentiality /in terms of section 134(3)(1).
And her aunt must adhere thereto.
58. A child born from a married woman /with the gametes of her husband/ is deemed as having
been born from married parents.
59. A child born from a married woman/ impregnated with the gametes of a donor/ with
consent of her husband /is deemed as having been born from married parents.
60. A child born from single woman/ (no marriage or civil union) /with use of artificial
fertilization/ is deemed as having been born from unmarried parents.
61. The attorney does not know the law at all.
62. There are no difference in/ the succession rights of a child/ regardless of whether the
parents were married or not /at the time of his or her birth.
63. The Intestate Succession Act /81 of 1987.
64. Provides that if a child is born/ when his or her parents were not married/ this does not
affect the capability /to inherit intestate from a blood relation.
65. The Wills Act 7 /of 1953.
66. States that in the interpretation of a will, / a reference to children will include all children/,
including children born of unmarried parents.
67. An adoption order causes the termination/ of all parental responsibilities and rights/ and
obligations existing.
68. Between the child and any person /who was his or her parent, /and that parent’s relatives.
69. Immediately prior to such adoption.
70. An adopted child is deemed in law /to be the child of the adoptive parent /as if he or she
were born of that parent/ during the existence of a lawful marriage.
71. As the adoption confers on the adoptive parent/ full parental responsibilities and rights.
72. An order of adoption, unless otherwise provided, /confers the surname of the adoptive
parent/ on the adopted child.
73. Such an order of adoption does not permit /marriage or sexual intercourse / between the
child and another person /that would have been prohibited/ had the child not been
adopted.
74. The Children’s Act/ in section 130 – 133.
75. To establish whether/ a health worker may have contracted HIV /due to contact with the
child.
76. If any other person /may have contracted HIV due /to contact with child. /If it is in the best
interest of the child.
77. If the child is over or under 12 and mature enough/ to understand the reasons/ the child
may give consent. /If the child is under 12 and not mature enough/ the parents must give
consent.
78. Any caregiver can give consent /where there are no parents. In case of unreasonable
withhold of consent /the Children’s court can give consent.
79. Proper counselling is needed/ before the test is done. Post-test counselling is needed
/regarding the result.
80. The status can be disclosed /without consent in a few circumstances.
81. A court does not declare a missing person dead/ but presumed dead. The estate of the
presumed dead person/ is divided between the heirs.
82. The life policies of the missing person are paid out. The marriage of the missing person/ is
not automatically dissolved /and an application must be brought/ to dissolve the marriage
/where a spouse wants to remarry.
83. South African Citizenship Act 88 of 1995.
84. By a voluntarily and formal act/ to acquire citizenship from another country.
85. Also being a citizen of another country /and serves in the armed forces/ in a war against
South Africa.
86. Yes, Rambo will lose his citizenship.
87. The loss of citizenship can be avoided/ by applying to the Minister for an order of
/retention of citizenship, /which will allow the person to hold/ dual nationality.
88. Children below the age of seven are defined as infants.
89. Legal Capacity, Capacity to Act, Capacity to litigate and Capacity to be held accountable for
crimes and defects.
90. An infant has limited legal capacity.
91. An infant has no capacity to act whatsoever.
92. An infant cannot be a party to a lawsuit/ and must be represented by his or her guardian.
93. An infant is completely unaccountable/ and cannot incur criminal and delictual liability.
94. The Wills Act 7 of 1953.
95. The rebuttable presumption.
96. The presumption is that a testator/ not only wishes to benefit those/ members of a class or
persons (grandchildren) /at the time of his death, /but also those who have already been
/conceived at the time and are later born alive.
97. The presumption is rebuttable.
98. The presumption will not operate/ if a contrary intention is expressed/ by the testator in
his or her will.
99. At birth.
100. The meaning of the term birth.
101. A prodigal is a person with normal mental abilities, / who as a defect of character or
will, /squanders his or her assets/ in an irresponsible and reckless way.
102. Only when declared as prodigal by court not to manage own affairs.
103. Court will appoint a curator bonis /to administer the prodigal’s estate. /Any
interested party – and the prodigal self /- may apply to the High Court for such an order.
/Normally the spouse does.
104. Declaration must be assisted by order /not to manage own affairs. As a declaration
affect third parties, /the court order must be published in/ the Government Gazette and
local newspapers /as stipulated in the case of Delius vs Delius.
105.