- Patrimonial Interest
(a) Succession
Nasciturus fiction is applied in the field of succession in South African Law. There is distinction between intestate and testate succession.
- Intestate succession
When one fails to regulate the devolution of her property in a valid will, her estate devolves in terms of the law of Intestate Succession. According to the Intestate succession rules a person can only inherit if she is alive at the time of the estate falls open (delatio). It’s a common cause that delatio takes place at the moment the deceased dies.
- Testate Succession
If a testator leaves property in a valid will. If the testator’s intention is clear regarding whether the unborn child should inherit or not, his intentions is carried out.
The latter was affirmed in the decision in EX PARTE BOEDEL SKEENSKAMP.
There are also options here like; fideicommissum, fiduciarius and fideicommissarii.
(b). Maintenance
If one parent of nasciturus is killed as a result of someone else’s delict the child can, after birth, institute an action for damages as a result of the loss of support against the person who killed her parent. This was decided in the case of CHISHOLM V EAST RAND PROPRIETARY MINES LTD 1909 TH 297
In ventre matris is provided when the child’s mother was killed while the child was still in her mother’s womb.
In SHIELDS V SHIELDS 1946 CPD 242 The parents of an unborn child agreed that the father would not be responsible for the Maintenance of his child after its birth. They wanted this agreement Incorporated for the divorce order. The court held that a mother could not enter into such agreement on behalf of her child and that agreement was contra bonos mores. It was consequently not made an order of court.
Read part 3 of the series on “Custody” on next week’s edition of Pondoland Times.
Bongani writes under his own personal capacity. All views expressed within the content are solely the author’s and do not reflect the opinions and beliefs of the Pondoland Times.
