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G U R U M AT E R I A L – L T O N K I N
RESOURCES

TEXTBOOK
Barratt A., Domingo W., Mahler-Coetzee J.D., Amien W, Denson R., Olivier M., Osman F.,
Schoeman H. and Singh P.P. 2017. Law of Persons and the Family. Second edition. Pearson South
Africa (Pty) Ltd, Cape Town
 Theme 1: Birth and
LU 2 - its legal significance
BEGINNING OF
LEGAL
PERSONALITY
Theme 1: Birth and
its legal significance
 LO1: Discuss the requirements for the beginning of legal personality for
Discuss natural persons;

Explain LO2: Explain what is meant by “birth” as it applies in South African law;

THEME 1: Discuss LO3: Discuss the requirements for the beginning of legal personality for

BIRTH AND ITS

juristic persons;

LEGAL Explain LO4: Explain the consequences for the acquisition of legal personality;

SIGNIFICANCE Explain LO5: Explain how birth is proved;

Describe LO6: Describe how paternity is proved;

Explain LO7: Explain the importance of registration; and

LO8: Explain the importance of the naming of legal persons and the
Explain changing of legal names.
THINK ABOUT THIS…
LO1: DISCUSS THE REQUIREMENTS FOR THE
BEGINNING OF LEGAL PERSONALITY FOR
NATURAL PERSONS
• Live birth = person
• Foetus is not a person
LO2: EXPLAIN Birth means LIVING BIRTH
WHAT IS
MEANT BY The foetus should be born alive

“BIRTH” AS The foetus must be separated from the

IT APPLIES mother (ambilical cord can be intact)

IN SOUTH The child should have live independently

AFRICAN
LAW; Even if only alive for a second
Legal personality Example: Company
starts at is registered with
registration CIPC

LO3: DISCUSS THE REQUIREMENTS FOR THE BEGINNING OF

LEGAL PERSONALITY FOR JURISTIC PERSONS
LO4: EXPLAIN THE CONSEQUENCES FOR THE ACQUISITION
OF LEGAL PERSONALITY

RIGHTS DUTIES CAPACITIES BECOME A LEGAL

SUBJECT = PERSON
 Live birth

Separated from mother

LO5: EXPLAIN Breathed / cried / any sign of life

HOW BIRTH IS
PROVED Medical evidence used during
autopsy to prove live birth:
• Hydrostatic test – determine the
presence of oxygen in the lungs (air
bubble in water)
• Objective: physical sign of life
LO6: DESCRIBE HOW PATERNITY IS
PROVED
Divorces and marries soon after – who is 1. MEANS?
the father? Latin term
The second husband because of The father is who the marriage indicates

‘Pater est quem nuptiae

demonstrant’
3. How is it disproved?
Sterility 2. What is the presumption?
Impotence The husband is the father
No intercourse over period of probable conception
DNA / blood test
Rebuttable – can show evidence to disprove
IMPORTANT INFO!

• A presumption is something that the law will deem to be true unless evidence is produced that
shows that the presumption is false.
 Births and Deaths Registration Act
• It is proof that a natural person exists
LO7: EXPL AIN
THE • Child must be registered within 30 days after
IMPORTANCE birth
OF
REGISTRATION • By parents or guardians
• Married parents: either may register
• Unmarried parents: mother must register
• Registered at the Department of Home Affairs
LO8: EXPLAIN THE IMPORTANCE OF THE
NAMING OF LEGAL PERSONS AND THE
CHANGING OF LEGAL NAMES.
• Child must have a name and surname
• Married parents: either surname or double barrel
• Unmarried parents: mother’s surname or can consent to father’s
• Child has a right to a name in terms of the Constitution
• Has social, religious and cultural importance
• Legal identifying characteristic
• Legal identity
• Changes are regulated by Births and Deaths Registration Act
LO9: Discuss the origins and rationale behind the nasciturus

THEME 2:
fiction;

ORIGIN AND
APPLICATION
LO10: Discuss the requirements for the operation of the
nasciturus fiction;

OF THE
LO11: Discuss how the nasciturus fiction was applied in the case
of Ex parte Boedel Steenkamp 1962 3 SA 954 (O); NASCITURUS
FICTION
LO12: With reference to the cases of Pinchin v Santam Insurance
Co Ltd 1963 2 SA 254 (W) and Road Accident Fund v Mtati 2005
6 SA 215 (SCA), discuss whether the application of the nasciturus
fiction can be extended to the Law of Delict.
 ROOTS FOUND WHERE?
LAW OF SUCCESSION

WHAT DOES THE ADAGE MEAN?

WHERE THE FOETUS WOULD HAVE BEEN
ADVATAGED IF ALIVE AT DEATH, THE REQUIREMENTS:
INTERESTS ARE KEPT OPEN UNTIL BIRTH MUST BE TO ADVANTAGE OF UNBORN
OF CHILD
MUST BE BORN ALIVE
WE PRETEND THE FOETUS IS ALREADY A
BABY

NASCITURUS
ADAGE

WHEN DOES LEGAL PERSONALITY BEGIN?

LIVE BIRTH
SEPERATED FROM MOTHER DOES IT APPLY TO LAW OF DELICT?
UMBILICORD DOES NOT HAVE TO BE CUT NO!!!!
LIVED INDEPENDENTLY CAN MOTHER STILL CLAIM FOR DAMAGE?
DOESN’T MATTER IF MOTHER IS DEAD OR ALIVE YES - DELICT
 What is a
Does legal “nasciturus”
LO9: DISCUSS subjectivity always
• = one who is to be
start at birth? YES!
THE ORIGINS born

AND As legal subject a Sometimes in

RATIONALE person enjoys Private law:
BEHIND THE protection of the
law.
Unborn must also
be protected.
NASCITURUS
FICTION Protection was
already granted to
unborn in Roman
law.
 Origin
▪ Was applied in Roman-Dutch law

THE INTEREST OF ▪ To understand the implication in South African law, we

THE UNBORN need to distinguish between intestate and testate law of
NASCITURUS succession.

ADAGE
▪ Intestate: deceased left no will.

▪ Testate: deceased did indeed leave a will.

 Rule of law:
– Benefit accrues to the heir on the date on
which the testator dies
– Not the date of will – Testamentary Bequests
THE INTEREST OF
– Heir will only benefit if he is alive at the time
THE UNBORN the estate falls open – death of testator
NASCITURUS (delatio)
ADAGE – If not yet born – cant be alive at delatio
– Normal rules – nasciturus cant benefit
intestate or testate
 Application:
▪ According to normal rules of law of succession, nasciturus
cannot inherit.

▪ THIS IS WHERE ADAGE APPLIES!

THE INTEREST OF ▪ If conception has already taken place (delatio takes place after
conception), the interests of the nasciturus are kept in
THE UNBORN abeyance.
NASCITURUS
ADAGE ▪ Division of the estate is thus postponed until legal technical
birth of nasciturus.

▪ Born alive – he/she will share in the estate as if he/she were

alive at time of delatio.
 Application and the law of Testate Succession:
▪ Governed by section 4 of the Law of Succession
Amendment Act which amended the Wills Act.

THE INTEREST OF
▪ Rebuttable presumption: Testator wants to benefit his
THE UNBORN children who have already been conceived at the time of
NASCITURUS his/her death.
ADAGE
▪ Contrary intention must be made clear in will.
LO10: DISCUSS THE REQUIREMENTS FOR THE
OPERATION OF THE NASCITURUS FICTION

• Nasciturus pro iam nato habetur quotiens de

commodo eius agitur:

1. If it is to the advantage of the unborn,

2. He/she is deemed to have already been born, and
3. His/her interests are kept open until birth.
LO10: DISCUSS THE REQUIREMENTS FOR THE
OPERATION OF THE NASCITURUS FICTION
LO11: DISCUSS HOW THE NASCITURUS FICTION WAS APPLIED IN THE
CASE OF EX PARTE BOEDEL STEENKAMP 1962 3 SA 954 (O ) – NB!
RULE OF LAW AND APPLICATION CASE

• Benefit accrues to the heir on the date on which the FACTS:

testator dies • A testator provided that his daughter “and her children
• Not the date of will – Testamentary Bequests already living at the time of his death” should inherit his
assets. At death (delatio): daughter had two children and
• Heir will only benefit if he is alive at the time the pregnant with third. Third child (a son) later born alive.
estate falls open – death of testator (delatio) Executor applied for an declaratory order on whether only
• If not yet born – cant be alive at delatio children alive at delatio could inherit or whether child born
• Normal rules – nasciturus cant benefit intestate or after his death could inherit. Application of the nasciturus
testate adage. Child born alive could inherit
• According to normal rules of law of succession, LEGAL QUESTION: Could the child who was born after the death
nasciturus cannot inherit. of the testator inherit?
JUDGEMENT:
• THIS IS WHERE ADAGE APPLIES! • The word “living” as used in the testament must not be taken
• If conception has already taken place (delatio takes literally
place after conception), the interests of the nasciturus • There exists a very strong natural presumption that the
are kept in abeyance. testator intended that a child in ventre matris must be seen as
• Division of the estate is thus postponed until legal already been born
technical birth of nasciturus. • The Steenkamp-case is an indication of how the nasciturus adage
• Born alive – he/she will share in the estate as if he/she finds application in the law of succession and that the rule has
been statutorily codified.
were alive at time of delatio.
 It is now clear that the nasciturus adage found common law application
in the law of succession and that this was statutorily confirmed.

This gives rise to the question of whether the adage can be applied in
disciplines other than the law of succession. Resulted in point of dispute
and much debate.

OTHER FIELDS OF Points of discussion:

APPLICATION 1. Does legal subjectivity always or usually come into existence at
birth? And the granting of legal subjectivity can be expedited if it is
to the advantage of the nasciturus.
2. Possible application of the adage in the law of delict
-Pinchin v Santam Insurance
-Road Accident Fund v Mtati
LO 12: LAW • With reference to the cases of Pinchin v Santam
Insurance Co Ltd 1963 2 SA 254 (W) and Road
OF DELICT Accident Fund v Mtati 2005 6 SA 215 (SCA),
discuss whether the application of the
nasciturus fiction can be extended to the Law
of Delict.
NASCITURUS ADAGE ONLY APPLIES TO
LAW OF SUCCESSION!!!!
LEGAL PERSONALITY ALWAYS BEGINS AT
BIRTH
CASE LAW

SUCCESSION DELICT
DELICT:
• ACT / OMMISSION
• WRONGFULNESS
EX PARTE BOEDEL PINCHEN V RAF V MTATI • FAULT
STEENKAMP STANTAM
• CAUSATION
• DAMAGE
NASCITURUS NOT
NASCITURUS NECESSARY – LAW
APPLIED OF DELICT
ENOUGH
 PINCHIN V SANTAM INSURANCE CO LTD
1963 (2) SA 254 (W)
FACTS:

▪ Woman already six months pregnant was injured through the negligence of a
driver that was insured by the insurer.
▪ Woman lost amniotic fluid, but the rest of the birth process proceeded as
normal.
▪ When baby was 4 months old, he was diagnosed with cerebral paralysis and
brain damage.
▪ Medical evidence: Loss of amniotic fluid caused the womb to contract which led
to a shortage of oxygen tot the nasciturus.
Leading authority for argument that legal subjectivity
usually comes into existence at birth.
 PINCHIN V SANTAM INSURANCE CO LTD
1963 (2) SA 254 (W)
LEGAL QUESTION:

▪ Did the child have a claim for injuries incurred before birth (as a foetus)?
JUDGMENT:
▪ Nasciturus adage was applied
▪ Child could claim for injuries suffered by him as a foetus.
RATIO DECIDENDI:
▪ This view is based on the rule of the Roman law, received into our law, that an
unborn child, if subsequently born alive, is deemed to have all the rights of a
born child, whenever this is to its advantage. There is apparently no reason to
limit the rule to the law of property and to exclude it from the law of delict.
 PINCHIN V SANTAM INSURANCE CO LTD
1963 (2) SA 254 (W)
RATIO DECIDENDI:

▪ Court extended nasciturus adage to the law of delict.

▪ Van der Vyver & Joubert:

Legal subjectivity usually commences at birth, but can be expedited to birth

if to the advantage of the nasciturus.
 PINCHIN V SANTAM INSURANCE CO LTD
1963 (2) SA 254 (W)
CRITIZISM BY JOUBERT:
▪ Joubert criticizes the Pinchin-decision heavily:
1. Court could have applied normal rules of law of delict.
2. Delict consists of 5 elements:
Act, wrongfulness, culpability, causation and damage.
3. These elements can be separated in time and space.

4. For Actio Legis Aquiliae, all elements must be present, but not necessarily
simultaneously.

5. Damages can be suffered 6 months after an accident: Act and damages are then
separated in time and space.

6. A similar approach will address the problem of a nasciturus injured in ventre.

 PINCHIN V SANTAM INSURANCE CO LTD
1963 (2) SA 254 (W)
CRITIZISM BY JOUBERT:
▪ Joubert criticizes the Pinchin-decision heavily
▪ Inappropriate to extend the nasciturus adage to the law of delict
▪ It should be limited to the law of succession

The above views gave rise to uncertainty in our law.

The matter was finally settled in RAF v Mtati
 ROAD ACCIDENT FUND V MTATI
2005 (6) SA 215 (SCA)
FACTS:

▪ Father of a child instituted action against an insurance company for damages

suffered by the child as a result of the negligent driving of a vehicle which was
insured by the insurer.
▪ Father’s wife was at the time of the accident pregnant with the child.
▪ At birth it appeared that the child had suffered brain damage and was mentally
disabled.
▪ Father alleged that the injuries and disabilities of the child were a result of the
injuries suffered in the accident.
 ROAD ACCIDENT FUND V MTATI
2005 (6) SA 215 (SCA)
LEGAL QUESTION:

• The legal question specifically related to the fact that the Multilateral Motor
Vehicle Accident Fund Act prescribed that the fund was under obligation to
compensate any “person” for damages suffered as a result of injury.

• Was the nasciturus thus a person for the purposes of the Act?

• In its discussion of the question, the court referred in detail to the viewpoints
of Joubert and other authors and the decision in Pinchin

• The court also referred to foreign authority

 ROAD ACCIDENT FUND V MTATI
2005 (6) SA 215 (SCA)
DECISION:
• Legal subjectivity always commences at birth.
• Nasciturus- adage finds no application in the law of delict.
RATIO DECIDENDI:
•In law and logic, no damage can have been caused by the plaintiff before
the plaintiff existed.
•From: Martell v Merton and Sutton Health Authority 1992 2 ALL ER 820 (QB).
•Nasciturus adage finds no application in the law of delict.
•Legal subjectivity always comes into existence at birth.
 ROAD ACCIDENT FUND V MTATI
2005 (6) SA 215 (SCA)

It is clear that in this decision the SCA agrees with the viewpoint of
Joubert. Accordingly legal subjectivity always comes into existence at
birth and the application of the nasciturus adage outside of the law of
succession was therefore incorrect

Do drivers of motors then have absolutely NO liability towards nascituri?

-Duval v Seguin (Canadian Judgment)
-Acting without due care & then injury occurs
-Unborn child falls within the area of potential danger
-Driver is required to foresee and take reasonable care to avoid
OTHER FIELDS OF APPLICATION OF THE NASCITURUS
ADAGE
THUS: NASCITURUS RULE
• The SCA had the opportunity to solve
this matter in Road Accident Fund v -comes into existence at birth
-can be advanced to conception (to the
Mtati
advantage of the nasciturus)
• In casu
1) Unnecessary to extend the -deemed to a legal subject at
adage to the law of delict conception
-can claim for damages if he/she was
2) Legal subjectivity comes into already a legal subject
existence at birth
• Position prior to Mtati
OTHER FIELDS OF APPLICATION OF THE NASCITURUS ADAGE

THUS:
• Position prior to Mtati NASCITURUS FICTION
cont. On the other hand it was taught that legal
subjectivity ALWAYS comes into existence at
• According to this birth and that it does not need to be advanced to
approach, the conception
nasciturus adage
cannot be applied in the -treated as if the nasciturus is already in existence for
law of delict on the purposes of a specific benefit
basis that the
nasciturus is already a
-it is and remains a fiction & a “pretend” situation
legal subject -legal subjectivity is not advanced if not to grant benefit
to the nasciturus
-the use of the fiction entails that the situation is treated
as if the nasciturus is alive and his interests are
suspended until birth