2013 Supplementary exam paper

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 1^st day of April 2008. Derek, an English 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. Mark Black, a trauma doctor employed at Alberlito Hospital. Maradeth and Derek adopted Sloan White, a male born 1 April 2009 after his mother gave him up for adoption. Shortly after the adoption, Derek admitted to Maradeth that he was gay and that he was involved with Dr. Mark Black. Maradeth was so outraged that she asked Derek to leave the matrimonial home. As Derek was no longer staying at the matrimonial home, he stopped contributing towards the communal (shared) expenses. In addition, when Dr. Mark Black heard that Maradeth was refusing Derek contact with Sloan, he started harassing Maradeth by sending her e-mails and cellular phone messages on a daily basis.    

 

Maradeth consults with you in respect of a divorce action. She is adamant that she wants her husband and Dr. Mark Black to pay for the embarrassment they have caused her. Maradeth furthermore instructs you that she wishes to apply for primary care-giving of Sloan and does not want Derek to have unsupervised contact with the minor child as she is concerned that his lifestyle (having intimate relations with another man) will have a negative effect on 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 threatens to stop all financial assistance he is presently providing Maradeth and Sloan and to sell all the household furniture to Cash Converters. Explain to Maradeth what remedies are available to her to safeguard her interest.                                                 (20)

 

1.3     Considering the aforementioned circumstances should Maradeth apply for an interdict against Mark in terms of the recently promulgated Prevention of Harassment Act 17 of 2011, and if so, under what circumstances will she be able to do so?  In addition can she claim the same relief against Derek under the same Act?                                                                                                   (20)

 

 

 

Question 2:

 

Mrs. Li, a Japanese 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. Li

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. Li 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. The social welfare officer does not support inter-racial adoptions.

 

2.1     Considering the ‘best interest principle’ as well as Section 28 of the Constitution of the Republic of South Africa, 1996 do you believe that Lucky’s best interest will be served by allowing the inter-racial adoption? Substantiate your answer with reference to legislation.                                                  (15)

 

2.2     Explain to Ms. Xaba the procedure involved in Mrs. Li’s proposed adoption with reference to the provisions of the Children’s Act 38 of 2005.                         (15)

 

 

 

THE END

2013 Exam paper

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 1^st 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 1^st 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

2014 Supplementary exam paper

Question 1:

 

Dr. Derek Grey, a neurologist employed at Netcare Paarl met his wife Maradeth Grey whilst he was on holiday in England. Maradeth was a kickboxing trainer and worked as a bartender at the “Bangers and Mash Pub” during the nights. They decided to get married in South Africa at Derek’s home located at 1 Summer Road, Paarl, Western Cape.  Maradeth’s dad, Mr White was very upset about the marriage as Maradeth has just divorced her previous husband, John Black, and it meant that his daughter will have to relocate to Africa.

 

Derek and Maradeth decided to get married in terms of the Civil Union Act 17 of 2006 on the 1^st day of April 2010. Shortly after the marriage, Maradeth fell pregnant and gave birth to twin boys, Lex and Avery on the 1^st day of April 2011. Maradeth and the twins are on Derek’s medical aid fund. Derek is furthermore a member of the Paarl Netcare provident fund as administered by Alex Forbes Insurance located at Unit 1, Forbes Building, Johannesburg.

 

When the boys turned three, Maradeth decided to continue with her kickboxing career as a trainer at the “Paarl Blood and Guts Kickboxing Centre.” It was shortly after she started training again, that she met Mark Grey, a kickboxing champion. Maradeth and Mark started having intimate relations. At home, Maradeth became impossible to live with. She frequently had anger outbursts threatening Derek that she will kill him or make sure that he never sees his children again. One evening Maradeth lost control of her emotions and punched Derek in the face breaking his jaw. Derek phoned the police and asked them to charge her with assault.

 

 

Derek consults with you in respect of a divorce action. He is adamant that he wants Maradeth and her boyfriend to “pay” for the pain and suffering they have caused him. Derek furthermore instructs you that he wants primary caregiving of his boys and that he wants Maradeth to only visit with the boys if there is an adult present. In addition he wants Maradeth to pay maintenance in respect of the children at the rate of R5000-00 per month for both children. He is prepared to pay all the school expenses and medical expenses relating to the children.  

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 Derek. 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.                                                                                                             [(40)]

 

 

 

 

 

 

 

 

Question 2:

 

2.1     Explain to Alison the procedure involved in applying for maintenance, as well as the criteria the court will apply in considering such an application. Reference must be made to relevant legislation.                                                           [10]

 

2.2           Mention and discuss what relief can be claimed in terms of a Domestic Violence order.        Reference must be made to relevant legislation.                           [10]

 

2.3     Outline the procedure and criteria applied in bringing a R43 application. In answering the said question reference must be made to the relief that can be claimed in terms of a R43 application.                                                            [10]

 

 

 

Question 2:

 

Ms. Young, a British citizen, visited South Africa. Whilst travelling to Johannesburg,

she  encountered a 10 year old boy by the name of Lucky Ndlovu. Ms. Young was so

taken by this little boy, especially after learning that Lucky was a street child that she

immediately started the adoption process. Despite Lucky getting along with Ms. Young,

he did not want to move to England.

 

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 is adequately protected I terms f he Children’s Act 38 of 2005? Substantiate your answer with reference to legislation.                                (15)      

 

2.2     Explain to Lucky the procedure involved in Ms. Young’s proposed adoption with reference to the provisions of the Children’s Act 38 of 2005.                         (15)

                                                                                                                        [30]

 

 

THE END

 

 

 

2014 Exam paper

Question 1:

 

Dr. Derek Grey, a neurologist employed at Netcare Paarl met his wife Maradeth Grey whilst he was on holiday in England. Maradeth was a kickboxing trainer and worked as a bartender at the “Bangers and Mash Pub” during the nights. They got married in South Africa at Derek’s home located at 1 Summer Road, Paarl, Western Cape.  Maradeth’s dad, Mr White was very upset about the marriage as Maradeth was just divorced from her previous husband, John Black.

 

Derek and Maradeth decided to get married in terms of the Marriage Act on the 1^st day of April 2010. The parties enter into an ante-nuptial contract in terms whereof all communal profit and loss were excluded. Maradeth has a son from a previous marriage, namely Lex, born on the1 April 2005. Derek is furthermore a member of the Paarl Netcare provident fund as administered by Alex Forbes Insurance located at Unit 1, Forbes Building, Johannesburg.

 

When Lex turned ten, Maradeth decided to continue with her kickboxing career as a trainer at the “Paarl Blood and Guts Kickboxing Centre.” It was shortly after she started training, that she met Mark Grey, a kickboxing champion. Maradeth and Mark started having intimate relations. At home, Maradeth became impossible to live with. She frequently had anger outbursts threatening Derek that she will kill him or make sure that he never sees his children again. One evening Maradeth lost control of her emotions and punched Derek in the face breaking his jaw. Derek phoned the police and asked them to charge her with assault.

 

Derek consults with you in respect of a divorce action. He is adamant that he wants Maradeth and her boyfriend to “pay” for the pain and suffering they have caused him. 

 

 

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 Derek. 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     In terms of the Uniform Rules of Court, explain the divorce procedure as from the initial drafting of the necessary documents to commence a divorce action to divorce judgment being delivered. Reference must be made to the relevant rules applicable.                                                                                                  (20)

 

 

1.3     On receipt of the divorce summons Maradeth threatens to remove all the household items from the matrimonial home and to sell it to Cash Converters. In addition she informs Derek that she will be cancelling the debit orders that get deducted from her bank account in respect of the vehicle insurance as well as the bond repayment. Explain to Derek what remedies are available to him to safeguard his interest by considering each application’s criteria, procedure, and the relief that can be claimed as well as how such relief can be enforced.       (20)

 

 

 

Question 2:

 

Ms. Yang, a Japanese citizen, visited South Africa. Whilst travelling to Johannesburg,

she  encountered a 10 year old boy by the name of Lucky Ndlovu. Ms. Yang was so

taken by this little boy, especially after learning that Lucky was a street child that she

immediately started the adoption process. Despite Lucky getting along with Ms. Yang,

he did not want to move to Japan.

 

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 desire to stay in South Africa outweighs the fact that his best interest will be better be served by being adopted by Ms Yang? Substantiate your answer with reference to legislation.                                                                                (15)      

 

 

 

2.2     Explain to Lucky the procedure involved in Ms. Yang’s proposed adoption with reference to the provisions of the Children’s Act 38 of 2005.                         (15)

 

THE END

2015 Specail exam paper

Question 1:

 

You are consulted by Mrs. Ann Ndlovu. You are instructed that Mrs. Ndlovu married Mr. John Ndlovu on the 1^st day of April 2010 at Empangeni without entering into an antenuptial contract. Mr. Ndlovu had a child from a previous marriage, namely Sipho Ndlovu, a boy born 1 March 2009. Mrs. Ndlovu is unable to conceive and made use of a surrogate mother to give birth to twins, John and Jill Ndlovu, born 1 January 2011. Mrs. Ndlovu instructs you that Mr. Ndlovu is a captain in the SPAS stationed at 1 Rail Street, Empangeni and is a member of the SAPS pension fund with employee number 123. Sgt. Eve Ngcobo, also stationed at Empangeni SAPS, informed Mrs. Ndlovu that Mr. Ndlovu was having an affair with her and that she was pregnant with his child. Mrs. Ndlovu is unemployed and still resides with Mr. Ndlovu at the matrimonial home located at J1 Esikhaweni. Mrs Ndlovu wants to institute a divorce action and claim maintenance in respect of herself at the rate of R3000 per month and maintenance in respect of the children at a rate of R1500 -00 per month per child as well as all educational and medical expenses incurred on behalf of the minor children. In addition Mrs. Ndlovu instructed you to sue Sgt. Ngcobo for a R100 000 as she was the sole reason for the breakdown of the marriage relationship.  

 

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 Mrs Ndlovu. 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.                                                                                                   (45)

 

1.2     Explain to Alison the procedure involved in applying for maintenance, as well as the criteria the court will apply in considering such an application. Reference must be made to relevant legislation.                                                           [10]

 

2.2           Mention and discuss what relief can be claimed in terms of a Domestic Violence order.        Reference must be made to relevant legislation.                           [10]

 

2.3     Outline the procedure and criteria applied in bringing a R43 application. In

answering the said question reference must be made to the relief that can be claimed in terms of a R43 application.                                                            [10]

 

 

 

 

Question 2:

 

Ms. Young, a British citizen, visited South Africa. Whilst travelling to Johannesburg,

she  encountered a 10 year old boy by the name of Lucky Ndlovu. Ms. Young was so

taken by this little boy, especially after learning that Lucky was a street child that she

immediately started the adoption process. Despite Lucky getting along with Ms. Young,

he did not want to move to England.

 

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 is adequately protected I terms f he Children’s Act 38 of 2005? Substantiate your answer with reference to legislation.                                (15)      

 

2.2     Explain to Lucky the procedure involved in Ms. Young’s proposed adoption with reference to the provisions of the Children’s Act 38 of 2005.                         (15)

THE END

 

 

 

Domestic VIolence

Domestic Violence:

 

In studying domestic violence students have to refer to:

·        chapter 21 of the text book Family Law, J Heaton, LexisNexis;

·       The Domestic Violence Act 116 of 1998

Students can download a copy of the Domestic Violence Act as well as the application forms from http://www.justice.gov.za/forms/form_dva.htm.

 

Flow chart in respect of a domestic violence inquiry: 

 

1.               Client lodges a claim at the magistrate’s court that has jurisdiction to preside over the matter.

 

2.               Application is lodges by completing a standard form obtained from the clerk of the court at the court under oath.

 

3.               The clerk will peruse the application and open a file and allocate a reference/case number.

 

4.               The application will be taken to a magistrate in chambers where the magistrate will decide whether the application warrants the issuing of a interim protection order /should be dismissed or whether further evidence will be required to make a decision by issuing a Notice to Show Cause.

 

5.               In the event of an interim order / notice to show cause being ordered, the application as well as court order will be served on the Respondent via either the SAPS or the Sheriff.

 

6.               The Respondent may anticipate the interim order by filing the necessary notice at court and informing the applicant of his/her intention to address the application at an earlier date than the return date.

 

7.               The Respondent has to appear in court on the return date of the application. If he/she fails to attend court and prima facie proof exist that he/she had knowledge of the application – the interim order can be made a final order in his absence.

 

8.               If the respondent attends court on the return date the matter may be set down for a formal enquiry. At this stage the Respondent can file an opposing affidavit in either confirming or disputing the submissions made by the applicant in the application.

 

9.               Prior to the trial date the attorneys acting on behalf of the parties will prepare for a formal enquiry by having subpoenas issued i.r.o. witnesses they intend calling during the enquiry, as well as by indexing and paginating the bundle of documents they wish to use during the enquiry.

 

10.           The respective bundles of documents will be exchanged prior to the enquiry, whilst a copy will be made available to the court as well as for the witnesses.

 

11.           On the date of enquiry the applicant will firstly present viva voce evidence. After the applicant testified the respondent’s attorney will have an opportunity to cross-exam, thereafter re-examination by the applicant’s attorney.

 

12.           The applicant’s attorney may call further witnesses to support the application before court. Further witnesses must wait outside the court.

 

13.           Once the applicant has finalized his/her case – the applicant’s attorney will close its case.

 

14.           The respondent will thereafter present his/her case. Again the respondent will lead viva voce evidence and steps 11-13 are repeated.

 

15.           Once the respondent closes his/her case the attorneys of the parties will present arguments to the magistrate, where after the court will make a ruling.

 

16.           The final order may be rescinded or varied on application.

 

Maintenance Application

 

Please ensure that you download the Maintenance Act as well as the relevant forms from http://www.justice.gov.za/forms/form_mnt.htm

 

In addition please consult J Heaton's Family law textbook, chapter 13.

 

Flow chart in respect of a maintenance enquiry:

 

1.              Client lodges a claim at the magistrate’s court that has jurisdiction to preside over the matter.

 

2.              Application is lodges by completing a standard form obtained from the maintenance prosecutor at the court under oath.

 

3.              The maintenance prosecutor will peruse the application and if satisfied that there is a responsibility to maintain /good cause shown for the variation of an existing order exists, issue the application with a reference/case number.

 

4.              The application as well as a notice to appear in court for an enquiry will be served on the Respondent via either the SAPS or the Sheriff.

 

5.              The Respondent has to appear at court on the date of the application. If he/she fails to attend court and prima facie proof exist that he/she had knowledge of the application – the prosecutor/applicant’s attorney may request that judgement by default is granted.

 

6.              If the respondent attends court on the date of the enquiry the matter will firstly be dealt with informally with an attempt to settle.

 

7.              If the parties cannot settle the matter- the matter will be postponed by a magistrate for trial.

 

8.              Prior to the trial date, either party may approach the prosecutor/the prosecutor on own accord can instruct a maintenance investigator to secure certain information etc.

 

9.              Prior to the trial date the attorneys acting on behalf of the parties will prepare for trial by having subpoenas issued iro witnesses they intend calling during the trial, as well as by indexing and paginating the bundle of documents they wish to use during the maintenance trial and by discovering same.

 

10.          The respective bundles of documents will be exchanged prior to trial, whilst a copy will be made available to the court, the maintenance prosecutor as well as for the witnesses.

 

11.          On the date of trial the applicant will firstly present viva voce evidence. After the applicant testified the respondent’s attorney will have an opportunity to cross-exam, thereafter re-examination by the applicant’s attorney.

 

12.          The applicant’s attorney may call further witnesses to support the application before court. Further witnesses must wait outside the court.

 

13.          Once the applicant has finalised his/her case – the applicant’s attorney will close its case.

 

14.          The respondent will thereafter present his/her case. Again the respondent will lead viva voce evidence and steps 11-13 are repeated.

 

15.          Once the respondent closes his/her case the attorneys of the parties will present arguments to the magistrate, where after the court will make a ruling.