Law of Persons 144 - Case Law

ROAD ACCIDENT FUND v MTATI (2005)

Facts

  1. A pregnant woman was seriously injured when a motor vehicle collided with her
  2. The accident was caused by the negligence of the driver in question
  3. The child was born with brain injuries and a mental disability
  4. The father instituted a claim on behalf of the child against RAF

Pleas of appellant

  1. Unborn child is not a person (legal subject), not entitled to compensation
  2. Because the unborn child was not a person, the driver owed no duty of care towards her

Legal questions

  1. Does Z have a claim against RAF for damages resulting from the disabilities
  2. Should such an action be allowed by using the nasciturus fiction, or by using the ordinary principles of delict?

Judgement

  • SCA decided that it would intolerable if our law did not grant an action for prenatal injuries and that such an action should be based on the law of delict. The appeal was unsuccessful.

Ratio decidendi

  • The court held, that according to the ordinary principles of delict, unlawfulness and damage are separate elements for delictual liability and that the child's delictual rights of action becomes complete when he or she is born alive. The assertion that the driver of the vehicle did not own Z a legal duty because she had not yet been born, must be rejected
  • As a result of the judgment, all future claims for prenatal injuries will have to be based on the ordinary principles of delict and not the nasciturus fiction. Nasciturus fiction will still apply in other areas of law.

CHRISTIAN LAWYERS ASSOCIATION OF SOUTH AFRICA v MINISTER OF HEALTH (1998)

Facts

  1. The plaintiff sought an order declaring the Choice on Termination of Pregnancy Act (CToP) unconstitutional, striking it down in its entirety

Plaintiff's reasoning

  1. Life begins before conception, therefore ToP is a violation of S11 of the Constitution
  • "Everyone has the right to life"

Defendant's reasoning

  1. Foetus is not a bearer of rights ito S11 of the Constitution

Legal question

  1. Does the wording "everyone" or "every person" in the Constitution include an unborn child (as a legal subject), from the moment of conception?

Ratio decidendi

  • Judge held that the question is not one to be answered by medicine, but by proper interpretation of S11 of the Constitution
  • If drafters of Constitution had intended to protect the foetus, specific reference to the protection of the foetus would've been made in the BoR, Section 28.

Judgement

  • The court held that to afford legal personality to the foetus would impinge to a lesser or greater extent on the rights of human dignity, life, privacy, religion, belief, opinion and healthcare
  • The court thus concluded that the particulars of the claim fail to make out a cause of action and the exception must succeed.

EX PARTE PIETERS (1993)

Facts

  1. The applicant's father appeared in 1975 (18 years prior)
  2. The applicant's mother died and left a sum of money to the father
  3. The applicant applied for the court to either a) an order of presumption of death or b) an order compelling the Master of the HC to effect payment to him and his siblings
  4. There was no evidence to indicate that the applicant's father is possibly dead, except his age (73 years old)

Judgement

  • The court did not issue the presumption of death order, but authorised the Master of HC to distribute the money equally between the applicant and his siblings without the necessity of providing security
  • The argument is not strong enough to order a presumption of death order

Legal question

  1. Under what circumstances would the court order a presumption of death order?

Ratio decidendi

  • The court held that, taking all the information into account, the information was not enough to presume that the person in question is dead.
  • Re Beaglehole - no rule which require the court to presume death only on the lapse of years

EX PARTE STOTER (1996)

Facts

  1. Applicant applied for presumption of death for his brother who had disappeared two years prior (2 years)
  2. His vehicle had disappeared, no money had been withdrawn from his account during his period of absence
  3. The brother had been known to suffer from depression the week prior to his absence, and suffered in general from severe blood pressure
  4. Brother very dependent on friends and family
  5. No evidence could be brought forward to illustrate in what manner his death may have occured

Legal question

  1. Whether the particular circumstances in question would allow for presumption of death despite a very short amount of time having passed

Ratio decidendi

  • Joe had been actively employed before disappearance, only 60 years old (60 years)
  • Health was not in a frail state, apart from above mentioned problems
  • Age is not a contributing factor
  • Vehicle - drove himself, no evidence of abduction
  • Two years - very short time period in comparison to Ex Parte Pieters

Obiter dicta

  • Death was presumed in Ex Parte Engelbrecht after 35 years of absence

Judgement

  • Relief is denied and rule nisi is discharged

VAN DYK v SAR&H (1956)

  • Minor entered into a contract without the guardian's full knowledge of the terms
  • Father does not have to know all the specific terms because the father knew the nature of the contract
  • Thus informed consent, knows type of contract
  • Contract of Employment (standard contract)

FOUCHE v BATTENHAUSEN (1939)

  • Minor concludes a contract before his father was aware of the precise terms - but agreed afterwards
  • The payment then defaulted - Court stated that if guardian knows that a minor has obtained a car under hire purchase, that this is sufficient knowledge
  • Fraud barred from use of Restitutio in integram
  • Father was aware of essential terms - e.g. monthly installments (sufficient knowledge)
  • Appeal was dismissed

WOOD v DAVIES (1934)

Facts

  1. Plaintiff inherited money when he was minor
  2. The terms stated that the money would remain in a trust and that the plaintiff would be entitled to the interest on capital
  3. During minority plaintiff's guardian bought a house on plaintiff's behalf
  4. The payments were paid with the interest on capital
  5. When plaintiff became of age, large amount was still unpaid
  6. Plaintiff claimed cancellation of contract and repayments of amounts he had paid
  7. Plaintiff alleged that contract was prejudicial to him

Legal question

  1. Did the minor's legal guardian have the authority to enter the contract on the minor's behalf?
  2. Was the contract prejudicial towards the minor?
  3. Was minor entitled to restitution in integrum?

Ratio decidendi

  • Contract was prejudicial towards minor
    a) property was bought for more than it's worth
    b) imposed liabilities on plaintiff he attained when he became a major

Judgement

  • Plaintiff is entitled to restitution in integrum
  • Cancellation for cancelation of contract of sale and return of payments made on the minor's behalf, together with interest
  • Defendant entitled to be placed in status quo
  • Plaintiff must account defendant for use and occupation of property
  • Judgement in favour of plaintiff

KLVC v SDI (2015)(SCA)

Facts

  1. The appellant and the first respondent are the biological parents of a minor child
  2. Parties never married or lived together
  3. First respondent has been identified as the father at all material times
  4. While the first respondent was briefly in America, the appellant relocated to England without informing or consulting the first respondent
  5. First respondent applied to UK HC of Justice, family division ito Hague convention on the Civil Aspects of International Child Abduction for order directing appellant to return S to South Africa
  6. Basis that it was a breach of the first respondent's PRRs
  7. Appellant opposed application
  8. Stated that first respondent was not exercising "rights of custody", be exposed to psychological harm if returned to SA
  9. English court unable to decide, referred case back to SA
  10. Ruled in first respondent's favour
  11. Appellant appealed this judgement

Legal question

  1. Whether ito S21(1)(b) of Children's Act, the first respondent had acquired full PRRs in respect of the child as envisaged in S18(2)(c) prior to the removal

Ratio decidendi

  • The appellant relied on the decision in PRS v DAL that stated that all three requirements as stipulated in the Children's Act need to be met for an unmarried father to require full PRRs
  • She asserted that the FR had only met one of theses three requirements - consenting to being identified as the child's father (made no attempts to maintain in any way)
  • Court a quo found that all requirements had been met
    *"Contributes" and "reasonable period of time"
  • Important to not discriminate against unmarried fathers
  • Father showed that he was willing to be involved in child's upbringing
  • Mother refused Father be at doctor's appointments and birth, time together wasn't allowed
  • Father tried to spend time with child and introduce to family
  • Contributed R14 000 over 4 months

Judgement

  • Appellant should be made to pay the costs of the appeal, clear attempt to deny PRRs of first respondent
  • Appeal dismissed with costs

GRINDAL v GRINDAL (1997)

Facts

  1. Applicant (wife) sues respondent (husband) for a divorce by edictal citation
  2. App emigrated to Aus to live with husband, abandoning domicile of origin in South Africa
  3. Choice of domicile is now Aus
  4. Couple visits England, things don't work out and wife wants divorce
  5. Wife stays in England and takes up temporary job, but wants to return to SA

Legal question

  1. Whether domicile of origin can automatically be revived, which then gives South African jurisdiction this matter

Legal rule

  1. Court shall have jurisdiction in divorce if parties or either of parties is domiciled in area of jurisdiction of the Court on the date which the action is instituted

Application of legal rule

  • Domicile of choice requires to be lawfully and physically present
  • South African Court has no jurisdiction of the matter, because she is not domiciled in South Africa. Only when wife acquires domicile in SA again, can she renew the application and proceed with the case