PVL1501: ASSIGNMENT 1

GENERAL COMMENTS

Every student received personalised feedback on their marked assignments. The aim of
this general feedback is to indicate what the markers picked up during the marking
process, and to provide students with information that may assist them with their
preparation for the examination. Although the format of the examination is different, the
principles are valuable and should be taken note of. Some of the feedback might also be
of value going forward.

Question 1
(a)
This question was answered reasonably well.
(b)
Many students recognised that this question deals with the nasciturus fiction, but they
failed to apply this to the facts correctly. They indicated that in terms of the fiction the
unborn child may inherit if she is born alive, without taking into account the fact that the
child died shortly after birth, thus resulting in only the intestate heirs benefiting.
Many students referred to Pinchin v Santam Insurance. These students probably had
outdated study material and were not aware of the judgment in Road Accident Fund v
Mtati.
Many students discussed intestate succession instead of the nasciturus fiction. Your
answers have to be based on the study material for the specific module.
Some students said that effect had to be given to the provisions of the will (testate
succession). Clearly there could not have been a will.
Some students referred to maintenance. They indicated that if a child inherits an estate
large enough to support himself or herself, the parents will not be liable for his or her
maintenance. Always read the question carefully and make sure that you understand
what has been asked. The question here was whether the child would be able to inherit.

Question 2
In order to get two marks, a student had to provide authority. Authority is either a case or
legislation. Many students did not provide authority, or they gave a reason instead of
authority.
Some students misunderstood the judgment (Road Accident Fund v Mtati). Their
argument was that because the ordinary rules of law of delict should be used to determine
whether the child has a claim and not the nasciturus fiction, the mother would not be able
to lodge a claim. This is incorrect. Please note that the court in Road Accident Fund v
Mtati held that the rules of delict (not the nasciturus fiction) apply in a case of pre-natal
injury.
Some of the students did not understand that although a natural person’s legal personality
begins at birth, the interests of an unborn child are protected under certain circumstances.

Question 3
(a)
Most students struggled with this question. Many focused on the parents’ consent without
considering the facts of the question (that her pregnancy was 19 weeks). Most indicated
that Dr Coleman may terminate the pregnancy. They explained that termination of the
pregnancy could not be denied if Katlego decided not to consult her parents. Although
this is true, they failed to apply the facts. Katlego was 19 weeks pregnant. At this stage,
termination could not be performed at her request. In terms of the Choice on Termination
of Pregnancy Act Dr Coleman had to be of the opinion that one of the circumstances
mentioned in section 2(1)(b) is present. As this was not the case, the termination could
not be performed.
(b)
The facts mentioned in (a) above have now changed (rape is a circumstance covered in
section 2(1)(b)). Under these circumstances the pregnancy could be terminated. Most
students understood this question, but many failed to mention the reason.
(c)
This question was answered fairly well. Some students misunderstood and discussed the
nasciturus fiction, while others did not identify the correct section of the Constitution.
Some did not read properly – it was about whether a foetus has constitutional rights.
As authority for their answer, some students referred to Christian League of Southern
Africa v Rall. This case dealt with the appointment of a curator ad litem for an unborn
child, whereas the question and the relevant case (Christian Lawyers Association of
South Africa v The Minister of Health) dealt with the termination of a pregnancy.

Question 4

Many students do not seem to understand domicile. For both (a) and (b) some students
indicated that the domicile of origin revives. Please note that a person’s domicile of origin
does not revive. Someone can acquire a domicile of choice at the same place as his/her
domicile of origin, or the law can assign a domicile to someone at the same place as
his/her domicile of origin, but that does not mean that the domicile of origin revives.
As authority, some students referred to the Domicile Act. This Act regulates domicile, but
authority has to be specific to the facts of a question.
(a)
Many students failed to take into account what was held in Nefler v Nefler (your authority
for this answer). It was held that a prisoner who has been imprisoned for life automatically
acquires a domicile of choice in prison.
(b)
Students who indicated that a mentally incapacitated person follows the domicile of their
curator, or that a mentally incapacitated person retains the domicile she had when she
became mentally incapacitated did not consult the current study material.
A mentally incapacitated person is domiciled at the place with which they are most closely
connected. Many students do not understand what ’most closely connected’ means.
Some said that Patricia is most closely connected with the parents and reached a
conclusion that Patricia’s domicile is East London, where the parents live. The concept of
‘closely connected’ relates to a place that they are most closely connected to, not a
person that they are most closely connected to.

General comments:
When a “yes” or “no” question is asked, make sure you answer it by saying either “yes”
or “no”. If you only discuss it without answering the question, you are losing marks for
something you probably know.
When authority is required, it refers to either a case or legislation. The format is very
important:
• Make sure that the reference is complete
• Case names are in italics, while the reference is not
• Case names and Acts start with capital letters
When answering a question, make sure you understand what is asked, and that you cover
everything required.
Always look at the mark allocation before you answer a question. A 2-mark answer should
not be half a page long for example, while the answer to a 4-mark question has to be
more than one or two sentences.