Exam (elaborations)
PVL2601 EXAM PACK 2023
- Institution
- University Of South Africa
PVL2601 EXAM PACK 2023
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PVL2601EXAM PACK
2023
QUESTIONS
AND
ANSWERS
,SECTION 1
Question one
Mr Masipa concluded a marriage with Mrs Masipa. At the time of entering into the marriage, Mr Masipa was
aware of the fact that he was sterile but he fraudulently concealed this fact.
a) What is the legal status of the marriage between Mr Masipa and Mrs Masipa? Refer to applicable case law in
your answer. (9)
b) What are the consequences of the marriage between Mr Masipa and Mrs
Masipa? (7)
[16]
SECTION 2
Question two
Mr and Mrs Bond are married in community of property. Mr Bond plans to perform the following juristic acts with
property which all form part of the joint estate: selling a beach house which the family no longer use; signing
surety for his (Mr Bond’s) brother who is starting a new business; purchasing a dairy farm in Kwazulu-Natal;
selling ten expensive paintings which they hold mainly as investments in order to fund the dairy farm; receiving
R50 000 from Unisa which is due to Mrs Bond as remuneration for services rendered and receiving a prize which
Mrs Bond has won in a national crossword competition.
a) Indicate which form of consent, if any, has to be obtained for each juristic
act by Mr Bond. (6)
b) Accept that Mr Bond’s conduct seriously prejudices the interests of Mrs
Bond in the joint estate and mention 3 (three) statutory remedies Mrs
Bond may use against Mr Bond in such an instance. (3)
[9]
Memoranda
SECTION 1
Question one (a) – see p 38-39 of your prescribed textbook
Sterility is one of the grounds which renders a marriage voidable (1).
A voidable marriage refers to a marriage where grounds exist, before or at the time of the marriage, on
which a court can be requested to set aside a marriage (1).
Sterility refers to infertility, that is the inability to procreate (have children) whilst still being able to have
sexual intercourse (1).
In Venter v Venter it was held that if one of the parties at the time of a civil marriage fraudulently
concealed the fact that he or she was sterile, the other party may have the marriage annulled (1).
, In Venter the wife knew that she was sterile but fraudulently concealed this fact from her husband. The
court nevertheless rejected the husband’s action to have the marriage annulled as he did not allege that
his wife had fraudulently concealed her sterility (1).
In Venter it was thus held that it is not the mere fact of sterility, but the fraudulent concealment thereof,
which forms the basis for the action (1).
In Van Niekerk v Van Niekerk, however, the court held that the mere fact of sterility renders the civil
marriage voidable, regardless of whether it was fraudulently concealed or not (1).
Prof Heaton, the author of the prescribed textbook, is of the opinion that the decision in Venter is
preferred to that in Van Niekerk and that it is not the mere fact of sterility but the fraudulent concealment
thereof which should found the action (1).
This approach is supported by the decision of the Constitutional Court in National Coalition for Gay and
Lesbian Equality v Minister of Home Affairs in which it was held that “procreative potential is not the
defining characteristic of conjugal relationships” (1). (9)
Question 1 (b) – see p 39 of your prescribed textbook
A voidable civil marriage remains in force and has all the normal legal consequences of a valid civil
marriage until it is set aside by a court order (1).
A decree of annulment is thus compulsory and not merely declaratory (1).
During its subsistence the marriage affects the parties’ status, ie they have equal capacity to manage
the joint estate if the marriage is in community of property (1).
The effect of a decree of annulment is retroactive, meaning that all the consequences of the marriage
are extinguished as from the date of solemnisation (1).
The legal status of the parties then returns to the same position as if the marriage never took place (1).
However, the interests of third parties are protected: the validity of transactions with third parties that
were concluded prior to the annulment of the marriage is not affected by the decree (1).
The interests of children are also protected: children who are born or conceived during the subsistence
of a voidable marriage which is annulled are deemed to be children born from a valid marriage which is
terminated by divorce (1). (7)
SECTION 2
Question 2 (a)- see p 75-77 of your prescribed textbook
Selling a beach house: Mrs Bond’s prior written consent, attested by two competent witnesses. (1)
Signing surety for his brother: Mrs Bond’s prior written consent, attested by two competent witnesses.
(1)
Purchasing a dairy farm: Mrs Bond’s written consent, attested by two competent witnesses. (1)
Selling ten paintings: Mrs Bond’s written consent (without any further requirements). (1)
Receiving R50 000 from Unisa as remuneration due to Mrs Bond: Mrs Bond’s oral or tacit consent. (1)
Receiving a prize Mrs Bond has won: Mrs Bond’s oral or tacit consent.
(1)
(6)
Question 2 (b)- see p 80-82 of your prescribed textbook
The statutory right to adjustment upon dissolution of the joint estate(1) in terms of s 15(9)(h) of the
Matrimonial Property Act(1).
Suspension on Mr Bond’s powers in respect of the joint estate(1) in terms of s 16(1) of the Matrimonial
Property Act(1).
, Immediate division of the joint estate(1) in terms of s 20 of the Matrimonial Property
Act(1) (6) (2014-03-31 14:23)
Section 3 / Study Units 7 to 13 of the Study Guide:
Dissolution of a Civil Marriage
Question 1 [5]
Mr and Mrs Fightingfit have concluded a civil marriage in 1975. Lately they have encountered difficulty in their
marriage and they now decided to live apart for a trial period in an attempt to resolve their marital problems. Mr
Fightingfit approaches you for legal advice on the possibility of extra-judicial separation while they “work on their
marriage”. Furnish Mr Fightingfit with a detailed answer in this regard.
Question 2 [9]
While Mr and Mrs Fightingfit were living apart, as explained in Question 1 above, Mr Fightingfit proved to be a
very aggressive person. He was convicted on eleven counts of assault with the intent to do grievous bodily harm
and as a result was eventually declared a habitual criminal and sentenced to 5 years’ imprisonment. Mrs
Fightingfit now approaches you with the news that she wants to divorce Mr Fightingfit because of this. Advise Mrs
Fightingfit on whether a ground for divorce has indeed been established on these facts.
Question 3 [20]
During your consultation with Mrs Fightingfit, as contemplated in Question 2 above, Mrs Fightingfit wants to know
from you whether a court has a discretion to refuse a decree of divorce in her case since she was only married in
a civil ceremony. Would your answer differ if Mrs Fightingfit’s marriage has
also been concluded in accordance with the prescripts of a particular religion? Fully explain the position to Mrs
Fightingfit, addressing any constitutional concerns she might have in this regard.
Question 4 [10]
Mrs Fightingfit is aggrieved and ashamed by Mr Fightingfit’s poor conduct and is of the opinion that this poor
conduct on Mr Fightingfit’s part should justify a forfeiture order against him. Explain to Mrs Fightingfit what a
forfeiture order entails, what role misconduct plays in the determination of the granting of such an order and refer
to applicable reported case law to substantiate your answer.
Question 5 [12]
Towards the end of your consultation with Mrs Fightingfit she conveys to you that she and Mr Fightingfit entered
into a duly executed and registered antenuptial contract prior to their marriage in 1975 which excluded
community of property and community of profit and loss. Today Mr Fightingfit’s estate is worth R4.5 million and
hers is only worth about R100 000. Feeling very sorry for herself, Mrs Fightingfit tells you that, during the
subsistence of the marriage, she maintained the household, raised the children singlehandedly and also assisted
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