LAW OF PERSONS IN
SOUTH AFRICA
Ancillary Questions
Chapter 3: The beginning of legal
subjectivity
Questions
1. When does legal subjectivity commence?
2. Name the two requirements for birth to be regarded as the moment of origin of legal
subjectivity.
3. Is it required that the umbilical cord must have been cut in order for birth to be regarded as the
moment when legal subjectivity begins?
4. Is legal subjectivity acquired by a stillborn foetus?
5. How will it be determined whether the child lived after birth?
6. The Births and Deaths Registration Act 51 of 1992 creates an obligation to register the birth of a
child _________ __________ (fill in the two missing words).
7. What do you understand by the concept “viability”? Does a child have to be viable at birth in
order to be considered a legal subject?
8. Briefly explain the operation of the nasciturus fiction.
9. List the three requirements for the operation of the nasciturus fiction.
10. In Shields v Shields 1946 CPD 242 divorcing parents wanted to incorporate into their divorce
order a settlement agreement which provided that the child’s father would not be responsible
for the child’s maintenance after birth. The court refused to do so, stating that the agreement
was contrary to good morals.
Chapter 3: The beginning of legal subjectivity
Ancillary Questions
Do you think that this case is an example of the application of the nasciturus fiction? Give
reasons for your answer.
11. Distinguish between testate and intestate succession.
12.
Mr Mokoena’s will contains the following clause:
“My son, Simon, inherits R100 000 and his children who are alive at the date of my death, each
inherits R50 000.”
Mr Mokoena died on 20 March 2011. At the time, Simon had two children, Sarah and Anna.
Simon’s third child, James, was born on 1 April 2011. Who will inherit from Mr Mokoena?
Explain your answer with reference to authority.
13. Mr Skosana leaves his estate to his grandchildren Thabo, Kwena and Otishe. Thandi, who had
already been conceived at the time Mr Skosana’s death, is born after his death. Will she inherit?
14. Mrs van der Berg leaves her estate to her son and her son’s children. At the time of Mrs van der
Berg’s death, her daughter has two children, Stefan and Ruan, and is expecting a third, Mandi.
Will Mandi share in the inheritance if she is born alive, along with her mother and siblings? Refer
to authority for your answer.
15. Jacob’s pregnant wife, Susan, was involved in a fatal car accident that led to the premature birth
of his daughter Zanele. Zanele was found to be mentally ill due to the injuries sustained by her
mother during the accident. Can Jacob institute an action on behalf of Zanele for damages due
to the prenatal injuries sustained by her? If so, on what basis should the action be instituted?
Discuss with reference to authority.
16. Suppose the will of A contains a clause to the effect that, upon A’s death, his son B inherits the
family farm and that, upon B’s death, B’s eldest son (who will for the sake of convenience be
called C) C inherits the farm.
a) What is this institution called?
b) In this example B is called the ____________ and C the _____________ (fill in the missing
words).
c) Suppose further that, while B is the owner, a developer offers him a very large amount of
money for the farm. The price that is offered for the farm is such that it would be
advantageous to sell. How can the interests of future fideicommissarii be protected?
Refer to authority for your answer.
17. The Sterilisation Act 44 of 1998 permits the voluntary sterilisation of any person who has
reached the age of ____ years and is capable of consenting (fill in the missing age).
18. Under which circumstances may persons under the age listed in question 15 above be sterilised?
Chapter 3: The beginning of legal subjectivity
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19. Discuss the provisions of the Sterilisation Act that regulate the sterilisation of persons who are
incapable of consenting, or incompetent to consent.
20. Who may terminate a pregnancy during the first 12 weeks of the gestation period? Refer to
authority for your answer.
21. Who may terminate a pregnancy after the 12th week of the gestation period? Refer to authority
for your answer.
22. Under which circumstances may a pregnancy be terminated from the 13th to the 20th week of
the gestation period? Refer to authority for your answer.
23. Under which circumstances may a pregnancy be terminated after the 20th week of the gestation
period? Refer to authority for your answer.
24. Who must consent to the termination of the pregnancy of a pregnant minor? Refer to authority
for your answer.
25. In __________________________________________ the Constitutional Court was asked to
decide whether the Choice on Termination of Pregnancy Act 92 of 1996 is in conflict with section
11 of the Constitution of the Republic of South Africa, 1996 (the right to life). (write down the
name of the decision).
26. Who is obliged to register the birth of a child born alive? Refer to authority for your answer.
27. Under which parent’s surname is notice of birth given of children born of parents who were
married to each other at the time of the child’s birth? Would your answer have been different of
the parents entered into a customary or religious marriage? Refer to authority for your answer.
28. Discuss the provisions of the Births and Deaths Registration Act 51 of 1992 that deal with the
registration of the birth of a child born of parents who are neither married to each other, nor
civil union partners at the time of the child’s conception, birth, or any intervening time.
29. Under whose surname is a child registered who is born as a result of the artificial fertilisation of
a woman in a same-sex union that falls outside the scope of the Civil Union Act 17 of 2006?
30. Discuss the provisions of the Births and Deaths Registration Act that deal with the change of a
minor’s surname.
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Answers
1. Legal subjectivity commences at birth (para 3.1).
2. The two requirements for birth to be regarded as the moment of origin of legal subjectivity are
dealt with in para 3.1.
3. It is not required that the umbilical cord must have been cut in order for birth to be regarded as
the moment when legal subjectivity begins (para 3.1).
4. A stillborn foetus does not acquire legal subjectivity (para 3.1).
5. Medical evidence will be used to prove whether the child lived for a period of time. To
determine whether a child has breathed, the hydrostatic test is used. This entails that the child’s
lungs are cut into small pieces and placed in water. If the pieces float, it can be accepted that
oxygen has been absorbed by the lungs, and that the child did breathe (para 3.1).
6. The missing words are born alive (para 3.1).
7. Viability means that the child must have reached such a stage of development within the
mother’s body that he or she could live independently, with or without aid, but without being
fed from the mother’s bloodstream. A child does not have to be viable at birth in order to be
considered a legal subject (para 3.2).
8. The operation of the nasciturus fiction is explained in para 3.2.1.1.
9. See para 3.2.1.2 for a discussion of the three requirements for the operation of the nasciturus
fiction.
10. Heaton points out that the decision in Shields v Shields is not a true application of the nasciturus
fiction, but simply a common-sense approach to post-divorce maintenance based on
expediency. She argues that if post-divorce child maintenance were based on the nasciturus
fiction, the child would have to be regarded as having already been born at the time of his or her
conception, and would therefore be entitled to maintenance from that date. As this would
entitle the unborn child to maintenance for a longer period than a child whose parents divorced
on the day of his or her birth, the equality clause in the Bill of Rights would be unjustifiably
contravened.
11. The difference between testate and intestate succession is dealt with in para 3.2.1.3.2 (i).
12. In this question, students had to first of all explain the operation and requirements of the
nasciturus fiction. They then had to explain the concept of “testate succession”, and indicate
that in the case of testate succession the testator’s intention should be carried out. As the facts
of the question are similar to the decision in Ex parte Boedel Steenkamp 1962 (3) SA 954 (O), this
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decision should have been discussed, along with section 2D(1)(c) of the Wills Act 7 of 1953 (para
3.2.3.1.2 (iii)).
13. Thandi will not inherit. Only the heirs specifically mentioned in the will, will inherit (para
3.2.3.1.2 (iii)).
14. Mandi will share in the inheritance if she is born alive, along with her mother and siblings. This is
a result of the rebuttable presumption created in section 2D(1)(c) of the Wills Act (para 3.2.3.1.2
(iii)).
15. This question calls for an explanation of the operation and requirements of the nasciturus
fiction, followed by a discussion of the decision in Road Accident Fund v Mtati 2005 (6) SA 215
(SCA) (also reported as Road Accident Fund v M obo M [2005] 3 All SA 340 (SCA). The conclusion
should be that Jacob can institute an action on behalf of Zanele for damages due to the prenatal
injuries sustained by her, and that this action should be instituted in terms of the ordinary
principles of the law of delict.
16. Answers as follows:
a) This institution is called a fideicommissum (para 3.2.2.2.1).
b) B is called a fiduciarius and C is called a fideicommissarius (para 3.2.2.2.1).
c) In terms of section 2(1) of the Immovable Property (Removal or Modification of Restrictions)
Act 94 of 1965, B can approach the court to remove or modify the fideicommissum. The
court will see to it that the interests of C (and even further fideicommissarii) are protected
by, for example, giving specific instructions regarding the investment of the proceeds of the
sale of the farm (para 3.2.2.2.1).
17. The relevant age is 18 years (para 3.3).
18. The circumstances under which persons under the age of 18 years may be sterilised are
discussed in para 3.3.
19. The provisions of the Sterilisation Act that regulate the sterilisation of persons who are incapable
of consenting, or incompetent to consent, are dealt with in para 3.3.
20. During the first 12 weeks of the gestation period, the termination may be carried out by a
medical practitioner, a registered midwife or a registered nurse who has completed the
prescribed training course (Choice on Termination of Pregnancy Act 92 of 1996 s 2(2)) (para
3.4.2).
21. After the twelfth week of the gestation period, only a medical practitioner may perform a
termination of pregnancy (Choice on Termination of Pregnancy Act 92 of 1996 s 2(2)) (para
3.4.2).
22. See para 3.4.2 in this regard.
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23. The circumstances under which a pregnancy may be terminated after the 20th week of the
gestation period are dealt with in para 3.4.2.
24. In the case of a pregnant minor, a medical practitioner, registered midwife or registered nurse
must advise such minor to consult with her parents, guardian, family members or friends before
the pregnancy is terminated. The termination of the pregnancy may, however, not be denied if
the minor decides not to consult with any of these people (Choice on Termination of Pregnancy
Act 5(3)) (para 3.4.3).
25. The relevant decision is Christian Lawyers Association of South Africa v The Minister of Health
1998 (11) BCLR 1434 (T); 1998 (4) SA 1113 (T) (para 3.4.4).
26. The duty to register a birth rests on the child’s parents. If neither parent is able to give notice,
notice must be given by the person who has charge of the child, or the person requested to do
so by the person having charge of the child (Births and Deaths Registration Act 51 of 1992 s
9(1)). In the case of abandoned children, notice is given by a social worker or authorised officer
(Births and Deaths Registration Act s 12) (para 3.5).
27. Notice of the birth of children born to parents who were married to each other at the time of
the child’s conception, birth, or any intervening time is given under the surname of either parent
or both parents’ names joined together as a double-barrel surname (Births and Deaths
Registration Act s 9(2) read with s 1(1)). This applies regardless of whether the child’s parents
entered into a civil, customary or religious marriage (Births and Deaths Registration Act s 1(2)(a);
Recognition of Customary Marriages Act 120 of 1998 s 2(1) & 2(2)) (para 3.5).
28. The relevant provisions are discussed in para 3.5.
29. In the case of a child born as a result of the artificial fertilisation of a woman in a same-sex union
that falls outside the scope of the Civil Union Act 17 of 2006, section 40 of the Civil Union Act
applies. As a result, the child is afforded the status of a “legitimate” child if his or her birth
mother was married, but not if she was a party to a same-sex life partnership.
Students may point out that this provision is subject to the same constitutional attack as section
5 of the Children’s Status Act. However, like Heaton, they can point out that it might be argued
that because same-sex couples now have the option of entering into a legally recognised civil
union, their fundamental rights and those of their children born as a result of artificial
fertilisation are not infringed by section 40 of the Children’s Act, or that this infringement is
justified by the couple’s choice not to enter into a civil union.
30. See para 3.5 in this regard.
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