UNIVERSITY OF SOUTH AFRRICA

LAW OF PERSONS PVL 1501 ASSIGNMENT 01 FIRST SEMESTER 2012 SUBMITTED IN PARTIAL FULLFILLMENT TO THE REQUIREMENTS OF THE UNISA BACHELOR OF LAWS PROGRAMME ASSIGNMENT 01 FIRST SEMESTER 2012

NAME STUDENT NUMBER MODULE REGISTRATION PERIOD CODE UNIQUE NUMBER DUE DATE DEGREE PROGRAMME EXAM CENTER POSTAL ADRESS ZIMBABWE

OSCAR SIMUKAI JEMWA 4927-397-3 PVL 1501 LAW OF PERSONS ASSIGNMENT 0 FIRST SEMESTER 2012 382448 5 MARCH 2012 03492 BACHELOR OF LAWS HARARE EXHIBITION PAR 12466 UNIT N SEKE CHITUNGWIZA

OSCAR SIMUKAI JEMWA 4927-397-3 PVL 1501 LAW OF PERSONS ASSIGNMENT 1 SEMESTER 1 2012 UNIQUE NUMBER 382448 03492 BACHELOR OF LAWS EXAM CENTER HARARE EXHIBITION PARK

Question (a)
The problem here is whether X has commenced legal subjectivity. X is not a legal subject. In South African law, a single rule applies regarding the commencement of legal subjectivity in human beings. That is, to become a legal subject is defined by live birth. The term legal subject, means any entity that can have rights, duties and capacities. If a child has met the conditions of a live birth as below, they become a legal subject who may claim certain rights and privileges. The conditions for the commencement of legal personality are I. II. The full completion of birth complete separation between mother and the foetuss body. Please note that it is not a requirement for the Umbilical cord to be severed. The child must be live even for a short period after separation.

However, because X is still a foetus, X is yet to meet the requirements of a live birth in order to assume the legal subject status. X is therefore not a legal subject. Question (b) I. The question here is whether the babys birth can be registered under its mothers surname Baloyi. Indeed, X may be registered as a Baloyi. The law stipulates that a childs birth shall be registered under the mother unless there is a joint request by the parents effecting the use of the fathers surname in the event that a child is born of parents who have not entered into a marriage and are not each others civil union partners at the time of the childs conception, birth or at any interceding time. The question here is whether X may be registered under his fathers surname, Thompson who has not entered into a marriage with his mother Miss Baloyi. The parents of X may subject to meeting the criteria set register X under his fathers surname. It follows that the father must acknowledge paternity in writing in the presence of the person to whom the notice of birth is given and enter his particulars on the notice of birth. The birth of X may thus be registered under his fathers surname if he so wishes. The question here is whether a childs birth may be registered under a doublebarrel surname composite of the surnames of both mother and father. No provision is made by the Births and Deaths Registration act for a childs birth to be registered under a double-barrel surname comprising of both parents surnames. As a consequence, the birth of X may not be registered under Thompson Baloyi.

II.

III.

Question (c) The legal questions that come to mind are whether X has the legal capacity to inherit and if they are actually entitled to a share of the estate given that X was only a foetus at the time of the testators death. This is a case which requires application of testate succession and the Nasciturus fiction. Testate succession is when a person dies and leaves a valid will. The provisions of the valid will left by the deceased will be effected. Where the intention of the testator is unclear, as was in this case where Nomsa Baloyis father did not bequeath by name but by class, that is, his entire estate to his grandchildren in equal shares, the Nasciturus rule is applicable to an unborn child. The Nasciturus fiction has it that if a situation arises where they are potential interests at stake of an unborn child the law protects the interest of the nasciturus by employing the presumption (fiction) that the foetus is regarded as having been born at the time of conception whenever it is to his or her advantage. It follows the maxim nasciturus pro iam nato habetur quoties de commodo ieus agitur maxim. This fiction is applicable in matters of status and succession where the infants interests are likely to be affected.

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OSCAR SIMUKAI JEMWA 4927-397-3 PVL 1501 LAW OF PERSONS ASSIGNMENT 1 SEMESTER 1 2012 UNIQUE NUMBER 382448 03492 BACHELOR OF LAWS EXAM CENTER HARARE EXHIBITION PARK

Consequentially, X will be able to inherit from Nomsas father if they are subsequently born alive as was the decision passed by Judge De viler R in Exparte Boedel Stenkam 1962 where he referred to the decision of the house of Lords in Eliot v Lord Joicey. Question 2 Ex Parte Boedel Steenkamp 1962 (3) SA 954 (O) The facts of the case are as follows: The testator bequeathed the residue of his estate which was to devolve in equal shares to his daughter and children belonging to the first generation at the point of him passing away. The testators daughter was pregnant. Seven months subsequent to the testators death she 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 testators 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 existing siblings) held that the words wat by datum van dood in die lewe is is adequate, clear and concise enough to leave out the unborn child from inheritance.Curator ad litem for Paul Johannes was of the contrary view stating that there is no evidence that the testator wished to block 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? The Judgment 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 Johannes is entitled to share in the estate of the testator in equal amounts to his mother, brother and sister. The reasons for Judgment (rationes decidendi) A procreated but unborn child will be regarded as already born and will become an inheritant of an estate if it is subsequently born alive. The reason for confirming Paul Johannes entitlement to the estate was based on Judge De Villiers R referrence to the decision of House of Lords in Elliot v Lord Joicey where the court held that if the testators pronouncements are not by name but class, when words as in lewe or gebore are used together with a specific time line and there is no other specific exclusionary statement excluding the child in ventre matris it should be presumed that the testator had no intention of leaving out the child in ventre matris form his/her will.

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