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ECS1601 Assignment 7 (COMPLETE ANSWERS) 2024 - DUE 29 October 2024
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ECS1601 Assignment 7 (COMPLETE ANSWERS) 2024 - DUE 29 October 2024
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ECS1601 Assignment 7 (COMPLETE ANSWERS) 2024 - DUE 29 October 2024
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QUESTION 11.1 In respect of a mentally ill person, a curator is employed by the family or legal
representative of the mentally ill person, if and when they deem it necessary.
• False, a curator is appointed by the High Court.1
1.2 The powers and duties of the curator are determined by the needs of the
mentally ill person in consultation with the medical healthcare specialist.
• False, the powers and duties of a curator are determined by the Administration of
Estates Act2, all special powers must be specified in the letter of curatorship
following their appointment.3
1.3 A curator may not institute divorce proceedings on behalf of the mentally ill
person.
• True, a curator may not institute divorce proceedings, parental rights and
responsibilities and cannot make a WILL on behalf of a mentally ill person. 4
1.4 The curator appointed to take responsibility of the mentally ill person’s property
and property interests is called a curator ad litem.
• False, a curator bonis is a appointed to take responsibility of property interests.5
1.5 The lucidum intervallum exception applies to curatorship.
• True, the exception applies to curatorship, when mentally ill people experience a
lucid interval, they have the capacity manage their own affairs and make their own
decisions without the assistance or supervision of a curator.6
QUESTION 3
3.1 Using an example, illustrate the meaning of lucid intervallum.
a) The court would need to look at, for example, my medical and psychological background
amongst other factors and evidence. To determine if I was having a lucid interval
(momentary reasonable state) at the time of entering into a marriage contract. The court
will decide if I had complete and full understanding of the marriage contract and the
consequences thereof.
b) Having previously being declared mentally unfit by a court, or a reception order is not
conclusive or decisive evidence of mental illness at the time of concluding the marriage
1 Barratt, A. Domingo, W. Mahler-Coetzee, J.D. Amien, W Denson, R. Olivier, M. Osman, F. Schoeman, H. and Singh, P.P.
Law of Persons and the Family 2nd ed. (2017) Pearson South Africa (Pty) Ltd: Cape Town p98.
2 Act 66 of 1965.
3 Barratt, A et al Law of Persons and the Family 2nd ed. (2017) p98.
4 Barratt, A et al Law of Persons and the Family 2nd ed. (2017) p99.
5 Ibid.
6 Ibid.
Rishi - ENFL6111 (2022) 1
, contract. There is a rebuttable presumption (Hahlo & Kahn) a non-certified person is
presumed to be sane and a certified person is insane until the contrary is proved.7
3.2 In your own words, summarise what is each group’s capacity to conclude a contract
The law sometimes treats people differently because of their sex. Boy and girls
require different types of permission if they want to get married. Briefly outline the
different types of permissions boy and girls who have reached puberty require
when wanting to get married.
a) Girls wanting to conclude a civil or customary marriage are exempt from the ministerial
consent requirements if they are older than 15 years, other minors require ministerial
permission if they are under 18 years of age.
b) Girls under 15 years and boys under 18 years of age require special permission to
conclude a civil or customary marriage contract, they require the written consent of their
parents and the Minister of Home Affairs.
c) If the minor is born out of wedlock then only the mother’s consent is required.
d) If the minor is in the care of a legal guardian then only the guardians written consent is
required.
e) If both parents are alive then both parents’ written consent is required, when a parents
written consent cannot be given, an application can be made to the commissioner of child
welfare for the required consent. If sole guardianship is not awarded to one parent then
only the written consent of the parent who has sole guardianship will be required.
f) Should the minor be refused consent from either parent or commissioner of child welfare
an application may be made to the Judge of the High Court. Consent will only be granted
if the Judge finds that sufficient evidence of marriage is in the best interests of the child
and the consent was unreasonably refused.8
g) Minors under the age of 18 years may not enter into a civil union.
3.3 On what grounds could the common law position in Q.3.2 above be criticised or
viewed as discriminatory?
The inconsistencies with the common law position, regarding the written consent for minors
can be challenged as discriminatory based on the minimum age requirements. 9 The minimum
age requirements differentiate between girls under the age of 15 years and other minors under
the age of 18 years. This can be said to challenge sections 9 and 10 of the Constitution of the
Republic of South Africa, 1996 (The Constitution) as it may be seen as an infringement of
dignity and unfair discrimination. The Constitution promotes equality and fairness across
genders and age.10
The differences in the minimum age requirements for the different types of marriages/union
may seem discriminatory when looking at section 4 of the Promotion of Equality and
Prevention of Unfair Discrimination Act11 (PEPUDA). Section 6 of PEPUDA states that neither
7 Barratt, A et al Law of Persons and the Family 2nd ed. (2017) p95-96.
8 Recognition of Customary Marriages Act 120 of 1998.
9 Barratt, A et al Law of Persons and the Family 2nd ed. (2017) p86.
10 Barratt, A et al Law of Persons and the Family 2nd ed. (2017) p168-170.
11 Act 4 of 2000.
Rishi - ENFL6111 (2022) 2
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