Question
1;
Dr. Maradeth Grey (born White) and Dr. Derek
Grey were married in terms of the Civil Union Act 17 of 2006 on the 1st
day of April 2008. Derek, a South African citizen, employed as a neurologist at
the Oxford Hospital in England was introduced to Maradeth, an orthopaedic
surgeon employed by Alberlito Hospital, Ballito during a medical conference
held in England during March 2008. At the end of the conference Derek proposed
to Maradeth and travelled with her to South Africa where they got married at
Maradeth’s home located at Unit 1, Ocean View Street, Zimbali Lodge, Ballito.
Derek has, subsequent to their marriage, been appointed as the head of
neurology at Alberlito Hospital, Ballito. Both parties belong to the Alberlito
pension fund as administered by Alex Forbes Insurance located at Unit 1, Forbes
Building, Johannesburg.
Derek entered into an adulterous
relationship with Dr. Arizona Black, a trauma doctor employed at Alberlito
Hospital of which a minor child was born, namely Sloan Black, a male born 1
April 2010. Maradeth adopted Sloan Black, after his mother gave him up for
adoption. As it was a “closed” adoption, Maradeth only recently learned that
Derek was the biological father of Sloan Black. After Maradeth confronted Derek
about his adulterous relationship with Arizona, Derek stopped contributing
towards the communal (shared) expenses of the matrimonial home and threatened
Maradeth that she will never see “his child” (Sloan) again.
Maradeth consults with you in respect of
a divorce action. She is adamant that she wants her husband and Dr. Arizona
Black to pay for the embarrassment they have caused her. Maradeth furthermore
instructs you that she grew attached to Sloan and wants primary care-giving of
the minor child. In addition she wants Derek to pay maintenance in respect of
Sloan in the amount of R10 000-00 per month, as well as all educational
expenses. Maradeth is prepared to retain Sloan on her medical aid fund.
Based on the
aforesaid set of facts, answer the following questions and where applicable refer
to authority:
1.1 Draft the particulars of claim based on the
instructions given to you by Maradeth. Remember to cite all the Defendants. (Please
do not draft the summons
itself or the annexures to the summons). You
may add your own facts where necessary. (30)
1.2 On receipt of the divorce summons Derek
informs Maradeth that she is no longer entitled to take Sloan with her and that
she will only be entitled to have Sloan with her alternative weekends and
whilst in the presence of Arizona. A
cousin of Maradeth, whom is an avid 1st year law student, informed
Maradeth that she can either apply for a domestic violence interdict or apply
for a R43 application in providing her interim relief pending the divorce matter.
Differentiate between a R43 application and a Domestic Violence Application and
advise Maradeth on which remedy
would best address her circumstances. In answering the question students must
consider each application’s criteria, procedure, and the relief that can be
claimed as well as how such relief can be enforced. (20)
1.3 Maradeth has also been informed by her
cousin that she can either claim for child
maintenance in terms of a R43 application, or by bringing a maintenance
application in terms of the Maintenance 99 of 1998. Explain to Maradeth the procedure
in applying for a maintenance application, the criteria applied, as well as how
a maintenance order can be enforced by referring her to the specific sections of
the Maintenance Act. (20)
Question 2:
Mrs. Donna, a
British citizen, visited South Africa during her world tour. Whilst travelling
to Jozini, she
encountered a six year old boy by the name of Lucky Ndlovu. Mrs. Donna
was so taken
by this little boy, especially after learning that Lucky was an orphan. Lucky
was placed in
the foster care of his aunt, a single mother herself, Ms. Xaba, after his
parents passed
away in a horrific vehicle accident. Mrs. Donna wishes to adopt the little
boy. Lucky has
been staying with his aunt for two years and wishes to remain with his
aunt and
cousins.
2.1 Considering the ‘best interest principle’ as well as the child clause contained in
the Constitution of the Republic of South Africa,1996 do you believe that Lucky’s right to be heard in all matters concerning
him is adequately guarded and applied in South African courts. Substantiate
your answer with reference to legislation. (15)
2.2 Explain to Ms. Xaba the procedure involved
in Mrs. Donna’s proposed adoption with reference to the provisions of the
Children’s Act 38 of 2005. (15)
THE END
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