LUCIANO SCHOOL OF LAW &

SOCIAL SCIENCES EXAMPACK 2016

PVL2601

rumbidzai chikakayi
LSLSS
Table of Contents
JUNE 2013 ..................................................................................................................................................... 2
NOVEMBER 2013 .......................................................................................................................................... 7
June 2015 .................................................................................................................................................. 12
JUNE 2014 ................................................................................................................................................... 15
NOVEMBER 2014 ........................................................................................................................................ 21

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JUNE 2013
SECTION A

1. 2
2. 4
3. 2
4. 3
5. 1
6. 3
7. 3
8. 4
9. 4
10. 3
11. 1
12. 3
13. 2
14. 2
15. 3

SECTION B

1 a. Stuprum

It is an extramarital sexual intercourse with a third party before the marriage. It is one of the
grounds for setting aside a voidable civil marriage. Generally it does not affect the validity of a civil
marriage. The exception is where a woman is pregnant with another mans child at the time of the
wedding. If her husband was unaware of the pregnancy the pregnancy, the marriage is voidable and
he may request annulment of marriage.

1 b. importance

It is when a person is unable to have sexual intercourse. A civil marriage is voidable if one of the
spouses was unaware of the importance at the time of the wedding. The exceptions are where the
plaintiff was aware of the impotence, condoned it, or the importance is temporary or probably
curable

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 2. Reloomel v Ramsey

Fose v Minister of Safety and Security

Excel v Douglas

Wiese v Moolman

Bannatyne v Bannatyne

3. Remedy 1

The statutory right to adjustment upon the dissolution of the joint estate section 15 (9) (b) of the
matrimonial property Act governs the position if a spouse enter into a transaction with a third party
while he or she knows that his or her spouse will probably not consent to the transaction. If the joint
estate suffers a loss as a result of the transaction. An adjustment must be affected upon the division
of the joint estate in favor of the spouse whose consent was not obtained.

Remedy 2

Suspension of a spouses powers in respect of the joint estate. In terms of section 16 (2) of the
matrimonial Property Act, the High Court may suspend any powers a spouse has in respect of the
joint estate for a definite or indefinite period. The court will order such suspension only if the
prejudiced spouse applies for it and satisfies the court, the order is necessary for the protection of
his or her interests in the joint estate.

Remedy 3

Immediate division of the joint estate. If one spouses conduct seriously prejudices or will probably
seriously prejudices the other spouses interest in the joint estate, the prejudiced spouse may apply
to the court in terms of section 20 of the Matrimonial Property Act for the immediate division of the
joint estate. No other person must be prejudiced by the order. The court may order that the joint
estate be divided in equal shares or on such other basis as it deems just. The court may further
replace community of property with another matrimonial property system subject to such
conditions as it deems fit. In terms of an obiter dictum in Leeb v Leeb , the court will determine the
basis on which the joint estate Is to be divided by taking into account factors such as the duration of
the marriage, assets each spouse brought into the marriage , each spouse debts at the
commencement of the marriage , each spouses contribution to the joint estate during the marriage,

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 the prejudice one assets of the joint estate as a result of the other spouses conduct and ante nuptial
debts which were settled from the joint estate during the subsistence of the marriage.

4 a. The accrual in Mr Pakatis estate is calculated as follows

Net value on dissolution R100000

Minus net commencement value - 0

Minus assets excluded from the accrual

Donation from third party - R 30000

Accrual R 70000

Damages in the amount of R6000 for loss of income and R14000 for damages to motor vehicle not
excluded because they are damages for patrimonial loss. The accrual in Mrs Pakatis estate is
calculated as follows:

Net value on dissolution R90000

Minus net commencement value

As adapted by the CPI

( R 15000 x 2 ) R30000

Minus assets excluded from the accrual

Assets substituted for excluding assets R20000 –R 20000

Accrual R 40000

Mrs Pakati estate has the smaller accrual and she can claim half the difference between the bigger
and the smaller accruals.

Mrs Pakati accrual claim= 1\2 (R70000-R40000)

=1\2 (30000)

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 Mrs Pakati is therefore entitled to R15000

5 a. the prerequisites for granting a redistribution order are that the spouses must have been
married to each other prior to the commencement of the Matrimonial Property Act on 1 November
1984 with an ante nuptial contract which excludes community of community, community of profit
and loss and any accrual sharing or that the spouses must have been married Marriage and
Matrimonial Property Law Amendment Act on 2 December in terms of the Black Administration Act
38 of 1927. Mrs Khumalo clearly meets the second prerequisite above section 7 (4) of the Divorce
Act sets out two requirements for granting a redistribution order, namely that the spouse who seeks
the order must have contributed directly or indirectly to the maintenance or increase of the other
spouses estate during the subsistence of the marriage and that the court must be satisfied that
because of such contribution, it will be equitable and just to make a distribution order Mrs Khumalo
clearly meets the first requirement above

In Beaumont v Beaumont the parties were married in 1964 with an ante nuptial contract excluding
all community of property and profit and loss. During the subsistence of the marriage the wife, like
Mr Khumalo on our facts kept house for her husband, raised the children, fulfilling the duties of a
wife. Upon divorce the court in applying the one- third guidance, awarded the wife an amount of
R150000 of the husband’s estate.

In light of the prerequisites requirements and decision in Beaumont, Mrs Khumalo will succeed hin a
claim for a redistribution order against Mr Khumalo.

5 b. The spouses existing or prospective means

- The spouses respective earnings capacities

- The spouses financial needs and obligations
- Each spouses age
- The duration of the marriage
- The standard of living during the marriage
- Each spouses conduct in so far as it may be relevant to the breakdown of the marriage
- Any redistribution order in terms of section 7 (3) 0f the Divorce Act
- Any other factor in the courts opinion should be taken into account

6. Civil Union Act

b. yes

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 c. both parties must be at least 18years of age

- agree to enter into a civil union

-Solemnized and registered in accordance with the procedure

d. civil partnership

7. Recognition of customary Marriage Act

b. The customary marriage is valid. Failure to register a customary marriage does not affect the
validity of the marriage in terms of section 4 (9) of the Recognition of Customary Marriage Act

c. the marriage will be in community of property unless such consequences are specially excluded in
an ante nuptial contract in terms of the decision in Gumede v President of the Republic of South

d. yes i. section 10 (1) of the recognition of customary Marriage Act provides that a man and a
woman in a monogamous customary marriage may convert their marriage into a civil marriage

8 a. Because they are not recognized under any legislation

b. Ryland v Edros

Kahn v Kahn

Am v RM

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NOVEMBER 2013
SECTION A

1. 4
2. 2
3. 1
4. 4
5. 2
6. 2
7. 3
8. 4
9. 4
10. 2
11. 3
12. 3
13. 4
14. 3
15. 2

SECTION B

1 a. the parties must have capacity to act

- There must be agreement between the parties to enter into a civil marriage with each other
- The marriage between the parties must be lawful
- The prescribed formalities must be complied with

b. this question deals with one of the requirement for a civil marriage that is the prescribed
formalities must be complied with. Under this requirement the formalities during the marriage
ceremony and the registration of the civil marriage are of paramount significance. The matter in
question is associated with the formalities during the marriage ceremony.

Section 29 (2) of the Marriages Act 25 0f 1961 requires that the “ solemnization must take place in a
church or other building used for religious service or in public office or private dwelling house, with
open doors and in the presence of the parties themselves and at least two competent witness. The

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 intention of Sarah and Jack to celebrate their marriage on the beach will not comply with the
prescribed formalities requirement.

In Ex parte Dow an applicant wanted marriage declared null and void, because the marriage took
place in a garden. The court held that the marriage was valid because the object of section 29 (2) is
to avoid clandestine marriages and it was not intension of the legislature to invalidate those
marriages which were not concluded in a building of some sort. In light of the decision in Ex parte
Dow, Sarah and Jack may celebrate their marriage on the beach in Mauritius.

2. The three civil sanctions are

- Warrant of execution against the maintenance debtor property

- An order for the attachment of emoluments due to the maintenance debtor

- An order for the attachment of any present or future debt owing or accruing to the maintenance
debtor

The two criminal sanctions are:

- Guilty of an offence and liable on conviction to a fine

- Or imprisonment for a period not exceeding one year or to imprisonment without the option of
a fine

3. the accrual of Habibs estate his calculated as follows

Net value on dissolution R 200 000

Minus net commencement value - R 0

Minus assets excluded from the accrual - R 0

CcrruL R200 000

Damages in the amount of R30 000 for loss of income and R20 000 for damages to motor vehicle not
excluded because they are damages for patrimonial loss.-

The accrual of Hamitas estate is calculated as follows:

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 Net value on dissolution R250 000

Minus net commencement value

As adapted by the CPI

( R100 000 X 2 ) - R 200 000

Minus assets excluded from the accrual -R 0

Accrual R 50 000

Because Hamates estate shows the smaller accrual, she has a claim against Habitas estate

Hamitas accrual claim = ½ (R200 000 – R 50 000)

= ½ ( R 150 000)

Hamita is therefore outifiled to R75 000

4 a. the provision of the Maintance of Surviving Spouses Act apply since the Act applies only to
marriages which are dissolved by death and only here the dissolution of the marriage took place
after the commencement date of the Act. Mrs Sithole has la claim against the late Mr Sitholes estate
for the provision of her reasonable maintenance needs until her death remarriage in so far as she is
unable to provide for them from her own means or earnings. Mrs Sithole is unable to work and earn
income as a result of a disability and with that fact she is to her half share of the joint estate R 25
000 and the inheritance of R 5000 in terms of Mrs Sitholes will. Mrs Sitholes claim is limited to the
amount required to provide for her reasonable maintenance needs.

Mrs Sitholes claim takes the same order of precedence against Mr Sitholes hesitate claim for
maintenance of dependent child of Mr Sithole would have. If Takiwe is dependent on Mr Sitholes
estate for maintenance, his claim for maintenance and Mrs Sithole claim will take the same order of
procedure. Provided both claims shall if necessary be reduced proportionally.

b. the death of the child

- The child’s adoption

- When the child becomes self- supporting

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 - if the child enters into a marriage or civil union

5. a pension fund

In terms of the decision in Maharaj v Maharaj, pension interests are part of the assets of the parties
of a divorce proceedings for the purpose of the division of their assets. Section 1 of the Divorce Act
has to be applied to calculate the value of pension interest of a spouse who is ia member of a
pension fund. The pension benefits will be calculated by determining the benefit to which the
spouse would have been entitled had he terminated his membership of the pension fund on the
date of the divorce. The other spouse will be entitled to half share of the pension interest within
three or four months after the date of divorce, in cash or it may be transferred to an approved fund
of her choice

b. retirement aunuity fund

The total amount of the members contribution to the fund up to the date of divorce together with a
total amount of annual sample interest at the prescribed official rate. The non- member spouse is
entitled to claim the lesser of the fund return or simple interest on the pension fund interest.

Pension or provident preservation fund

It is the amount to which the member would become entitled in terms of the rules of the fund had
the members fund membership been terminated at the date of divorce. A non- member spouse is
entitled to the fund return on the /pension interest

6. a court approved contract

b. the recognition of customary marriage act does not stimulate the consequences of failure to
obtain a court approved contract. It is submitted that the absence of such a contract renders the
subsequent marriage void, for an interpretation which does not make the husbands capacity to
enter into a further customary marriage dependent on the courts approval of his proposed
matrimonial property contact would imply that the court approval is unnecessary ( and a waste of
time and money ) and would leave the interest of the existing customary wives and their family
groups is protected.

However in MN v MN/ Ngwenyama v Mayelane the SCA held that the absence of a contract in terms
of section 7 (6) does not affect the validity of the subsequent customary marriage

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 7. in terms of section 1 of the civil union act, a civil union is the monogamous , voluntary union of
two persons who are least 18years of age which Is solemnized and registered in accordance with
the procedure prescribed by the act. The term civil union includes a marriage and a civil partnership
concluded I terms of the act. Regardless of whether they call their civil union a marriage or civil
partnership the requirements for the consequences of the civil union are the same. Apart from the
fact that ha civil union may be concluded by parties of the same or opposite sex, the requirements
for and consequences of a civil union are in most respect identical to those of civil marriages

b. no . the same rules that apply to the dissolution of civil marriages apply to the dissolution of civil
unions.

8. Ryllnd v Edros

Am v Rm

Govender v Ragavayah

Du Plessis v Road Accident Fund

Gory v Kolver

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June 2015
SECTION A

1. 2
2. 3
3. 2
4. 4
5. 2
6. 4
7. 3
8. 2
9. 1
10.1
11.3
12.1
13.3
14.3
15.2

SECTION B

1. A putative marriage is void ab ignition. However it has some of the legal

consequences of a valid civil marriage for as long as at least one of the
parties is bona fide. The court cannot declare a putative marriage valid.
As Mr and Mrs Green were married without an ante nuptial contract and
Mrs Green was only the bona fide party . The marriage will be treated as
having been in community of property or rather as having been a universal
partnership. If this is to the advantage of the bona fide ( Mrs Green )

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 However in terms of the decision making in Zulu v Zulu, these rules do not
apply if the putative marriage was concluded while either of the parties was
a spouse in an existing valid civil marriage in community of property. In
such an event, the pre- existence of the valid civil marriage in community of
property makes the creation of the joint estate between the parties to the
putative marriage impossible as all of the assets.
2. The accrual in Mr Lerumos estate is calculated as follows :
Net value on dissolution R100 000
Minus net commencement value -R 0
Minus assets excluded from the accrual;
Donation R30 000 - R 30 000
Accrual R 70 000
The accrual in Mrs Lerumos estate is calculated as follows:
Net value on dissolution R90 000
Minus net commencement value as adapted by the CPI
(R 15 000 X 2 )
Minus assets excluded from the accrual
Assets substituted for excluded assets - R20 000
ACCRUAL R40 000
Because Mrs Lerumos estate shows the smaller accrual, she has a claim
against Mr Lerumos estate
Mr Lerumos accrual claim = ½ ( R 70 000- R40000)
= ½ (30 000 )
MRS Lerumo is therefore entitled to R 15 000
3. The irretrievable breakdown of the marriage as contemplated in section 4
of the Divorce Act 70 0f 1979.

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 b. no. a redistribution order is applicable to marriages out of community of
property without the accrual system concluded before 1 November 1984 or
before the coming into operation of the Marriage and Matrimonial Property
Law Amendment Act ( 2 December 1988) where spouses did not enter into an
agreement concerning the division of their assets.

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JUNE 2014
SECTION A
1. 2
2. 3
3. 3
4. 4
5. 1
6. 2
7. 1
8. 4
9. 2
10. 1
11. 4
12. 3
13. 2
14. 4
15. 3

SECTION B
1. (a) Putative marriage

(b) A putative marriage exists when one of the parties (or both of them) enter into a civil marriage
while unaware that there is a defect which renders the marriage void.

(c) A putative marriage has some legal consequences of a valid civil marriage as long as at least
one of the parties is bona fide. The court cannot declare such a marriage valid.

As Mr and Mrs Smith were married without an autenuptial contract fide party, the marriage will
be treated as having been in community of property or rather as having been a universal
partnership if this is to the advantage of the bona fide party (Mrs Smith).

However, in terms of the decision in Zulu v Zulu, these rules do not apply if the putative marriage
was concluded while either of the parties was a spouse in an existing, valid civil marriage in

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community of property. In such an event, the pre-existence of the valid civil marriage in
community of property makes the creation of the joint estate between the parties to the putative
marriage impossible, as all the assets of the party who is a spouse in the valid civil marriage fall
into the joint estate which exists between him and his spouse in the valid civil marriage. The only
claim which the applicant could have against the estate of the deceased is a claim for damages
and that is therefore all that Mrs Smith will be able to claim from Mr Smith’s deceased estate.

2. The in Mr Mahomed’s estate is calculated as follows:

Net value on dissolution R200 000

Minus net commencement value as adopted by the CPI (-R50 000x2)

Minus assets excluded from the accrual

Satisfaction R50 000 -R50 000

Accrual R250 000

Damages in the amount of R40 000 for the damages for the damages to motor vehicle are not
excluded because they are damages for patrimonial loss. The inheritance of R50 000 is also not
excluded due to the provision of their ANC which states that inheritance would form part of the
relevant spouses accrual.

The accrual in Mrs Mahomed’s estate is calculated as follows:

Net value on dissolution R150 000

Minus net commencement value as adopted by the CPI

(R30 000x2) -R60 000

Minus assets excluded from the accrual

Satisfaction R70 000 -R70 000

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Accrual R20 000

Compensation in the amount of R80 000 for loss of income is not included because it is a damage
for patrimonial loss. Because Mrs Mahomed’s estate shows the smaller accrual, she has a claim
against Mr Mahomed’s deceased estate.

Mrs Mahomed’s accrual claim = ½ ( R250 000-R2000)

= ½ (R230 000)

Mrs Mahomed is entitled R115 000

3 (a) 1. There must be sound reasons for the proposed change

2. Sufficient notice of the proposed change must be given to all the creditors of the
spouse.

3. No other person will be prejudiced by the proposed change.

(b) In Honey v Honey the court held that spouses cannot change their matrimonial property
system extra judicially. The court also held that the post nuptial contract was void and
unenforceable between the parties themselves as well as against third parties.

4 Bequmont v Beaumont

Kritzinger v Kritzinger

Koza v Koza

Childs v Childs

Watt vs Watt

5 (a) The grounds for divorce for a civil union are similar to those of a civil marriage. A civil union
is therefore dissolved in terms of section 4 of the Divorce Act on the following grounds

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-irretrievable breakdown of the union

- section 4 (I) lays down two requirements for irretrievable breakdown, namely

- the union relationship between spouses must no longer be normal.

- there must be no prospect of the restoration of a normal marriage relationship between

partners.

- the parties have not lived together as partners for a continuous period of at least one year
immediately prior to the date of the institution of divorce proceedings.

- the defendant has committed adultery and the plaintiff finds it irreconcilable with a continued
union relationship.

- a court has declared the defendant a habitual criminal and the defendant has been imprisoned
as a result of the sentence.

(b) 1. The spouse’s existing or prospective means

2. The spouse’s respective earning capacities

3. The spouse’s financial needs and obligations

4. Each spouse’s age

5. The duration of the marriage

6. The standard of living during the marriage

7. Each spouse’s conduct towards the breakdown

8. Any redistribution order in terms of section 7 (3) of the Divorce Act

9. Any other factor

6 (a) In terms of section 7 (6) of the Recognition of Customary Marriages Act a husband who is
already a partner in a customary marriage and wants to enter into another customary marriage

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must, prior to the celebration of the new marriage obtain the court’s approval of a written
contract which is to regulate the future matrimonial property system of his marriage. Such a
contract is called court-approved contract. If the existing customary marriage between John and
Mary is in community of property or subject to the accrual system, the court must terminate the
matrimonial property system and effect division of the property.

The court must make sure that the property is equitably distributed and consider all the relevant
circumstances of the family groups that would be affected if the application were granted. All
persons with sufficient interests in the matter be joined in the proceedings.

In MN v MN / Ngwenyama v Mayelane, the SCA held that the absence of a contract in terms of
section 7 (6) does not affect the validity of the subsequent customary marriage.

(b) It is submitted that failure on John’s part to obtain such a court-approved contract would
render his subsequent customary marriage to Sibongile void. Any different interpretation to
these stipulations in the Recognition of Customary Marriages Act would imply that court approval
is unnecessary and a mere waste of time and money. It would leave the interests in our case and
their family groups unprotected.

7 (a) The relationship has limited recognition in terms of South African law. The reason behind
the limited recognition is that it is not recognised as a marriage under The Marriages Act or Civil
Union Act or any other statute that specifically deals with various marriages. In Ryland v Edros
the contractual obligations flowing from de facto monogamous Muslim marriage can be
recognised and enforced between parties despite the fact that the marriage is potentially
polygamous.

(b) Yes. In Daniels v Campbell the court held that a surviving spouse in a monogamous Hindu and
Muslim marriages qualifies as spouse and survivor in terms of Intestate Succession Act and
Maintenance of Surviving Spouse Act.

In Ryland v Edros the court decided that contracts following from de facto monogamous Muslim
marriages can be recognised and enforced between the parties, despite the fact that the
marriage is potentially polygamous.

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(c) Yes. Mr Hassam was in a Muslim marriage with his child’s (Aisha) mother at the time of the
child’s conception. In terms of the Children Act, Mr Hassam acquires automatic parental
responsibilities and rights,

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NOVEMBER 2014
SECTION A
16. 3
17. 1
18. 3
19. 3
20. 4
21. 4
22. 4
23. 4
24. 1
25. 3
26. 4
27. 3
28. 2
29. 2
30. 3
SECTION B
1. (a) Error in negotiation is a form of material mistake recognised in a contract. Such a
mistake regard the nature of the contract concerned and renders a contract void. For
example an intend to enter into a marriage with B while B has the impression that they
are concluding an engagement contract.
(b) Sterility is when a person is able to have sexual intercourse but cannot procreate
children and is thus infertile. Sterility is one of the grounds for setting aside a voidable
civil marriage if one of the parties fraudulently concealed his or her sterility. The
prejudiced party may have the marriage annulled.
2. (a) Mr Filthyricli’s prior written consent attested by two competent witness
(b) Mr Filthyricli’s written consent, attested by two competent witnesses
(c) Mr Filthyricli’s written consent (without any further requirements).
3. The accrual in Mrs Wackhead’s estate is calculated as follows
Net value on dissolution R 250 000
Minus net commencement -R 0
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 Minus assets excluded from the accrual
Donations between spouses R 20 000
Satisfaction for pain and suffering R 30 000
R 50 000 – R 50 000
R 200 000
Accrual
Damages in the amount of R15 000 for the damages caused to motor vehicle are not
excluded because they are damages for patrimonial loss.
The accrual in Mr Wackhead’s estate is calculated as follows
Net value on dissolution R 450 000
Minus net commencement value
As adapted by the CPI
(R 100 000X2) -R 200 000
Minus assets excluded from the accrual:
Assets substituted for excluded assets R 20 000
Sculpture excluded assets R 14 000
R 160 000- R 160 000
Accrual R 90 000

Since Mr Wackhead’s estate shows the smaller accrual, he has a claim against Mrs
Wackhead’s estate.
Mr Wackhead’s accrual claim= ½ (R 200 000-R90 000)
= ½ (R 110 000)
Mr Wackhead is therefore entitled to R 55 000
4. Levy v Levy
Kroon v Kroon
Amar v Amar
Hodges v Coubrough
Maharaj v Maharaj

5. When the judicial discretion to redistribute was introduced into our law, some South
African courts adopted the guideline that one-third of the total value of the spouse’s
assets should be allocated to the spouse who owns fewer assets.

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 In Beaumont v Beaunont the Appellate Division rejected the one third rule and all starting
points. I held that the court should start with a clean slate and then fill in the void by
looking at all the relevant facts and working through all the relevant considerations and
finally exercising a discretion as to what would be just , completely unfettered by any
staring point.
In Childs v Childs the court held that equality should be the yardstick in redistribution
orders / the spouses assets should be divided equally unless there is a good reason for
not doing so.
In Kirkland v Kirkland the court made a 50;50 division o of the spouses combined assets
on the ground of the principle of equality, coupled with the spouses intention that all the
assets should belong to both of them together. The court did not view “the decision in
Bezuidenhout as a rejection of the principle of equality as such “ but merely a decision
based on the facts of the case.
In Joubert v Joubert one third / two thirds division was confirmed on appeal based on the
facts of the case that a division of more or

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