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Assessment 1:
Question 1:
John,
a RSA soldier, met Mali, a Senegalese citizen, during a backpacker holiday in
Senegal. On John’s return to Iraq, Mali sent John an e-mail on the 1st
day of April 2011 informing him that she is pregnant. John replied to her mail
on the 10th day of April 2011 informing her that he will marry her
on condition that he is the biological father. On reading John’s mail on the 20th
day of April 2011, Mali accepted John’s proposal.
1.1 In lieu of the aforesaid
facts, was a valid engagement concluded between John and Mali, and if so on
what date was the engagement concluded?
Motivate your answer with reference to case law. (15)
1. Definition of engagement: (x2)
is a contract (is an agreement entered into with the intention to create
obligation) between a man and a women to marry each other on a specific or
determinable date
2. Requirements:
· Consensus: (x2)
Material mistake –void (cannot claim
damages for breach of promise as there is a no consensus),
Mistake eg mistaken identity –error in persona Nature
of the juristic act – error in negotio
misrepresentation/duress/undue
influence – voidable.
Misrepresentation - makes a false representation of a material fact. Test whether it seriously
jeopardise the possibility of achieving a happy and harmonious marriage. Eg impotency, mental illness, serious
handicap.
Schnaar v Jansen –man cancelled engagement after discovering that her
uncle murdered someone etc. court found not grounds. Thelemann v von Geyso – girlfriend believed
she was pregnant – she was not.
· Capacity to act (x2)
Both parties, minor (both parent consent), even emancipated minor, a
boy under 18 and a girl under 15 needs consent of parents and min of home
affairs.
If minor engage then major bind but not the minor.
If parents withdraws consent before marriages- terminated –no claim for
damages.
· Lawfulness (x2)
Both must be unmarried. If a party married then unjust party can sue
for contumelia (insult). If engagement
is contra bones mores eg Friedman v Harris (paid R800 to marry)
· Possibility to perform (x2)
Conclusion: (x2) Not related within prohibited degrees
of relationship. Not below age of puberty. The engagement took place on the date when the offer was accepted ( 20 th).
3x marks for relevant case law
1.2 In the event of Mali having a
miscarriage prior to the wedding date, would John be able to cancel the
engagement based on justa causa? (10)
Define
Justa Cuasa (x2)
Examples
of scenarios that would constitute justa causa (x2)
Explain
the test – “Seriously jeopradise the happiness of the couple”. (x2)
Conclude
that john cannot cancel the engagement based on justa causa. (x2)
Case
law (x2)
1.3 Should John and Mali get
married, and John later discovers premarital stuprum, is the marriage void, voidable or a putative marriage? (10)
Define
stuprum (x2)
Discuss
a void civil marriage is
a civil marriage that never comes into existence. (x2)
·
Therefore the position is as if a
marriage never took place.
·
Null and void – non-compliance with material
requirements of a civil marriage.
Consequences
·
If void ab initio (from outset) does not
affect status.
·
No consequences of the marriage takes
place, children are born extra-marital, etc.
·
Either party/3rd party may
raise point- does not need a court order although a declaratory order is
better. (No discretion).
·
Cannot ratify except in the case where
there is no consent by guardian etc, then the Minister of Home Affairs is
empowered to ratify in terms of (sec 26)
·
Also exception with putative marriages
in that some consequences attach to marriage even if void.
·
Bona fide party may claim delictual
action for satisfaction from other party.
Voidable (x2)
-
Grounds are present before/ at time
of wedding on which the court can set aside the marriage.
Consequences
·
Takes place, stay in force and have all
the legal consequences of a valid civil marriage until set aside by a
court order.
·
Court order is essential and not
declarative as in the case of a void marriage.
·
Therefore status is affected
during subsistence.
·
If set aside – it operates RETROACTIVELY (Meaning changes
as if marriage did not take place.
·
Some interest is however protected – 3rd
parties, children in terms of Sec 39 of the Children’s Act.
Putative(x2)
When
one party or both parties enter into a civil marriage while being unaware at that time that the marriage is void.
Consequences
·
Although putative marriage is void
ab initio it has some legal consequences for as long as a party/both bona fide.
·
As soon both are aware the marriage
stops being putative.
·
Can never declare a putative marriage valid, can purely declare that relationship is putative with result that as
from date to date of knowledge certain consequences.
·
Children –
born within marriage. When application
made to declare putative =then court also makes a declaratory order that
children are within marriage. (Bam v Bhabha) and court can make order
as to parental responsibilities and rights that is in the child’s best
interest.
Conclusion
(x2) = Voidable marriage.
1.4 Discuss the invariable
consequences of the marriage, in the event of John and Mali getting married in
England? (15)
Invariable consequences cannot be
varied or regulated. (x2)
Invariable consequences includes: (x13)
That parties status changes from unmarried to married;
That a consortium omnis vitae (umbrella term including rights, duties etc within
a marriage) exist;
Parties are entitled to spousal maintenance,
Parties are obliged to contribute towards household
necessities,
Parties are entitlement to a matrimonial home,
Parties have parental rights and responsibilities iro minor children,
Parties to a marriage may make donations between spouses,
Parties are entitled to a family name,
Husband is entitled to the headship of a family.
THE END
