lOMoARcPSD|6271730

Beginning and End of Legal personality Part 2 Answers

Law of Persons (University of South Africa)

StuDocu is not sponsored or endorsed by any college or university

Downloaded by Katlego Rafapa (krafapa@gmail.com)
 lOMoARcPSD|6271730

Beginning and End of Legal personality. Practice Questions, part 2.

Study unit 4: The beginning of legal personality.

1. At what moment does a person’s legal personality commence?

A natural person’s legal personality begins at birth.
2. Name the legal requirements for the beginning of legal personality
a) Birth must be fully completed - body of mother and body of the child must be completely
separated
b) Child must live after the separation even if only for a short period of time. A still born or a
child that dies during birth therefore does not acquire legal personality. In our law it has
not yet authoritatively been decided how life after birth must be proved. Normally
evidence that the child breathed is accepted.. Any medical evidence by which life may be
proved should be admissible when the issue of whether a child obtained legal personality
3. Does the umbilical chord have to be severed for birth to be completed?
For birth to be completed it is not required that the umbilical chord be severed.
4. Explain how it is determined whether a child lived after birth.
In our law it has not yet been authoritatively decided how life must be proved after birth. For
purposes of criminal proceedings at which an accused is charged with the killing of a new born
child, the child is deemed to have been born alive if the child is proved to have breathed. Section
in CPA does not purport to set out material requirements for determining life after birth .
Courts will rely on medical evidence. Testting if a child has breathed after birth is not the only
test, - any medical evidence that can prove that there was life should be acceptable
5. Fill in the missing two words: For viability, a child must have reached such a stage of
development that an :
(i)existence
(ii)independent
of the mother’s body is possible
6. Summarise writer’s views/objections on viability not being a requirement for the beginning
of legal personality.
Writers objection to the requirement of viability is that it is a vague concept that could lead to
impossible problems in evidence

Study Unit 5.: Interests of the unborn child

1. Fill inn the missing words: Wherever a situation arises where it would be to the
advantage of the nasciturus if they had already been born, the law protects their
(i) Potential
(ii)Interests
By the implementation of the fiction that the nasciturus is regarded as having been born
at the time of their
(iii)conception
Whenever it is to their advantage. If it appears in a specific case that, had the nasciturus
already been born, they would have certain claims or rights, the legal position is kept in
(iv) abeyance
Until the unborn child does in fact become a person or until it becomes certain that no
person has developed from the nasciturus.

Downloaded by Katlego Rafapa (krafapa@gmail.com)

 lOMoARcPSD|6271730

2. List the two requirements for the application of the fiction

(i)Child must have been conceived at the time when the benefit would have accrued to
them
(ii) must subsequently be born alive
3. Write down an example of a situation where the application of the nasciturus fiction
will be to the advantage of only third parties
Advantage to a third person: unborn child would have been entitled to an inheritance had
they been born when the testator died. If child dies shortly after birth, the fiction will not
come into operation because the only person to benefit the child’s intestate heirs and not
the child themselves.
4. Write down an example of a situation where the application of the nasciturus fiction
will be to the advantage of both 3rd parties and the nasciturus
A parent is responsible for maintaining their child provided they are able to do so and the
child is incapable of supporting themselves . If an unborn is born alive and then inherits
an estate large enough to support themselves , their parents will not be liable for their
maintenance.. Thus the parents also benefit from the application of the fiction. In such
circumstances the fiction will be applied because the benefit that the parents derive flows
from the application of the fiction In favour of the nasciturus.
5. Distinguish between testate and intestate succession
Intestate succession refers to situations where the deceased died without leaving a valid
will, and testate succession – situations where the testator has died and left a valid will.
6. Which case contained a clause similar to “ I bequeath my estate to my children who are
alive at the time of my death”
Ex Parte Boedel Steenkamp
7. Summarise the court case (Facts, Legal Question, Court Decisions, Ratio Decidendi).

Ex Parte Boedel Steenkamp 1962 (3) SA 954 (O)

The facts of the case are as follows:

The testator left the residue of his estate to his daughter and to the first generation “wat by datum
van dood in die lewe is”. The testator’s daughter was pregnant at the time of his (the testator’s) death
and subsequently gave birth to Paul Johannes.

The executor to the estate sought a declaratory order on the issue of whether only the children born
at the time of the testator’s death would inherit or if Paul Johannes, born after the death of the
testator, would also be able to inherit.

Curator ad litem for Gerda and Daniel Johannes (the two children already born) held that the words
“wat by datum van dood in die lewe is” is sufficient enough and without ambiguity to exclude the
unborn child from the estate.

Curator ad litem for Paul Johannes was of the opposite opinion stating that there is no evidence that
the testator wished to exclude the unborn child from his will.

The legal questions are:

1. Does the nasciturus have the legal capacity to inherit?

2. Is Paul Johannes (in ventre matris) entitled to a share of the estate?

Judge De Villiers R held that the nasciturus should be able to inherit by means of the nasciturus fiction
subject to being born alive and it being to the advantage of the nasciturus. He further held that Paul

Downloaded by Katlego Rafapa (krafapa@gmail.com)

 lOMoARcPSD|6271730

Johannes is entitled to share in the estate of the testator in equal amounts to his mother, brother and
sister.

Judge De Villiers R referred to the decision of House of Lords in Elliot v Lord Joicey where the court held
that if the testator’s intentions are not clear, when words as “in lewe” or “gebore” are used in
conjunction with a specific time line and there is no other specific statement specifically excluding the
child in ventre matris it should be presumed that the testator had no intention of excluding the child in
ventre matris form his/her will.

8. Suppose a testator bequeaths his farm to his son B, subject to the provisio that the farm
must also be bequeathed to B’s eldest son upon B’s death, and after C’s death upon his
eldest son D.
8.1. What is such an institution called?
Fideicommissum
8.2. B is know as the…
fiduciarius
8.3. C and D are known as the…
fideicommissarii
9. Discuss maintenance and the nasciturus by summarising Chisolm v ERPM (Facts, legal
question, court decision. Ratio decidendi)
10. Summarise Shields v Shields (Facts, legal question, court decision, ratio decidendi)
11. Summarise Pinchin v Santam in the prescribed format. In about 1 to 2 pages.
12. Writers have different viewpoints on the applicability of the nasciturus fiction in the
field of delict. Summarise the viewpoints of
(i) Boberg
(ii) Joubert.
13. (a) At what moment does the legal subjectivity begin according to supporters of the (i)
nasciturus fiction and (ii) nasciturus rule?
(i) Supporters of the fiction accept that legal subjectivity only begins at birth, whilst
(ii) Supporters of the rule, - moment of conception
(b) Which writers support the application of (i) nasciturus fiction, (ii) nasciturus rule?
(i) Supporters of the fiction: Cronje and Heaton; Jordaan and Davel
(ii) Supporters of the rule: Van der Merwe and Van der Vyver and Joubert

Study unit 6: End of legal Personality

1. What procedure will the court follow after hearing the application for a common
law presumption of death order?
Return date is set on which the final order will be made . It is then ordered that all
interested parties (as determined by the court) should be given notice of the rule nisi
and thatit must also be published in the local press and the Government Gazette. Thus
ensuring ample opportunity is given to any interested parties to bring any further
relevant facts or possible objections before the order is finalised
2. Summarise Ex Parte Pieters 1993 (3) SA 379 (D)
The facts are as follows:
The applicant’s father disappeared in 1975. The applicant mother died and left a sum
of money to his (the applicant’s) father. The applicant applied for and order to either

Downloaded by Katlego Rafapa (krafapa@gmail.com)

 lOMoARcPSD|6271730

a) an order of presumption of death or b) and order compelling the Master of the High
Court to effect payment to him and his siblings, subject to them providing security.
There was no evidence that would indicate that the applicant’s father is possibly dead,
except his age (73). The court did not issue the presumption of death but authorised
the Master of the High Court to distribute the money equally between the applicant
and his siblings without the necessity of providing security.
The legal question:
Under what circumstances will the court grant an order of presumption of death?
The judgment:
Judge Alexander J held that no presumption of death will be ordered because the
applicant’s argument is not strong enough to order a presumption of death. The
Master is authorised to distribute the amount of R6148.14 equally between the
applicant and his siblings.
The reasoning:
The court held that, taking all the known information into account, the information is
not enough to presume the person in question as dead. Judge Alexander J referred
amongst other cases to Re Beaglehole and held that he knows of no rule which would
require to court to presume death only on the lapse of years.

3. Upon successful application for a Presumption of Death order , if X wants to

remarry, in terms of which Act may she apply to the court to dissolve the marriage?
Section 1 of the Dissolution of Marriages on Presumption of Death Act 23 of 1979 –
court which expresses a presumption of death order may at the request of the
remaining spouse, make an order dissolving the marriage as from a date determined
by the court.
4. Must a separate application be brought for the marriage to be dissolved?
Such an order can be made at the same time as the presumption is made or at anytime
thereafter, in other words, by separate application
5. What is the effect of such an order dissolving her marriage?
If such an order is made the marriage is deemed to be dissolved by death for all
purposes – legal consequences are therefore the same as in the case where the
marriage has actually been dissolved by death.
Such application can only be made by the remaining spouse and court has the
discretion to grant or refuse it
6. If a Presumption of Death order is granted under S18 of Inquests Act, is a separate
application necessary to dissolve the marriage? Refer to authority
Section 2 of the of Act 23 of 1979 automatically dissolves the marriage of the person
concerned. In this case no special application for the dissolution of the marriage needs
to be made. The marriage is deemed to have been dissolved by death as from the date
determined by the court
7. If an application for a presumption of death order has been denied. May the court
order that the missing person’s estate nonetheless be divided amongst their heirs?
Yes, on occasion courts have ordered that the heirs must provide security for return of
the property should the missing person reappear.

Downloaded by Katlego Rafapa (krafapa@gmail.com)