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1. Mrs Smith, an expectant mother, was injured in a motor vehicle accident.
Her child was subsequently born with cerebral palsy. As a result of the
brain damage the child will never be able to take care of herself. The
accident was caused by the sole negligence of the driver of the other
motor vehicle.
(a) What do you understand by the nasciturus fiction? (3)
If a situation arises where it would have been to the advantage
of the nasciturus if he or she had already been born, the law
protects his or her potential interests. This is done by the
implementation of the fiction that the nasciturus is regarded as
having been born at the time of his or her conception
whenever his or her interests are at stake. If it appears on a
specific case that, had the nasciturus already been born, he or
she would have had certain claims or rights, the legal position
is kept in abeyance until the nasciturus does in fact become a
person, or until it becomes certain that no person has
developed from the nasciturus. If the child is indeed born
alive, he or she acquires that rights that have been kept in
abeyance.
(b) Name the two requirements for the operation of the nasciturus
fiction. (2)
- The fetus must already have been conceived at the time
when the benefit would have accrued to him or her.
- The child must subsequently be born alive.
(c) Can the nasciturus fiction be applied in this case? Discuss with
reference to authority. (5)
It is possible that somebody's negligence may cause injuries
to the nasciturus before birth. In Pinchin v Santam Insurance,
where the facts were similar to the question under discussion,
the court had to answer the question whether a person has an
action in respect of injury inflicted on him or her while he or
she was still a fetus in his or her mother's womb. In this case
the court concluded that a fetus, if negligently injured before
birth, may claim damages from the wrongful party.
, In Pinchin v Santam Insurance the claim was unsuccessful
since it was not proved that the cerebral palsy of the fetus had
been caused by the injury sustained by the mother. Should it
be proved that Mrs Smith's child's cerebral palsy is the result
of the injuries sustained by Mrs Smith during the accident, the
nasciturus fiction will be applicable to this case.
2. Mrs X has successfully applied for a presumption of death order with
regard to her husband who has been missing for 20 years. What will the
situation be if it becomes clear that Mr X did not die? Explain the position
in a few sentences. (5)
Since the presumption of death order is rebuttable, the court which
expressed the presumption can set aside its original order if, on the
basis of further evidence, it becomes clear that the missing person
did not in fact die. This can be done on the application of any
interested person or the missing person himself or herself. In such a
case he or she may bring an action for enrichment against those who
have been enriched at his or her expense as a result of the
presumption of his or her death.
3. Vambu, a citizen of Mozambique, is an illegal immigrant in South Africa.
He has lived and worked in Hillbrow for the past two years. He wants to
acquire a domicile of choice in Hillbrow. What effect does Vambu's status
as an illegal immigrant have on his capacity to acquire a domicile of
choice in Hillbrow? Advise him. (4)
The residence relied on for the acquisition of a domicile of choice
must be lawful. Illegal immigrants can therefore not acquire a
domicile of choice in South Africa even if they have the intention to
settle permanently because their intention is unlawful. Persons who
are deported from South Africa thus also loose their domicile in this
country even if they have the intention to return because their return
would be unlawful.
Where prohibited immigrants are, however, openly permitted by the
authorities to reside in a country, they may acquire a domicile of
choice in that country. In this case, Vambu will not be able to
acquire domicile in South Africa.
4. Mr and Mrs Nkosi are married. During their marriage, Mrs Nkosi has an
affair with Mr Skosana, as a result of which a child is born. With reference
to authority, advise Mr Nkosi fully on how he should go about to rebut the
presumption pater est quem nuptiae demonstrant. (16)
In terms of the maxim pater est quem nuptiae demonstrant Mr Nkosi
will be liable for the maintenance of the child as our law recognises
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