PVL1501 Case Law Summaries PDF

PVL1501 CASES – TO REMEMBER / KNOW THOSE MARKED IN GREEN ARE NOT PRESCRIBED BUT MENTIONED Use this one where a baby is born with injuries due to ROAD ACCIDENT FUND V MTATI accident that happened to mom while pregnant (ordinary...

PVL1501 CASES – TO REMEMBER / KNOW THOSE MARKED IN GREEN ARE NOT PRESCRIBED BUT MENTIONED Use this one where a baby is born with injuries due to ROAD ACCIDENT FUND V MTATI accident that happened to mom while pregnant (ordinary law of delict applies) PINCHIN VS SANTAM This is the one that was used 10 years ago when INSURANCE CO nasciturus fiction was used to protect unborn child This is the one where the testator left his estate to his EX PARTE VS daughter’s children who were living not knowing she was BOEDEL pregnant at the time – Executor brought action that he STEENKAMP must have intended for the new baby so he could inherit too CHRISTIAN LAWYERS ASSOCIATION This is the one where the CLA of SA tried to get the Choice on OF SA V MINISTER OF Termination of Pregnancy Act struck down. HEALTH (1998) CHRISTIAN LAWYERS ASSOCIATION This is the one where the CLA of SA claimed that a woman under OF SA V 18 should not have an abortion without consent of parent / MINISTER OF guardian HEALTH (2004) This is the one where the child (unmarried parents) was living with grandparents (as MOM died after birth) for 3 ½ years – then with FS V JJ (2011) the dad his new wife for 1 year – Guardianship of grandparents set aside – dad awarded (remember the Natural fathers of children born out of wedlock act 96 of 1997 still applied then) This is the one where the court ordered DNA testing on Skin, EX PARTE EMMERSON blood and muscle samples on a dad who died in car accident ( IT IS MENTIONED SO WE MAY AS WELL KNOW IT) This is the one where blood tests were ORDERED as it was in the M V R best interest of the child This is the one where a married woman had an affair at work and fell pregnant from lover – her husband supported child for years till the real father felt bad and started paying – When the child was older and wanted real dad to contribute to studies he said NO and the mother took him to court to compel testing of her, child and the D V K father and her husband – Husband was excluded from being child’s father but real father refused tests on ground of Constitutional privacy – Conflict of constitutional rights of kid which is right to parental care etc- but they cannot be played against each other (rights) so BLOOD TESTS declined. Court refused to order blood tests on child to prove paternity as S V L the mother said no – can’t go against wishes of mother.  EXCEPTION PLURIUM CONCUBENTIUM – they had intercourse F V L he claimed that other people also had with her, so he contested it was his child – he lost his case (proving paternity case) The Court held that as UPPER GUARDIAN of all minors it could order Blood or DNA tests if dispute of paternity IF IT was in the YM VS LB best interest of the child – but in this case paternity was not a dispute from the very start so NOT ordered Him and her living together (unmarried) – she fell pregnant – she FRASER V puts unborn child up for adoption – he applied to have adoption CHILDRENS order set aside Court ruled that the repealed Child care act of that COURT time said only mother decides – was unconstitutional – Parliament was ordered to fix the act – Adoption was set aside PRIOR TO SECTION 40 of the Children’s Act This one is where a same sex life partner’s child is ruled as in the same position of child born to a married woman by artificial J V insemination. DIRECTOR GEN HOME Section 40 of the CHILDRENS ACT – re-enacted the law as it was AFFAIRS before J vs Director of Home Affairs so that A child born to same sex life partners NOT IN A CIVIL UNION as a result of artificial insemination, makes the child a child born to unmarried parents BLOOD TEST CASE -PATERNITY – the court ruled that the interest of the child is paramount and taking blood to prove O VS O paternity could deprive the child of maintenance and her loving relationship with her “thought to be father” - SO NO blood tests The court declined blood tests to prove paternity ass it may have SEEATAL V disproved paternity of the woman’s husband and caused child to PRAVITHA be from “unmarried parents” – this would deprive child of maitenance and not be in best interest of child This is the one where life in prison prisoner acquires a domicile of choice at the prison (be careful with, if it is Pollsmoor, he is NEFLER V domiciled at Pollsmoor prison, Cape Town – as per the NEFLER assignment) MORE DOMICILE AT THE END This is the one where the testator left money to beneficiary, but EX PARTE he vanished for 15 years – Executor applied for order BEAGLEHOLE PRESUMPTION of death – Court said no order for P O DEATH – no order at all for estate either – did not want to create precedent Father vanished 1975 in 1993 mother died and left money to EX PARTE missing father! Applicants want P O DEATH order so as to PIETERS distribute – court said NO P OF DEATH but can distribute without providing security. 2  MOTAN V This is the one that said only MATERNAL grandparents were JOOSUB liable for maintenance (where unmarried mother died) PETERSEN V This is the one which Declared MOTAN unconstitutional – was MAINTENANCE Unmarried son’s parents liable for his child’s maintenance of he OFFICER did not / could not pay? YES they were ruled liable to the same extent as Maternal grandparents This the one where the minor misrepresented his age and bought a bike then wanted his money back but instead the seller of the LOUW VS MJ & bike counter-sued for damages and missed payments as he had H TRUST (PTY) represented himself as a self-supporting, emancipated orphan. LTD Seller won (minor raised his minority as an excuse to ask for his money back) EDELSTEIN V This is the one where the minor concluded an ANTENUPTIAL EDELSTEIN contract without parental consent- Court ruled it VOID (1934 CASE) – minor Plaintiff inherited money – to stay in trust ad he was to live on interest – the capital was to go to his children from marriage when he died one day– his father bought WOOD V DAVIES a house and paid with the interest – he lived there with parents- when he became major, he called for cancellation of the sale as it would take most of his interest and he felt it was prejudicial to him – Claim granted Minor person wrote cheque to applicant for contract – stopped \ cheque – Applicant sued or payment – Minor claimed no LOCUS DICKENS V TANDIN IN IDUCIO to enter into contract as was a minor – DALEY Appellant claimed minor emancipated therefor liable- Court claimed absolution from the instance – Applicant successfully appealed this. Respondent sued minor applicant over course material – WATSON V Applicant said he was minor – Respondent claimed he was KOEN emancipated COURT found for respondent – MINOR appealed and was successful! Husband wanted marriage annulled on grounds of fact he was LANGE V S LANGE mentally ill at date of wedding - -he heard voices in his head and had dementia – granted (this is under 7.2 in text book) This is the one where the schoolboy was hit in the eye while another kid was getting a hiding and only after he was 18 he realized it was a crime and claimed – there was a prescription SHANGE V issue, and this was at the time that minor age was changed from MEC FOR 21 to 18 (in the middle of his claim) – prescription does not run EDUCATION KWAZULU against minors and the claim would have been delayed a year NATAL after he became a minor which WAS 21 but now 18… 3  SHIELDS V SHIELDS Cannot waive maintenance on behalf of unborn child Woman tried to sue doctor as he failed to point out something FRIEDMAN V GLICKSMAN wrong with her unborn. _ Action failed – he owed nothing to the child CHISHOLM V EAST RAND This is the Loss of support case – death of husband / father – PROPRIETARY MINES tried to sue for unborn child’s loss of maintenance CHRISTIAN LEAGUE OF CL tried to get curator ad litem appointed to look after the unborn SOUTHERN AFRICAN V child that the mother wanted to abort due to a rape – FAILED RALL NAVILLE V DOMICILE OF CHOICE – DIPLOMAT – where he chooses to NAVILLE live once his contract is over SMITH V SMITH DOMICILE OF CHOICE of prohibited immigrant VAN Prohibited immigrant – allowed as SA had openly allowed him to RENSBURG V BALLINGER reside here DOMICILE OF CHOICE– moved back and forth between Joburg COOK V COOK / Natal – then moved to Cape – Not domiciled in CT for Divorce DOMICILE OF CHOICE Jewish guy on contract in CT for work EILON V EILON for years – wants to settle here – he proved he is domiciled in the area of the court CT DOMICILE OF ORIGIN She lived in CT – met an Australian – who lived there- they More GRINDAL V GRINDAL married in CT – they moved to Australia – then moved to UK – DOMICILE where was she domiciled? NOT in CT any more but she could renew her application if she moved back. BAKER V BAKER Soldiers – domicile of choice where they are not stationed MC MILLAN V Soldier old ruling could not obtain domicilium in SA even if MC MILLAN wanted to settle here (not here by choice but by a foreign power) 4