Question 1 (10 marks)

Answer the following question:

Zarkob’s will contains the following clause: “My daughter Ruth inherits R500 000 and her children who are alive at the date of my death, each inherits R100 000.

Zarkob dies on 29 September 2022. Ruth’s third child Alex is born on 21 October 2022. Ruth has two other children Samantha and Jaydee.

1.1 Can the nasciturus fiction be applied in this case? Discuss with reference to case law.

Question 2 (15 marks)

Answer the following question(s):

2.1 Deliwe is a five-year-old extra-marital child. Her mother lives in Gqeberha, and her father in Mbombela. Deliwe lives with her father. Where is Deliwe? Discuss briefly and refer to the relevant legislation. (8)

2.2 Vihaan, who has been domiciled in South Africa for the past 28 years, leaves the country and intends not to return. He spends three weeks in Canada whilst deciding where to settle permanently. Where will he be domiciled during this period? Explain your answer briefly and refer to the relevant legislation.(7)

Question 3 (11 marks)

Read the following scenario and answer the questions that follow:

Mr. and Mrs. Evans are a married couple from Pretoria. During their holiday in Cape Town, Mrs. Evans went missing during a hike on Table Mountain. Ten years have passed since Mrs. Evans went missing. All searches were unsuccessful. Mr. Evans, meanwhile, has fallen in love with Candice and would like to marry her. He approaches the High Court of South Africa (Gauteng, Pretoria) and applies for an order presuming the death of Mrs. Evans.
Answer the following questions:

3.1 Did Mr. Evans approach the correct court? Explain your answer in short. (4)

3.2 Is it necessary for Mr. Evans to convince the court that Mrs. Evans is dead? Explain the burden of proof to Mr. Evans. (3)

3.3 Which factors are considered by the court in an application for a presumption of death order? (4)

Question 4 (4 marks)

Answer the following question(s):

4.1 Benjamin, a South African citizen, studies at the University of Cambridge and marries Catherine, an English citizen, without entering into an antenuptial contract. Four years after their marriage, they ask you for advice on whether their marriage is in or out of community of property. In terms of South African law, their marriage is in community of property and in terms of English law, their marriage is out of community of property. Advise them on which legal system applies. Explain your answer.

Question 5 (10 marks)

Indicate whether the following statements are TRUE or FALSE and provide a
REASON for each of your answers:

5.1 A juristic person has legal existence independent from its members. A juristic person acquires rights, duties and capacities and acts on its own. (2)
5.2 In South African law, the third requirement for birth, is viability. This also means that the child must be viable at birth before such child can be considered as a legal subject. (2)
5.3 There is a close correlation between capacity to act and legal capacity. (2)
5.4 Commercial surrogacy is allowed in terms of the Children’s Act 38 of 2005 provided that the surrogate mother enter into the agreement for altruistic or selfless reasons only. (2)
5.5 A marriage between a man suffering from a mental condition (hearing imaginary voices), but who understands the nature of the juristic act (i.e., the wedding) and a woman, is valid. (2)

Answers to Above Questions on Law of Persons

Answer 1: In order to understand the application of nasciturus fiction, it is important to understand this concept. Nasciturus fiction is a legal doctrine that indicates that a person is regarded as already born for the purpose of inheritance if they are born at a later date and meet certain conditions. In the given case scenario of Zarkob, the question of whether this nasciturus doctrine is applicable or not arises because Alex is the third child of Zarkob born after he dies.