Law of Persons LWPLA1-22 Past Paper PDF 2024

Law of Persons LWPLA1-22 Eduvos (Pty) Ltd (formerly Pearson Institute of Higher Education) is registered w ith the Department of Higher Education and Training as a private higher educati...

Law of Persons LWPLA1-22 Eduvos (Pty) Ltd (formerly Pearson Institute of Higher Education) is registered w ith the Department of Higher Education and Training as a private higher education institution under the Higher Education Act, 101, of 1997. Registration Certificate number: 2001/HE07/008  What will be covered in today’s lesson? Define and explain the concept of domicile – his/her home in terms of they eyes of the law. Apply to a set of facts the importance of domicile to determine which legal Week 5 system is applicable. Apply to a set of facts the importance of domicile for deciding questions of jurisdiction. Determine a person’s domicile as provided for in the Domicile Act 3 of 1992. Explain the renvoi doctrine and how the Domicile Act deals with this problem. Case Study Domicile Activity: where is your current domicile (does not have to be your legal domicile), each student to identify? Case study for class discussion: Joshua comes from Hermanus and he has moved to Cape Town for his studies. His post and most of his belongings are still In Hermanus. He goes home every chance he gets, especially on long weekends and during the holidays. Where is his permanent home? Source: G Effendi  The place where a person lives = the non-legal meaning. THIS IS THE LEGAL MEANING: The place where… A person Defined as the place a person: Is legally deemed to be constantly present/ resides For the purpose: exercising rights / fulfilling duties, Even if factually absent. i.e. permanent home/residence. “residence” or to acquire domicile in legal sense person must have intention of settling at place for an indefinite period.  When OR Why is it important to know where a person is domiciled? 2 REASONS: To determine… 1. Which country's laws apply 2. Which court has jurisdiction over a matter The LAW of the country STATUS in SA is determined by… where … A person is DOMICILED NOT A citizen SA LAW uses Lex loci domicilii (where the person is domiciled). Domicile is concerned with private law.  CAPACITIES DETERMINES… STATUS 1. Legal capacity: “Stare” = “to stand” Ability to HAVE rights / duties. All people have them BUT limited E.g.: Kids, mentally ill. Standing in the law. 2. Capacity to ACT: Perform valid juristic acts Attributes / factors influencing: = Law attaches consequences. Domicile; Requires: Level of intellectual Birth outside marriage; development. 3. Capacity to litigate: Youth Physical / mental illness Appear in court as party to lawsuit Intoxication; 4. Capacity to be held accountable: Prodigality; Crimes / delicts – influences by factors. Insolvency; Ability to be at fault (intent / negligence)  Problem-Based Learning Fields of law where domicile plays a role. Get intro groups of 4. You have 10 Which country’s law minutes and answer the following: should apply? 1. What is a “Choice of law” problem”? 2. Identify another name for “Choice of law”. 3. Identify another name for “Choice of law”. Draw a quick mind-map setting out all the scenarios where domicile can be used to assist with “choice of law” problems. 4. Give an example.  Personal Status Jurisdiction Is a person a minor or a major? E.g.18 year old in SA = major but perhaps a minor Court where defendant is elsewhere. Age of 21? domiciled has jurisdiction This then impacts: Capacity to marry or to Also specific to certain applications contract etc. e.g. presumption of death. Fields of Private Magistrates Court, Regional Court, law where High Court, SCA, CC. Matrimonial domicile e.g.: Maintenance = court nearest property system (determines)/ is to where the minor resides. If no ante-nuptial contract, then the couple’s NB to resolve matrimonial domicile applies. conflicts of laws Determined by husband’s domicile at time of marriage (wedding). Gender specificlaw. BUT: What about same sex partners?? ‘See example on p. 119 of textbook – ‘spouses’ Succession See case law. Deceased’s domicile on the day of his In the past: At common law a wife automatically acquired husband’s domicile at marriage death determines… & followed it whenever he changed it, irrespective of whether she was present Law of intestate succession; at that particular place / had intention of residing there permanently = domicile Capacity to make a will; of dependence. Capacity to inherit; Children also had domicile of dependence – domicile of guardian (in old days was the father) Rules of interpretation used; Case Study Case study for class discussion: Niyaaz was born in London to South African parents. He lived there until 18. He wants to marry Atli. Atli is from Durban. They met while studying BCom at Eduvos in Cape Town during 2020. They graduated in 2022, he returned home immediately to the UK as he got a job at PWC, the London office. They intend to marry on 5 June 2023 in Stellenbosch and both will return the UK. They do not intend to register an ANC. They approach you for legal advice. Explain what is domicile, identify their domicile, whose domicile determines the laws applicable to their marriage, and would the situation be different if they had an ANC? Note: The default marital system in London is out of COP and in SA, the default system is in COP. Source: G Effendi Where is a persons domicile? The Domicile Act 3 of 1992 – 2 types: *Not retrospective, common law rules may apply before 1992 and to domicile by origin (CL rule). 1. Domicile of choice 2. Domicile by closest connection (by operation of law) Section 1 (1) of the Domicile Act Capacity to ACT, Section 2 of the Domicile Act Choose domicile for him / herself. Does NOT have the CAPACITY to acquire a domicile of CHOICE Domicile of Choice… Section 1(1) Domicile Act: Section 1(2) Domicile Act req’s to All majors (18+ years / married) establish domicile of choice: WHO HAS Lawfully present (FACTUM/factual) in Mental capacity to make rational a place WITH choices (is of sound mind). Intention (ANIMUS) to settle there indefinitely. i.e. remain. Regardless of gender or marital 2 Issues to consider: Domicile status! 1. Is the person competent to establish a of choice See footnote 26 for position pre- domicile of choice? 2. Has the person in fact established a 1992. domicile of choice? What if FACTUM requirement: ANIMUS requirement: someone Physically present is Intention to settle for indefinite period. does not have always a requirement. Should not contemplate ending free will to Lawfully present – not residence. decide? illegal immigrants. Johnson v Johnson; Eilon v Eilon (Need Does not apply to criminals not remain permanently, just on the run ☺! indefinitely) TEST: Objective TEST: Subjective Activity 1 1. Go to Chapter 7, paragraph 4.2.4 of your textbook. 2. List the categories of people who are not free to choose their domicile. 3. Where will their domicile be? Can they establish a domicile in the place they are stationed / imprisoned? You have 10 minutes in groups of 4.  Military staff? Diplomats? Prisoners? Based on: Based on: Not at prison because Baker v Baker Naville v Naville of lack of free will. where both even if they are in BUT Are stationed or SA on behalf of a Based on: another place. foreign country. Nefler v Nefler YES automatically @ Prison if life imprisonment.  DOMICILE OF CLOSEST CONNECTION i.e. what if you cannot choose your domicile? Section 2 Domicile Act *common law domicile of dependance Mentally incapacitated: Minors: Domicile by closest connection (by operation of law) i.e. Place most closely connected to NOT based on a place… Rebuttable presumption: place Curator’s domicile. most closely connected to ASSUMED to be parental home. UNLESS Rebutted - Sec 2(2) of Domicile Act. Does NOT have the CAPACITY to acquire a domicile of CHOICE E.g. arguing that child lives with Determined OBJECTIVELY – look at the person’s circumstances, usually grandmother or boarding school. where person lives or regards as home. DOMICILE OF ORIGIN Domicile of origin is a person’s FIRST DOMICILE – section 2 Domicile Act. Acquired at birth. In terms of common law a baby’s first domicile would have been the domicile of origin i.e. the domicile of the guardian. The law has changed – note: it is the domicile of closest connection. Domicile of origin not so relevant anymore - section 3(2) Domicile Act. See par. 6.pg 126 GENERAL PRINCIPLES: 1. You MUST have a domicile – always! 2. No-one loses their OLD domicile before acquiring a new one. - Section 5 Domicile Act: acquisition or loss of domicile shall be determined by a court on a balance of probabilities. - Look at the circumstances and assess the most probable. See pg 126 cases - New one must be proven on a balance of probabilities. 3. You can only have ONE domicile AT A TIME. - Despite common law – modern authors agree on this. - Look at the example on pg 127-128. - Self study: excluding renvoi pg 128-130  Victor was born in Cape Town twenty years ago. Soon after his birth he and his parents moved to Johannesburg, where his father works as a lawyer. When he turned 18 Victor Activity 2: How moved to England and is currently living and studying at a University in London. After his studies, he plans to stay in do we prove London permanently and find work at a bank in the city centre. domicile? Identify and discuss the kind of domicile Victor currently has and indicate where it currently is. (Use the IRAC method to answer this question). [10 marks] You have 10 minutes to work in your groups.  Issue: What kind of domicile does Victor currently have and where is it? (1) Recite Law: According to the Domicile Act (3 of 1992) a major (1) who has the mental capacity to make a rational choices (of sound mind) (1) can establish a domicile of choice (1). A domicile of choice will be established if the following two requirements are met: ONE: The factum requirement / the person must physically (1) and lawfully (1) settle in the place they want to acquire as domicile of choice. Answer: Apply To determine this, the situation is viewed objectively (1). TWO: The animus requirement / the person must have the IRAC Method: intention( 1) of settling for an “indefinite period” (not necessary permanent) (1). To establish whether this requirement has been met, a subjective test is applied (1). Application: Victor is a major and capable of making rational choices (1). He is physically present in London (1) and plans to stay there indefinitely (1). Conclusion: Victor has a domicile of choice in London (1). [10 marks] Activity 3: Simon is born in Lusikisiki in the Eastern Cape, and he lives with his parents, Lindiwe and Andrew. Simon attends school at Lusikisiki High where he completes his matric. When he matriculates, he decides to study engineering at UJ (The University of Johannesburg). He stays in a flat with two other guys, and goes home from time to time to visit his parents. Back home he loves chilling in his room and catching up with friends from school. Simon has no idea where he would like to live one day when he gets his degree. Whilst at UJ, Simon meets Mary, and decides to ask her to marry him. Simon and Mary get married on a massive sand dune outside Walvisbaai in Namibia. Later that year they decide to settle in Durban, where they buy flat. Simon is such a successful engineer and soon gets an offer from an Indian Engineering firm. The couple promptly move to India. They tell their families that don’t plan to live in South Africa anymore, but that they will let them know as soon as they come to a decision on where they would like to settle. After a year in India, Mary tells Simon that she is going back to live in South Africa. She says she is sick and tired of doing yoga and that she misses South Africa, the food and her family. Simon is shocked, as he just bought them a house in Mumbai (India) where they could settle permanently. He believes that India holds many future opportunities for them. Mary tells him that she will be divorcing him as soon as she gets back to South Africa.  Activity 3 continued: With reference to the set of facts, answer the following questions: Discuss Simon’s domicile whilst he is at school by stating the type of domicile and the legal principles applicable to such domicile. Discuss Simon’s domicile whilst he is at university by stating the type of domicile and the legal principles applicable to such domicile. Simon and Mary got married in Namibia. Indicate which country’s matrimonial property regime will govern their marriage, and give a reason for your answer. Where is Mary domiciled after she marries Simon? Give a reason for your answer discussing the position after the enactment of the Domicile Act 3 of 1992. Where are Simon and Mary domiciled for the year that they live together in India? Give a reason for your answer. [15 marks] You have 10 minutes to work in your groups. Answers: Question a: Simon, while still at school, is domiciled in Lusikisiki, as Sec 2(2) of the Domicile Act creates a rebuttable presumption that children are most closely connected with the parental home if they live with their parents most of the time. This even applies if children (person under 18) are at school or university. There is a rebuttable presumption that the parental home is the child’s domicile, but it can be rebutted for example if the child doesn’t live at home, lives far away or with grandparents. The applicable type of domicile is a domicile of closest connection. Answers: Question b: Simon, while at UJ, is now a major (older than 18 we can assume) and thus has the mental capacity to elect a domicile of choice. In order to acquire a domicile of choice the two requirements must be met as per the Domicile Act namely that the person must be lawfully & physically present (factum) at a particular place and has the intention to remain there indefinitely (animus manendi). Lawful presence is objectively assessed and is established by facts, normally by looking at where the person is physically and lawfully present. A person must be physically present with an intention to settle indefinitely (not permanently). The animus requirement is established by looking at the intention of the person concerned. As Simon is not sure where he wishes to be domiciled in future he will retain Lusikisiki as his domicile until such time as a new domicile has been chosen. Answers: Question c: Simon and Mary’s matrimonial property system is governed by the laws of South Africa. Despite the fact that they got married in Namibia, the marital regime is governed by the country in which the husband is domiciled. Question d: Mary acquires a domicile of choice in the country or area in which she intends to permanently reside, and is physically present. Durban – where she resided and bought property (resided). In terms of the Domicile Act, a married woman no longer follows her husband’s domicile. Question e: Simon and Mary are domiciled in Durban. When a person who is over the age of 18 and capable of acquiring a domicile of choice abandons their domicile, they do not lose their domicile until they have elected a new one. Although they lived in India for a year, they had not yet decided where to settle at the time. Quiz 1 Choose the correct option 1.What does the term 'lex domicilii' refer to in the South African Law of Persons? a. The law that determines a person's ability to vote. b. The law that regulates the taxation of a person. c. The law of the place where a person is domiciled that determines their status. d. The law that allows a person to get a driving license. Quiz 1 Choose the correct option 2.Which of the following does the Domicile Act 3 of 1992 in South Africa NOT provide rules about? a.Domicile of choice b.Domicile of closest connection c.Domicile of origin d.Domicile of jurisdiction Quiz 1 Choose the correct option 3.In the context of the Domicile Act 3 of 1992, what requirements must be met for a person to establish a domicile of choice? a.The person must be over the age of 50 and own property in the place of domicile. b.The person must be of or over the age of 18 years and have lived there for at least 5 years. c.The person must be of or over the age of 18 years and have the intention to remain there indefinitely. d.The person must be married and have children living in the place of domicile. Quiz 1 Choose the correct option 4.Under the Domicile Act, where is a minor or a mentally incapacitated person domiciled? a.The place of birth b.The place where the guardians reside. c.The place of education d.The place of closest connection, assigned by operation of law. Quiz 1 Choose the correct option 5.According to South African law, which of the following statements about domicile is NOT correct? a. A person can have a domicile in more than one place simultaneously. b. Every person must have a domicile at all times. c. Changing a person's domicile is never accepted without proof. d. A person's private-law status is determined by the law of the place where they are domiciled. DISCUSS According to the Domicile Act 3 of 1992, what are the requirements for establishing a domicile of choice? REQUIREMENTS FOR DOMICILE: ANSWER To establish a domicile of choice under the Domicile Act 3 of 1992, a person must be lawfully present in the place and intend to remain there indefinitely. Furthermore, they must be of or over the age of 18 years or have the status of a major by law. Quiz 2 True or False? 1.Odwa, a citizen of Malawi, is an illegal immigrant in South Africa. She has lived and worked in Hillbrow for the past two years, is she domiciled in JHB? 2. Lex loci domicilii refers to your nationality. 3. Choice of law is the same as a conflict of law in respect of domicile. 4. A South African 19-year-old would be unable to contract in America? 5. Matrimonial Domicile can be applied to same sex couples? 6. Domicile follows the wife always. 7. A prisoner's domicile is based on where they were born regardless if they are imprisoned in a different country. 8. Your domicile of origin is still applicable in the Domicile Act? Quiz 2 1. F 2. F 3. T 4. F 5. F 6. F 7. F 8. F What Happens Next? STUDY WEEK 6’S WORK AND COMPLETE THE PRACTICE QUESTIONS ON MYLMS: THE END OF LEGAL PERSONALITY ONLINE TEST DUE IN WEEK 6 DO NOT WORRY. YOU GOT THIS!!