There are two requirements for the commencement of legal personality:
- the birth must be fully complete, it is not necessary for the umbilical cord
to be
separated; and
- the child must live after separation at birth.
A Natural Person’s legal personality begins at BIRTH.
- Before a baby is born it is known as a foetus and as such is not a legal
subject but
is considered to form part of the mother. -
There are two requirements for the beginning of legal personality:
THE BIRTH MUST BE FULLY COMPLETED
This means that there must be a COMPLETE SEPARATION between the
body of
the mother and the foetus.
However, students are to note that it is not a requirement for the umbilical
cord to be
severed before the birth will be regarded as being completed.
THE CHILD MUST LIVE AFTER THE SEPARATION EVEN IF ONLY FOR A
SHORT PERIOD.
A foetus which is STILL BORN does not acquire legal personality.
A foetus which DIES DURING BIRTH also does not acquire legal personality.
It must LIVE for at least a short period after separation. It has not yet been
conclusively decided how life after birth is proved.
However, Section 239(1) of the Criminal Procedure Act 51 of 1977
provides that
at Criminal proceedings where an accused is charged with the killing of a
newly-
born child, the child shall be deemed to have been BORN ALIVE if it is
PROVED
THAT THE CHILD BREATHED.
The courts obviously rely on MEDICAL EVIDENCE for proof that the child
was born
alive. THE TEST TO DETERMINE WHETHER THE CHILD WAS BORN ALIVE IS
USUALLY WHETHER THE CHILD BREATHED.
This test involves cutting up the child's lungs into small pieces and placing
them in
water.
If the pieces float it is an indication that there is oxygen in the lungs and
therefore
that the child must have breathed.
There are also other forensic/pathological methods which can be used to
determine
whether a child was born alive or not.
In terms of Section 9 (1) of the Births and Deaths Registration Act No 51 of
1992
(South African Laws), anyone of the parents of a child born alive or in the
absence of
the parents, any legal guardian of such child shall within a period of 30
days give
notice of such birth to the Director-General or whoever is authorized to
record
such birth.
The section further goes to state that if notice of such birth is furnished
after the
expiry of 30 days the Director-General should be furnished with reasons
there of the
delay.
Birth shall only be registered if a surname and forename are assigned to
such
child.
A child who dies before notice of his birth is given shall not be registered.
- A Nasciturus is an unborn child, a foetus.
- It is an imaginary set of circumstances and a PRESUMPTION ARISES
which is not based on fact i.e. when applying the nasciturus fiction the
unborn child is regarded as a LIVING PERSON ALTHOUGH IT HAS NOT
YET BEEN BORN.
- The legal position is then kept in ABEYANCE until the nasciturus does in
fact become a PERSON OR It becomes certain that NO PERSON has
developed from the nasciturus.
- This has the result that the interests of the nasciturus are kept in
ABEYANCE
until that child is born and then at birth the child receives those interests.
- If the interest that is kept in abeyance is an inheritance, the division of
the
deceased estate from whom the nasciturus is to inherit, is delayed until
the
nasciturus is born.
- This means that none of the other beneficiaries may inherit until such
time as
it is established whether or not the foetus is born alive.
In the prescribed case of ex Parte Boedel Steenkamp -
The Testator left the residue of his estate to his daughter and her children
(who are alive at the time of my death).
- At the time of the Testator's death his daughter had two children.
- She was however expecting a third child who was later born alive.
- The courts had to consider the question whether this child who was later
born
alive could also share in the inheritance of the grandfather.
Judge De Villiers stated that "it is common cause that a child in its
mother's womb is presumed to be alive for the purposes of succession,
provided the child is subsequently born alive, AND that it is to the
advantage of the unborn child".
The difficulty with this particular case was the insertion of the words "who
are alive at the time of my death".
- If these words had not been inserted in the Will there would have been
no
problem with regard to the nasciturus inheriting once he had been born
alive.
- The question was, did these words rebut the presumption that the
Testator
also wished to benefit any children born later i.e. after his death.
- The judge held that these words did not rebut the presumption and that
the
3rd child who was subsequently born was entitled to inherit.
- MAINTENANCE Under certain circumstances the nasciturus fiction may
be used to grant a nasciturus a claim for loss of support(maintenance)
after his birth against a third person (i.e.apart from the parents).
- In Shields v Shields,
- The parents of an unborn child were getting divorced.
- As part of the divorce settlement, the parties agreed that the father
would not
be responsible for the child's maintenance after its birth. –
- The Court refused to incorporate this clause into the divorce order as it
held that: the mother could not waive her unborn child's right to claim
maintenance from the father and The agreement was contra bonos
mores (i.e. contrary to the legal convictions of the community).
- If a woman who is pregnant gets divorced from the father before the
child is
born, the court may incorporate a clause providing for the child's
maintenance
in the divorce order.
TERMINATION OF PREGNANCY
- Termination of pregnancy is not an instance where the foetus interests
are protected by the nasciturus fiction.
- The nasciturus fiction CANNOT be used because an ABORTED FOETUS
WILL NEVER BE BORN ALIVE and the application of the nasciturus fiction is
such that the legal position is held in abeyance until such time as a
PERSON
IS BORN OR UNTIL IT IS CLEAR THAT NO PERSON WILL BE BORN
ALIVE.
Circumstances in which a pregnancy may be terminated.
- This is regulated by the Choice on Termination of Pregnancy Act 92 of
1996.
- This act has legalized abortion in certain circumstances.
- The Act sets out the different types of consent which are required
during each stage.
- It is crucial that you read and understand the act.
Pre Natal Injury
- The question arises whether a foetus which is harmed whist still in the
womb as a result of the culpable act of a 3rd party as a result of a delict
and is later born with a Physical OR Brain disability should have an
action for damages.
- This question came before our courts in the case of Pinchin v Santam
Insurance Company Limited
In order for the minor to apply for the remedy, he/she must be duly
assisted by a
guardian/ alternatively the guardian may apply on the minors behalf.
A curator ad litem may be appointed to act on the minors behalf and
institute the
remedy.
The minor may also apply for the remedy onced he/she has attained
majority. The
claim based on restitutio prescribes within 3 years of the minor attaining
majority The
concept of unjustified enrichment is quite simple.
Person A's estate is enriched (increases) while person B's estate is
impoverished
(decreases); The increase in A is due to the decrease in B and there is no
legal
basis for the transfer from A to B.
