MASELLINO ROBERTS

03HA2300982

LAW OF PERSONS FA 2

QUESTION 1

1.1 Domicile Applicable to Michelle

Before the commencement of the Domicile Act 3 of 1992, the domicile of a child
followed the domicile of their father. This is known as "paternal domicile." However, after
the commencement of the Domicile Act, the domicile of a child is determined by their
place of birth or the domicile of the parent with whom they primarily reside. This is
known as "domicile of dependency."

In the given scenario, Michelle is 12 years old and lives with her mother, Olivia, in South
Africa. Therefore, Michelle's domicile would be determined by Olivia's domicile, as she
is the parent with whom Michelle primarily resides. Michelle would acquire the domicile
of dependency, which is South Africa in this case.

1.2 Place of Domicile Acquired by Michelle

Based on the scenario, Michelle acquires the domicile of South Africa. This is because
Michelle resides in South Africa with her mother, Olivia, and attends school there. As per
the Domicile Act 3 of 1992, Michelle's domicile is determined by the domicile of the
parent with whom she primarily resides, which in this case is South Africa.

1.3 South African Court Jurisdiction in Divorce Action

In the scenario provided, if the marriage between John and Olivia were to dissolve, a
South African court would have jurisdiction in a divorce action under the following
circumstances:

If either John or Olivia is domiciled in South Africa at the time of the divorce action, the
South African court would have jurisdiction.

If Michelle, being a minor, is domiciled in South Africa at the time of the divorce action,
the South African court would have jurisdiction.
If the marriage was solemnized in South Africa, the South African court would have
jurisdiction regardless of the domicile of the parties involved

QUESTION 2

Intentional omission for flexibility: One interpretation is that the omission was intentional
and aimed at providing flexibility in determining domicile. According to this view, the
legislators may have intentionally left out specific provisions in order to allow for a more
adaptable and case-by-case approach to determining domicile. This interpretation
suggests that the omission was a deliberate choice to avoid rigid rules and allow for a
more nuanced assessment of an individual's domicile.

Unintentional oversight or drafting error: Another interpretation is that the omission was
an unintentional oversight or drafting error. This view suggests that the legislators may
have inadvertently omitted certain provisions that were intended to be included in the
Domicile Act. This interpretation highlights the possibility of human error during the
drafting process, where certain provisions were unintentionally left out or overlooked.

QUESTION 3

3.1 Guardianship of Isaac

To determine if Judy and Andrew have guardianship over their child, Isaac, we need to
consider the relevant authority. In this case, the relevant legislation is the Children's Act
of 2005 in South Africa.

According to Section 18(2) of the Children's Act, an unmarried father can acquire full
parental responsibilities and rights if he:

Consents to being identified as the child's father, and

Contributes to the child's upbringing, including financial support.

Therefore, if Andrew meets these requirements, he can acquire guardianship over
Isaac. However, it is important to note that the court may still need to confirm and
formalize his parental responsibilities and rights.

3.2 Unmarried Fathers and Customary Law

In terms of customary law, unmarried fathers do not automatically acquire parental

responsibilities and rights. Customary law recognizes the concept of "paternal power"
instead.

However, the Children's Act of 2005 has provisions that aim to protect the rights of
unmarried fathers, including those under customary law.

QUESTION 4

QUESTION 5

The case in which the Supreme Court of Appeal decided in an obiter dictum that the
court must consider in each case whether it is in a particular child's best interests to
know the truth about his or her father is the case of S v M (Centre for Child Law as
Amicus Curiae) (2012) ZASCA 2.

In this case, the court was dealing with a situation where a child was born out of
wedlock and the mother falsely named a man as the child's father. The man, who
believed he was the child's father, sought a declaration of paternity. The court held that
the best interests of the child should be the primary consideration in determining
whether to grant the declaration of paternity.
The court reasoned that the right of a child to know his or her true identity and origins is
a fundamental right protected by the Constitution. However, the court also recognized
that there may be circumstances where it is not in the best interests of the child to know
the truth about his or her father. For example, if the child has formed a strong bond with
the man believed to be the father, revealing the truth may cause emotional harm and
disrupt the child's sense of identity and stability.

The court emphasized that each case should be considered on its own merits, taking
into account the specific circumstances and the best interests of the child. The court
stated that the decision should be guided by expert evidence, such as the views of
psychologists or social workers, who can assess the potential impact on the child's well-
being.

In my opinion, I agree with the court's reasoning.

QUESTION 6

Thandeka may potentially escape liability in this contract based on the common law
principle of “unconscionability.” Unconscionability refers to a situation where one party
takes advantage of another party’s vulnerability or lack of understanding to create an
unfair contract.

In this case, the employees of Smell and Define noticed Thandeka’s young age and lack
of a guardian, and they doubled the price of the perfume. This action can be seen as
taking advantage of Thandeka’s vulnerability and lack of knowledge about the retail
price of the perfume.

To escape liability, Thandeka can argue that the contract is unconscionable due to the
employees’ unfair conduct. She can claim that she was coerced into agreeing to the
inflated price and that she did not fully understand the consequences of her actions.

QUESTION 7

a) Zibi accepts a donation of R 50 000 from her uncle with her mother’s assistance.

This contract is not valid. In order for a contract to be valid, there must be an exchange
of consideration between the parties involved.
Zibi buys a scooter from her cousin, Dheka, with her mother’s assistance.

This contract is not valid. According to the law, a person must have the legal capacity to
enter into a contract.

Zibi’s father buys a Quad bike on her behalf from Quad and Ride Company.

This contract is valid. In this case, Zibi’s father is acting as her legal representative and
making the purchase on her behalf.

QUESTION 8

curator personae takes care of the personal needs/well-being of the person under
curatorship.

True

A curator bonis assists the person in legal proceedings and/or assists a person in
bringing or defending legal action.

True

A curator ad litem takes care of the patrimonial interests of a person and/or is appointed
to administer the person’s property.

True

A curator bonis is appointed when a person in respect of whom a presumption of death

order has not been issued, has disappeared.

False. A curator bonis is appointed when a person is unable to manage their own affairs
due to mental incapacity.

Before an appointment of a curator ad litem, it need not be determined whether or not

such a person is able to understand the nature and consequences of the court
proceedings.

False. Before appointing a curator ad litem, it must be determined whether the person is
able to understand the nature and consequences of the court proceedings.
QUESTION 9

9.1 The most applicable form of termination of minority in the given scenario is
emancipation. Emancipation is a legal process that allows a minor to gain legal rights
and responsibilities similar to those of an adult before reaching the age of majority.

In Bradwin’s case, he wants to terminate his minority to engage more efficiently with all
aspects of his professional football career.

9.2 Age and maturity: The minor must demonstrate sufficient maturity and
understanding to handle adult responsibilities.

Financial independence: The minor should have the means to support themselves
financially without relying on their parents or guardians.

Consent of parents or guardians: In some jurisdictions, parental consent may be

required for emancipation.

Stability and support: The minor should have a stable living situation and support
network to ensure their well-being.

Educational and vocational plans: The minor should have a clear plan for their
education or vocational training to ensure their future success.

QUESTION 10

Sequestration: Sequestration is the legal process where Thabo’s estate is placed under
the control of a trustee appointed by the court. The trustee will manage and distribute
Thabo’s assets to creditors in a fair and orderly manner.

Automatic Stay: Once Thabo is declared insolvent, an automatic stay is imposed. This
means that creditors are prohibited from taking legal action or enforcing any claims
against Thabo or his assets without the permission of the court.

Creditors’ Meeting: A meeting of creditors will be held, where Thabo’s creditors can
submit their claims and vote on the proposed distribution of assets. Thabo will have an
opportunity to present his financial situation and propose a repayment plan.
Discharge of Debt: If Thabo’s creditors accept the proposed repayment plan, he may be
granted a discharge of debt. This means that he will be released from the legal
obligation to repay the remaining debts, subject to certain conditions.

10.2 Capacity to Litigate for an Insolvent Person

Even if Thabo is declared insolvent, there are certain situations where he may retain his
capacity to litigate. Examples include:

Defending Legal Actions: Thabo can still defend himself against legal actions brought
against him. Insolvency does not prevent him from participating in legal proceedings as
a defendant.

Bringing Counterclaims: Thabo can bring counterclaims against other parties involved in
legal disputes. Insolvency does not restrict his ability to assert his rights and seek
remedies through litigation.

Challenging Insolvency Proceedings: Thabo can challenge the validity or fairness of the
insolvency proceedings initiated against him. He can seek legal advice and present
arguments to protect his interests.

Seeking Legal Advice: Thabo can consult with legal professionals and seek advice on
legal matters. Insolvency does not restrict his right to access legal representation and
guidance.

10.3 Rehabilitation in Insolvency

If Thabo is declared insolvent, rehabilitation refers to the process of regaining solvency

and financial stability. It involves taking steps to improve one’s financial situation and
eventually being discharged from the legal obligations of the insolvency. Rehabilitation
may include:

Financial Restructuring: Thabo may need to restructure his finances, such as

negotiating with creditors for repayment plans or seeking additional funding to revive his
business.
Credit Rehabilitation: Thabo may need to rebuild his creditworthiness by making timely
payments, managing his finances responsibly, and demonstrating improved financial
stability.

Business Recovery: Thabo may need to implement strategies to recover his business,
such as diversifying his products, exploring new markets, or improving operational
efficiency.

Compliance with Legal Obligations: Thabo must comply with the requirements and
conditions set by the court and the trustee overseeing the insolvency proceedings.