PVL2602 Assignment 1 Semester 1
2022
PVL2602
ASSIGNMENT 1 SEMESTER 1 2022
UNIQUE NUMBER:
, Question 1
Identifying the problem
Because this question relates to the problems of intestate succession and therefore
requires us to determine how succession should take place in cases where a testator
fails to regulate succession on death by way of a valid will.
Legal rules of the law applicable to the issue
If a black person who maintained an African customary lifestyle by entering into an
African customary marriage died after 27 April 1994 but before the RCLSA came into
operation, his or her estate would devolve according to the Intestate Succession Act
as modified by the Constitutional Court in Bhe v Magistrate, Khayelitsha. In this case
Zwane died on 26 November 2021 and married according to customary law and
therefore his estate will be devolve according to the Intestate Succession Act as
modified by the Bhe case.
The order of succession under the Intestate Succession Act read with het RCLSA
Rule 3 (Section 1(1)(c): deceased is survived by spouse(s) and descendants
➢ Where the deceased is survived by one spouse as well as a descendant or
descendants, the surviving spouse inherits whichever is the greater of either a child's
portion (also called a child's share) or an amount fixed from time to time by the Minister
of Justice and Constitutional Development (the amount is presently R250 000). The
descendants of the deceased inherit the residue (if any) of the intestate estate.
➢ A child's portion is calculated by dividing the deceased's estate by the number of
children who have either survived him or her, or who have predeceased him or her but
have left descendants of their own, plus the number of surviving spouses.
➢ An unborn child (referred to as a nasciturus in Latin) is capable of inheriting provided
that:
1. The child must have been conceived at the time of the devolution of the benefit.
2. The inheritance has to be to the advantage of the unborn child.
2022
PVL2602
ASSIGNMENT 1 SEMESTER 1 2022
UNIQUE NUMBER:
, Question 1
Identifying the problem
Because this question relates to the problems of intestate succession and therefore
requires us to determine how succession should take place in cases where a testator
fails to regulate succession on death by way of a valid will.
Legal rules of the law applicable to the issue
If a black person who maintained an African customary lifestyle by entering into an
African customary marriage died after 27 April 1994 but before the RCLSA came into
operation, his or her estate would devolve according to the Intestate Succession Act
as modified by the Constitutional Court in Bhe v Magistrate, Khayelitsha. In this case
Zwane died on 26 November 2021 and married according to customary law and
therefore his estate will be devolve according to the Intestate Succession Act as
modified by the Bhe case.
The order of succession under the Intestate Succession Act read with het RCLSA
Rule 3 (Section 1(1)(c): deceased is survived by spouse(s) and descendants
➢ Where the deceased is survived by one spouse as well as a descendant or
descendants, the surviving spouse inherits whichever is the greater of either a child's
portion (also called a child's share) or an amount fixed from time to time by the Minister
of Justice and Constitutional Development (the amount is presently R250 000). The
descendants of the deceased inherit the residue (if any) of the intestate estate.
➢ A child's portion is calculated by dividing the deceased's estate by the number of
children who have either survived him or her, or who have predeceased him or her but
have left descendants of their own, plus the number of surviving spouses.
➢ An unborn child (referred to as a nasciturus in Latin) is capable of inheriting provided
that:
1. The child must have been conceived at the time of the devolution of the benefit.
2. The inheritance has to be to the advantage of the unborn child.
