PVL2601/201/2/2016

Tutorial Letter 201/2/2016

Family Law
PVL2601

Semester 2

Department of Private Law

This tutorial letter contains important information

about your module.

BARCODE
 CONTENTS

Page

1 INTRODUCTION .......................................................................................................................... 3
2 MEMORANDUM FOR ASSIGNMENT 01 ..................................................................................... 3
3 MEMORANDUM FOR ASSIGNMENT 02 ..................................................................................... 5
4 MEMORANDUM FOR ASSIGNMENT 03 ..................................................................................... 9
5 IN CLOSING ............................................................................................................................... 21

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Dear Student

1 INTRODUCTION
This tutorial letter provides you with a complete memorandum for Assignments 01 to 03 of this
semester.

2 MEMORANDUM FOR ASSIGNMENT 01

Mr and Mrs Tau are still married to each other, but have been separated since 2014 when Mr
Tau moved in with his girlfriend. The parties have two minor boys. When Mr Tau left the
matrimonial home, he stopped contributing to Mrs Tau and the boys’ maintenance. In 2015
Mrs Tau obtained an order from the Maintenance Court to the effect that Mr Tau had to pay
her R3 000 per month as maintenance for herself and another R2 500 per month as
maintenance for the two boys. However, to date Mr Tau has not made a single maintenance
payment. He has recently resigned from his job, but owns a luxury home and several
expensive sports cars, which are all fully paid for.

Mrs Tau does not want to lay criminal charges against Mr Tau for his failure to comply with the
maintenance order, but feels that he should pay his fair share of her and the boys’
maintenance in terms of the order. As she earns a meagre salary, she and the boys have been
living in parlous conditions since Mr Tau has left the matrimonial home. With reference to
legislation and case law, fully advise Mrs Tau on the civil remedies that would be available to
enforce the maintenance order in her and the children’s favour under the circumstances.

Identifying the problem:

The question concerns the enforcement of a maintenance order (as discussed under spousal
maintenance, one of the invariable consequences of marriage).(1)

Relevant law applicable to problem:

Firstly, the Maintenance Act 99 of 1998(1) provides that if a maintenance debtor fails to make a
payment in accordance with a maintenance order within ten days from the date on which the
payment becomes payable,(1) the maintenance creditor may apply for any of the following:

- a warrant of execution against the maintenance debtor’s property;(½)

- an order for the attachment of emoluments due to the maintenance debtor;(½)
- an order for the attachment of any present or future debt owing or accruing to the
maintenance debtor.(½)

A warrant of execution relates only to the amount necessary to cover the amount the
maintenance debtor failed to pay in terms of the maintenance order, together with interest
thereon, and the costs of the execution.(1) A warrant of execution operates against the
maintenance debtor’s movable property and, if that is insufficient, his or her immovable
property.(1) (OR Mrs Tau must first execute the warrant against Mr Tau’s sports cars and if that
is insufficient, the warrant must be executed against his home.(1) The maintenance investigator
or maintenance officer must assist Mrs Tau in taking the necessary steps to execute the warrant
of execution.(1))

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Although the Maintenance Act only deals with execution once the maintenance debtor is in
arrears, our courts have held that as far as maintenance for children is concerned, they have a
duty in terms of section 28(2) of the Constitution to protect the best interests of children of
maintenance debtors who are likely to shirk their future maintenance responsibilities(1) and that
the High Court is therefore empowered to order enforcement by way of remedies that fall
outside the ambit of the Maintenance Act.(1) The courts have specifically cited the Constitutional
Court’s decision in Bannatyne v Bannatyne(1) and Fose v Minister of Safety and Security(1) in
support of extension of the enforcement of a maintenance debtor’s obligations towards his or
her children.

In Fose the Constitutional Court emphasized the court’s duty to ensure that effective relief is
granted for the infringement of a constitutional right.(1)

Bannatyne specifically dealt with enforcement of maintenance. Mokgoro J held that the judiciary
must endeavour to secure for vulnerable children and disempowered women their small but life-
sustaining legal entitlements.(1) To protect children and women, who are disadvantaged by the
maintenance system (which functions on a gendered basis), effective mechanisms for the
enforcement of maintenance obligations are essential.(1)

(Note that although cases like Mngadi v Beacon Sweets & Chocolates Provident Fund, Burger v
Burger, Gerber v Gerber and Pocock, and Soller v Maintenance Magistrate, Wynberg are also
applicable to the question, you were not required to study them.)

(There are 12½ possible marks, but only 7 marks can be allocated for the discussion of the
relevant law.)

Application of the law to the facts

As Mr Tau, the maintenance debtor, recently resigned from his job and as there is no mention in
the facts of the question of any present or future debt owing or accruing to him, Mrs Tau, the
maintenance creditor, may apply for a warrant of execution.(½)

It is therefore likely that Mrs Tau may use the warrant of execution to also secure future
maintenance payments for the boys and not only arrears.(½)

NB: A mark was also awarded for language, the use of tenses/syntax and formulation.

TOTAL FOR ASSIGNMENT 01: [10]

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3 MEMORANDUM FOR ASSIGNMENT 02

1. Which one of the following is a consequence of a void marriage?

[1] There is a reciprocal duty of support between the parties.

[2] The children born from the marriage are children born of unmarried parents.
[3] The parties may inherit intestate from each other.
[4] Community of property operates between the parties. (1)

1. [2](1)

(See Heaton J and Kruger JM South African Family Law [the prescribed textbook] pp
34-38 and the study guide pp 12-13.)

2. In which one of the following cases was it decided that a spouse who is married in
community of property cannot stand surety for the other spouse’s debts because
those debts are joint debts and in our law a person cannot stand surety for his or her
own debt?

[1] Amalgamated Banks of South Africa Bpk v De Goede

[2] Bopape v Moloto
[3] Visser v Hull
[4] Nedbank Ltd v Van Zyl (1)

2. [4](1)

(See prescribed textbook p 67, Heaton J and Kruger JM Casebook on South African
Family Law [the prescribed casebook] pp 101-106 and the study guide p 33.)

3. Section 4(2) of the Divorce Act 70 of 1979 contains three guidelines which may
indicate that a marriage has broken down irretrievably. Which one of the following is
NOT one of these guidelines?

[1] The parties have not lived together as husband and wife for a continuous
period of at least one year immediately prior to the date of the institution of
the divorce proceedings.
[2] The defendant has committed adultery and the plaintiff finds it irreconcilable
with a continued marriage relationship.
[3] The defendant suffers from a mental illness or is continuously unconscious.
[4] The defendant has been declared a habitual criminal and has been
imprisoned as a result of the sentence. (1)

3. [3](1)

(See the prescribed textbook pp 121-122 and the study guide p 68.)
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 4. Mr and Mrs Botha are married in community of property. Which one of the following
assets can be forfeited by Mr Botha if Mrs Botha succeeds with a claim for total
forfeiture of benefits against him upon divorce?

[1] The house that Mrs Botha brought into the joint estate.
[2] The house that Mr Botha brought into the joint estate.
[3] The car that Mr Botha bought with his salary for himself.
[4] The car that Mr Botha bought with his salary for Mrs Botha. (1)

4. [1](1)

(See the prescribed textbook pp 136-137 and the study guide pp 78-79.)

5. Mr and Mrs Carrim were married with complete separation of property in 1982.
Which one of the following contributions will NOT qualify for a redistribution order in
favour of Mrs Carrim upon divorce?

[1] Mrs Carrim takes care of the household and the children born from the
marriage.
[2] Mrs Carrim manages the books of Mr Carrim’s psychology practice in her
spare time without remuneration.
[3] Mrs Carrim contributes part of her salary towards Mr Carrim’s holiday home.
[4] Mrs Carrim declines an offer to be the manager of a new business in Dubai. (1)

5. [4](1)

(See the prescribed textbook pp143-145; the prescribed casebook p 215 and the study
guide p 83-84.)

6. What kind of maintenance can be awarded to a spouse who does not really need
maintenance at the time of divorce, but who may need maintenance in the future?

[1] Rehabilitative maintenance.

[2] Token maintenance.
[3] Lump-sum maintenance.
[4] No maintenance. (1)

6. [2](1)

(See the prescribed textbook pp 163-164 and the study guide p 94.)

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7. In Krugel v Krugel the court found that the following care order is an appropriate
order in circumstances where there is hostility between the children’s parents:

[1] deferred care.

[2] divided care.
[3] joint care.
[4] sole care. (1)

7. [3](1)

(See the prescribed textbook p180-184; the prescribed casebook pp 288-292 and the
study guide pp 100-101.)

8. Parties married in accordance with the Civil Union Act 17 of 2006 may legally refer to
their relationship as ... .

[1] a civil partnership only

[2] a domestic partnership only
[3] a marriage or a civil partnership
[4] a marriage or a domestic partnership (1)

8. [3](1)

(See the prescribed textbook p 205 and the study guide p 107.)

9. A customary marriage entered into after the Recognition of Customary Marriages

Act 120 of 1998 (which came into operation on 15 November 2000) must be
registered within ... months of the wedding date or within such longer period as the
Minister prescribes in the Government Gazette.

[1] three
[2] six
[3] nine
[4] twelve (1)

9. [1](1)

(See the prescribed textbook p 220.)

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10. In which one of the following court cases was it held that the denial of the statutory
right to claim maintenance does not violate a surviving life partner’s right to dignity?

[1] Gory v Kolver (Starke Intervening)

[2] Langemaat v Minister of Safety and Security
[3] Volks v Robinson
[4] Satchwell v President of the Republic of South Africa (1)

10. [3](1)

(See the prescribed casebook p 262.)

TOTAL FOR ASSIGNMENT 02: [10]

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4 MEMORANDUM FOR ASSIGNMENT 03

You should use the following memorandum to evaluate your answers for Assignment 03. You
should also mark your answers by using the marking schedule set out in brackets in the
memorandum, and calculate your mark for the assignment out of 100 to see how well you did.
Please note once again that the mark you allocate to Assignment 03 is of no importance to us,
since it does not contribute to your final mark.

SECTION A : MULTIPLE-CHOICE QUESTIONS

1 X and Y are married. They have a son, M. Y also has a daughter, Q, from a previous
marriage. M and Q are related to each other as follows:

[1] They are blood relatives in the direct line.

[2] They are collateral blood relatives.
[3] They are relatives by affinity in the direct line.
[4] They are relatives by affinity in the collateral line. (2)

1. [2](2)

(See Heaton J and Kruger JM South African Family Law [the prescribed textbook] pp 28-
29 and study guide pp 6-7.)

2 In Ex parte Dow the court decided that a marriage that had been solemnised in the
garden of a private dwelling is ...

[1] void.
[2] voidable.
[3] valid.
[4] putative. (2)

2. [3](2)

(See the prescribed textbook p 33 and study guide p 9.)

3 In which case was the concept consortium omnis vitae described as a broad,
indefinable concept that nevertheless has a well-understood meaning?

[1] Wiese v Moolman

[2] Grobbelaar v Havenga
[3] Peter v Minister of Law and Order
[4] Excell v Douglas (2)

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3. [1](2)

(See the prescribed textbook p 42 and the study guide p 20.)

4 Which one of the following acts does NOT require written consent of both spouses,
attested by two competent witnesses, in respect of each transaction separately?

[1] Receiving credit under a credit agreement as defined in the National Credit Act
34 of 2005
[2] Entering into a contract to alienate, burden with a mortgage or servitude, or
confer a real right in immovable property which forms part of the joint estate
[3] Alienating or pledging assets held mainly as investments and which form part
of the joint estate
[4] Purchasing immovable property under a contract of sale as defined in the
Alienation of Land Act 68 of 1981 (2)

4. [3](2)

(See the prescribed textbook p 73 and the study guide p 36.)

5 Which one of the following is NOT a requirement that needs to be considered by the
court before an application for variation of the parties’ matrimonial property system
will be granted?

[1] There are sound reasons for the proposed change.

[2] The application must be made within a reasonable time.
[3] Notice of the proposed change has been given to all the creditors of the
spouse.
[4] No other person will be prejudiced by the change. (2)

5. [2](2)

(See the prescribed textbook p 106 and the study guide p 55.)

6 Which one of the following is NOT a way in which a civil marriage is dissolved?

[1] The death of one or both of the spouses

[2] The annulment of a voidable marriage
[3] Divorce
[4] Extra-judicial separation (2)

6. [4](2)

(See the prescribed textbook p 113 and the study guide p 61.)

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7 Which elements do the test that the courts use upon divorce to determine whether the
consortium between the parties has been terminated or seriously violated consist of?

[1] Objective elements

[2] Subjective elements
[3] Objective and subjective elements
[4] Objective or subjective elements (2)

7. [3](2)

(See the prescribed textbook p 120 and the study guide p 68.)

8 To which one of the following marriages will the provisions of the Divorce Act 70 of
1979 regarding pension interests NOT apply?

[1] A marriage with complete separation of property concluded before 1 November

1984
[2] A marriage with complete separation of property concluded on or after
1 November 1984
[3] A marriage in community of property concluded on or after 1 November 1984
[4] A marriage with application of the accrual system concluded on or after
1 November 1984 (2)

8. [2](2)

(See the prescribed textbook p 134 and the study guide p 74.)

9 Which one of the following criteria does the court have to take into account when
considering an order for the forfeiture of patrimonial benefits against a spouse in
terms of section 9 of the Divorce Act 70 of 1979?

[1] Undue benefit of the spouse

[2] The principle of fairness
[3] The one-third rule
[4] The yardstick of equality (2)

9. [1](2)

(See the prescribed textbook p 135, the prescribed casebook p 195 and the study guide
p 78.)

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10 Which provision affords every child who is of such an age, maturity and stage of
development as to be able to participate in any matter concerning him or her, the right
to participate in an appropriate way and to have due consideration given to his or her
views?

[1] Section 10 of the Children’s Act 38 of 2005

[2] Section 28 of the Constitution of the Republic of South Africa, 1996
[3] Section 6 of the Divorce Act 70 of 1979
[4] Section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 (2)

10. [1](2)

(See the prescribed textbook p 176.)

11 Which one of the following requirements does NOT apply to a civil union?

[1] Both parties must have capacity to act.

[2] Both parties must agree to enter into a civil union with one another.
[3] Both parties must be of the same sex.
[4] The civil union between the parties must be lawful. (2)

11. [3](2)

(See the prescribed textbook pp 205-207 and the study guide pp 3 and 106.)

12 In Gumede v The President of the Republic of South Africa the Constitutional Court
removed the differentiation between the patrimonial consequences of …………
entered into before and after the Recognition of Customary Marriages Act 120 of
1998:

[1] monogamous customary marriages

[2] a minor’s customary marriage
[3] polygynous customary marriages
[4] civil unions (2)

12. [1](2)

(See the prescribed textbook p 221, the prescribed casebook pp 325 and the study guide
p 115.)

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13 In which one of the following circumstances would a child be considered adoptable?

[1] The child performs poorly at school.

[2] The child is constantly fighting with his or her siblings.
[3] The child has been abandoned.
[4] The child wants to move to another city. (2)

13. [3](2)

(See the prescribed textbook p 317.)

14 In which one of the following ways can a person acquire parental responsibilities and
rights in respect of a child?

[1] Entering into a permanent life partnership with the child’s biological mother
after the child’s birth
[2] Entering into a civil marriage with the child’s mother but divorcing her before
the child is conceived
[3] Giving birth to the child
[4] Paying a sum of money to the court to acquire such responsibilities and rights
(2)

14. [3](2)

(See the prescribed textbook p 311 and the study guide pp 135-136.)

15 Section 28 of the Constitution of the Republic of South Africa, 1996 confers special
protection on children below the age of …….. .

[1] 21 years
[2] 18 years
[3] 16 years
[4] 10 years (2)

15. [2](2)

(See the prescribed textbook pp 287-288.)

TOTAL SECTION A: [30]

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 SECTION B

QUESTION 1

Mr and Mrs Green entered into a civil marriage without an antenuptial contract a few years
ago. At the time of entering into the marriage Mrs Green was unaware of the fact that Mr
Green was already a party to another civil marriage in community of property. Mrs Green
only found out about the other civil marriage after Mr Green’s death a week ago. Mrs Green
was informed that her marriage to Mr Green was a putative marriage. She now approaches
you for advice.
As her attorney, advise her about the patrimonial consequences of her marriage and
whether she is entitled to any claims against Mr Green’s deceased estate. Refer to relevant
case law in your answer. [6]

As Mr and Mrs Green were married without an antenuptial contract and Mrs Green was the only
bona fide party, the marriage will be treated as having been in community of property(1) or rather
as having been a universal partnership(1) if this is to the advantage of the bona fide party (Mrs
Green).(1)
However, in terms of the decision in Zulu v Zulu,(1) 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.(1) 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,(1) as all of 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.(1) 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 Green will be able to claim from Mr
Green’s deceased estate.(1)
There are 8 possible marks for this six-mark question.

(See the prescribed textbook pp 39-40 and the prescribed casebook pp 59-62.)

QUESTION 2

Mr and Mrs Lerumo were married out of community of property on 1 January 2005. At the
time of the conclusion of the marriage Mr Lerumo's liabilities exceeded his assets while Mrs
Lerumo had R15 000 in cash. Mr Lerumo recently died. Mr Lerumo's net estate at the time
of his death is worth R100 000 and consists of the following:

• R6 000 which he received as compensation for the loss of income he sustained while
he was in hospital after the accident
• R14 000 which he received as compensation for the damages caused to his motor
vehicle during the accident
• R30 000 which he received as a donation from his mother
• R50 000 which he earned on his own as an attorney
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Mrs Lerumo's net estate at the time of Mr Lerumo's death is worth R90 000 and includes the
following:

• R20 000 in cash which she received for a watch she had sold to her sister; she
inherited the watch from her grandmother a few years before

Suppose that during the subsistence of the marriage, money depreciated to such an extent
that, in terms of the weighted average of the consumer price index (CPI), R2 has the same
value as R1 at the beginning of the marriage. Indicate, by doing the necessary calculations,
whether Mrs Lerumo has any claim against Mr Lerumo's estate. Discuss your answer by
substantiating your calculations. [14]

Because Mr and Mrs Lerumo married out of community of property and community of profit and
loss after 1 November 1984 / 2 December 1988, their marriage is automatically subject to the
accrual system.(1) If spouses do not want the accrual to apply they have to exclude it
expressly.(1)

The accrual in Mr Lerumo's estate is calculated as follows:

Net value on dissolution(1) R100 000(½)

Minus net commencement value(1)

(Liabilities exceed assets, therefore deemed to be zero) - R 0(1)

Minus assets excluded from the accrual:(1)

Donation from third party(1) - R 30 000(½)

(Damages in the amount of R6 000 for loss of income

and R14 000 for damages to motor vehicle NOT EXCLUDED
because they are damages for patrimonial loss)(1)

Accrual R 70 000(1)

The accrual in Mrs Lerumo's estate is calculated as follows:

Net value on dissolution R 90 000(½)

Minus net commencement value:

Adapt commencement value with CPI
Accept that money was worth twice as
much at the commencement of the marriage
as at its dissolution(1) (Thus R15 000 then
adjusted to R30 000 now) - R 30 000(1)

Minus asset excluded from accrual:

R20 000 cash which substituted an excluded asset(1) - R 20 000(½)

Accrual R 40 000(1)

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Mrs Lerumo's estate has the smaller accrual and she can claim half the difference between the
bigger and smaller accruals.(1)

Mrs Lerumo's accrual claim =½ (R70 000 – R40 000)(1)

= ½ (R30 000)
= R15 000

Mrs Lerumo is therefore entitled to R15 000.(1)

There are 18 possible marks for this 14-mark question.

(See the prescribed textbook pp 94-99 and the study guide pp 47-52.)

QUESTION 3

In a double civil marriage ceremony on 10 December 1990 two brothers, Tom and Zane,
respectively married two sisters, Tammy and Zettie. Both marriages were concluded out of
community of property with exclusion of the accrual system. Tom and Zane are both quite
conservative and believe that a woman’s place is in the home. Consequently neither
Tammy nor Zettie has ever entered the formal labour market. They are, however, both
qualified teachers. Tom and Zane are very wealthy wine farmers. The wine farm is held in a
family trust of which Tom and Zane’s children are the capital beneficiaries.

(a) At the end of 2013 Tom got involved in an adulterous relationship and Tammy now
plans to institute divorce proceedings against Tom. On what ground would Tammy
be able to institute divorce proceedings? (1)

(b) Would Tammy be entitled to request a redistribution order in terms of section 7(3) of
the Divorce Act 70 of 1979 against Tom? Briefly substantiate your answer. (2)

(c) Tammy was informed that she will not be entitled to claim permanent maintenance
from Tom because she is a qualified teacher (in her mid-forties). What other kind of
maintenance would Tammy probably be entitled to upon divorce? Fully discuss what
this kind of maintenance entails by referring to case law. (10)

(d) Suppose that the specific maintenance order implied in subsection (c) of this
question is granted in favour of Tammy upon divorce in terms of section 7(2) of the
Divorce Act 70 of 1979 and that Tom dies in a helicopter crash shortly after the
divorce. What effect will Tom’s death have on the maintenance order in favour of
Tammy? Also set out the necessary authority for your answer. (2)

(e) Suppose that Zane, who was still very happily married to Zettie at the time, also died
in the helicopter crash that killed Tom. As Zettie has no assets of her own and will
probably inherit very little from Zane because their matrimonial home is also held in
the family trust of which Zane and Tom’s children are the capital beneficiaries, she
wants to know from you if she will be able to claim maintenance for herself from
Zane’s estate? Fully advise Zettie on this matter with reference to legislation. (10)
[25]

(a) The irretrievable breakdown of the marriage.(1)

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(See the prescribed textbook pp 119-122 and the study guide pp 67-68.)

(b) No.(1)
Section 7(3) is only applicable to marriages with complete separation of property
concluded before the coming into operation of the Matrimonial Property Act 88 of 1984
on 1 November 1984. / Tom and Tammy were married after 1 November 1984.(1)

(See the prescribed textbook p 138.)

(c) Tammy would probably be entitled to rehabilitative maintenance upon divorce.(1)

In terms hereof, Tammy who has an earning capacity as a qualified teacher(1) will be
awarded maintenance for a limited period,(1) during which she must be retrained to take
up paid employment.(1)

In Botha v Botha(1) the court described the purpose of rehabilitative maintenance as

enabling the spouse who “has been disadvantaged or disabled in some way by the
marriage through training or therapy or opportunity, to be restored either to the economic
position vis-à-vis employment which she occupied prior to the marriage, or to be
reintroduced to the ability to participate effectively and profitably in normal economic
life”.(1) The court thus required a causal connection between the marriage and the
spouse’s inability to be self-supporting.(1) In the circumstances of Botha, the court
concluded that the wife did not need rehabilitative maintenance as there was no
evidence that she was “less able to support herself or has suffered in her ability to
support herself by reason of the marriage”, that she earned less than she would have
earned if she had not married her husband, that her employment was less secure, or that
rehabilitative maintenance would enable her to support herself at a higher standard of
living from her own income.(1)

In Kooverjee v Kooverjee(1) the court held that although the courts frequently limit
rehabilitative maintenance to periods ranging from six to 18 months,(1) “a proper analysis
of the rationale behind the awarding of rehabilitative maintenance will conclude that an
arbitrary period for the payment of rehabilitative maintenance will not address the
ultimate achievement of self-sufficiency”.(1) This dictum is most welcome and it is hoped
that the courts will in future adopt a more realistic approach towards the period it takes
for the spouse who has the lower earning capacity to become financially self-sufficient.(1)
In casu the court referred to the high standard of living the spouses enjoyed during the
subsistence of the marriage, the husband’s ability to maintain that standard of living, and
the fact that continued care of the couple’s children by their mother would be in their best
interests. The court was of the view that in the circumstances of this case it was possible
for both parties to maintain their standard of living after the divorce while simultaneously
enabling the wife to become self-supporting.(1) The court made a tapered award for
rehabilitative maintenance, which took account of the wife’s decreasing need to devote
time to child-care as her children grew older. The maintenance decreased every two
years and would be payable until the children completed their tertiary education or
became self-supporting, or for a period of ten years, whichever event occurred first.(1)

In Kroon v Kroon(1) the court pointed out that in each case the court must consider the
possibility that a spouse who is not currently working may be able to work, that is, the
notional employability of the spouse must be considered. Only if a spouse can be trained

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 or retrained will some earning capacity be attributed to her and the court should consider
a rehabilitative maintenance order.(1)

In Pommerel v Pommerel(1) the court held that if it is alleged that a wife should be able to
support herself by entering the labour market but she does not want to do so, the court
must consider whether her decision not to enter the labour market is reasonable in the
circumstances of the particular case.(1)

In terms of all these decisions Tammy would most probably qualify for rehabilitative
maintenance (Tammy was not allowed to work during the marriage, the parties
maintained a high standard of living, Tom probably has the ability to pay maintenance,
Tammy has a notional earning capacity).(1)

There are 19 possible marks for this 10-mark question.

(See the prescribed textbook pp 160-162, the prescribed casebook pp 245-254 and the
study guide 93.)

(d) Tom’s death will terminate the maintenance order in Tammy’s favour(1) as per the
decision of the Supreme Court of Appeal in Kruger v Goss.(1)

(See the prescribed textbook pp 168-169 and the study guide p 96.)

(e) Yes, Zettie will be able to claim maintenance from Zane’s estate(1) in terms of the
Maintenance of Surviving Spouses Act.(1)

The provisions of this Act will apply as Zane and Zettie’s marriage was dissolved by
death after the commencement date of the Act on 1 July 1990.(1)

This claim arises regardless of the matrimonial property system which operated in the
marriage(1) and regardless of whether or not the surviving spouse stands to inherit form
the deceased spouse.(1)

Zettie will have a claim against Tom’s estate in respect of her reasonable maintenance
needs(1) until her death or remarriage(1) in so far as she is unable to provide for them from
her own means or earnings.(1) The surviving spouse’s means include any matrimonial
property(1) and any inheritance from the deceased's estate to which he or she may be
entitled.(1)

When determining the surviving spouse’s reasonable maintenance needs the following
factors must be taken into account: the amount available in the deceased estate for
distribution to heirs and legatees;(1) the existing and expected means, earning capacity,
financial needs and obligations of the surviving spouse;(1) duration of the marriage;(1) the
surviving spouse’s standard of living during the subsistence of the marriage;(1) any other
relevant factor.(1)

As Zettie and Zane were married out of community of property, Zettie will have no
patrimonial claims against Zane’s estate upon the dissolution of the marriage through
death; she also stands to inherit very little from Zane as most assets are held in a family
trust of which the children are the capital beneficiaries; although Zettie is a qualified
teacher with an earning capacity she has never worked outside the house –
consequently, she will, at least for a while, not be able to provide for her own reasonable
maintenance needs; the parties were married for over 23 years; Zettie had a high

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standard of living during the subsistence of the marriage; Zane was a rich wine farmer.(2
marks for any application to the facts)

There are 17 possible marks for this 10-mark question.

(See the prescribed textbook pp 115-118 and the study guide pp 62-64.)

QUESTION 4

The names of five court cases dealing with Muslim and Hindu marriages and life
partnerships are given below. Write the name of the court case that offers authority for the
statement in the first column, on the dotted line in the second column.

Govender v Ragavaya
Gory v Kolver
AM v RM
Khan v Khan
Ryland v Edros [10]

Statement Case

The court held that the contractual obligations Ryland v Edros(2)

flowing from a de facto monogamous Muslim
marriage can be recognised and enforced as (See p 244 of the prescribed textbook.)
between the parties despite the fact that the
marriage is potentially polygynous.

The court granted a Muslim woman’s application for AM v RM(2)

maintenance pendente lite in terms of rule 43 of the
Uniform Rules of Court even though the spouses (See p 245 of the prescribed textbook.)
had never entered into a civil marriage.

The court held that the word “spouse” in the Govender v Ragavayah(2)
Intestate Succession Act 81 of 1987 includes the
surviving partner in a monogamous Hindu marriage. (See p 249 of the prescribed textbook.)

The court declared the exclusion of same-sex life Gory v Kolver(2)

partners from intestate inheritance from each other’s
deceased estate in terms of the Intestate (See p 266 of the prescribed textbook.)
Succession Act 81 of 1987 unconstitutional.

The Transvaal Provincial Division of the High Court Khan v Khan (2)
(now the North Gauteng High Court) recognised the
duty of support in a de facto polygynous Muslim (See p 245 of the prescribed textbook.)
marriage.

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QUESTION 5

(a) List the requirements for a valid customary marriage. (3)

(b) Will the delivery of lobolo continue under the Recognition of Customary Marriages
Act 120 of 1998? Briefly motivate your answer. (2)
[5]

(a) (i) Bride and groom over the age of 18 years(1)

(ii) Both consent to the marriage(1)
(iii) Negotiated and entered into or celebrated in accordance with customary law(1)

(See the prescribed textbook pp 217-219 and the study guide p 114.)

(b) Yes, the delivery of lobolo will continue(1) because it is a requirement under most systems
of customary law.(1)

(See the prescribed textbook pp 217-218.)

QUESTION 6

Rick and Daisy have been married for five years. At the time of their marriage Daisy already
had a daughter, Rose (now aged 8), from a previous marriage. Another daughter, Petunia
(now aged 2), was born from Rick and Daisy’s marriage. Rick and Daisy now consider
divorce. Rick is very despondent and consults you. Advise Rick on the following two
questions:

(a) Will he be obliged to maintain his stepdaughter, Rose? (4)

(b) Will the court automatically award care of Petunia to his wife, Daisy, as she will be
considered to be a better care-giving parent. (6)
[10]

(a) At common law a step-parent is not obliged to maintain his or her stepchild(1) as the duty
rests on blood relationship and not on affinity (through marriage).(1) In Heystek v
Heystek,(1) the court, however, expressed the opposite view and held that the child’s
constitutional right to parental care extends to step-parents and encompasses the child’s
maintenance needs.(1) The court also held that the constitutional right to parental care
imposes a duty of support on a step-parent.(1) Depending on whether Heystek is followed,
Rick thus would have a duty to maintain his stepdaughter.(1)

There are 6 possible marks for this 4-mark question.

(See the prescribed textbook pp 307-308 and the study guide p 141.)

(b) No, care of Petunia will not automatically be awarded to Rick’s wife, Daisy.(1)

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In the past care was normally awarded to one of the parents, with mothers being
preferred because it was simply assumed that they make better care-giving parents.(1)
The maternal preference rule has however been rejected in several cases.(1) In Van der
Linde v Van der Linde(1) the court held that mothers are not necessarily better able to be
good parents on a day-to-day basis/and that “mothering” refers to caring for a child’s
physical and emotional well-being and that mothering is not only a component of a
mother but also forms part of a father’s being.(1) The court emphasised that the quality of
a parent’s role is not simply determined by gender(1) and a father can be just as good a
“mother” as the child’s biological mother.(1)

Generally, maternity may not, on its own, be used to determine which parent should be
awarded care.(1) Acknowledging the facts of the dynamics of pregnancy and the fact that
there is often no one who can quite take the place of a child’s mother does not amount to
unfair gender discrimination.(1) In considering the child’s best interests, the court may
have regard to maternity but may not afford undue weight to it or turn it into the only
consideration.(1)

The rejection of the assumption that mothers make better care-giving parents is
undoubtedly in accordance with the equality clause of the Constitution(1) and also in
keeping with section 28(1)(b) which affords all children the right to parental care, and not
only maternal care.(1) Furthermore, the Convention on the Elimination of All Forms of
Discrimination Against Women and the Convention on the Rights of the Child require
recognition of the common responsibilities of parents for the upbringing and development
of their children,(1) and the African Charter on the Rights and Welfare of the Child
requires state parties to ensure that spouses have equal responsibilities and rights with
regard to their children during the subsistence of their marriage as well as upon its
dissolution.(1)

There are 14 possible marks for this 6-mark question.

(See the prescribed textbook p 180-184 and the study guide p 100.)

TOTAL SECTION B: [70]

TOTALFOR ASSIGNMENT 03: [100]

5 IN CLOSING
We trust that the memoranda solved any problems you may have experienced with the
assignments. Good luck with your studies.

DR SL MONNYE 012 429 8911

PROF P BAKKER 012 429 8570
PROF J HEATON 012 429 8435

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