PVL1501 longer-questions-and-answers

LAW OF PERSONS LONGER QUESTIONS 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