Authored By: Regomoditswe Phala
University of Pretoria
INTRODUCTION
The legal status of an unborn child has for long presented complex questions in South African Private Law, as common law recognizes that legal personality and subjectivity begin at birth this supports the argument that unborn children is whatsoever not regarded as a legal person. As such in Roman-Dutch Law the interest of the unborn child was protected in certain circumstances. This protection can be traced back to a Latin saying which states : nasciturus pro iam nato babetur quotiens de commodo eius agitur.Freely translated this means that the unborn ( or nasciturus, as it is usually called in legal literature) can be regarded as already having been born when it is to his(the unborn’s) advantage [1]. This doctrine is known as the nasciturus fiction and it dictates that that a conceived but unborn child is treated as already born wherever this is to its advantage, The fiction takes cognisance of the fact that the nasciturus will be a legal subject after birth. By using the fiction, the interest of the potential legal subject is kept at abeyance[2]. Traditionally the Fiction has been applied under the Law of Succession and portions of Property Law. However, due to recent developments in medical law and law of delict, the Nasciturus fiction has been extended to the law of delict such as in the Chisolm v East rand Proprietary Mines which dealt with the claims of maintenance for an unborn child.
The fiction was also used for claims arising from prenatal injuries which caused tension in South African Law as the law maintained that unborn children had no legal subjectivity and personality and thus have no enforceable rights. On the other hand, the Constitution prioritizes the interest of children in most cases and established that a child born alive may claim for damages accrued while in the utero. In Pinchen v Santam insurance Co Ltd the nasciturus fiction had been extended further to cover not only patrimonial loss but also cases of reparations. The court ruled that the nasciturus fiction can be used to claim compensation for the infringements of a person’s physical integrity if the loss arose out of pre-natal injuries.
In Mtati v Road accident fund, The SCA shifted the position of pre-natal injuries claims to be covered by ordinary laws of delict and this raises an important question of whether the law of delict protects the interests of children and pre-natal rights adequately or whether the nasciturus fiction should be implemented to protect parents and unborn children against pre-natal injuries[3]. This article critically examines the history behind the developments, purpose and application of the nasciturus fiction and the basis of the delictual liabilities in relation to to pre-natal, and through analytical review of relevant case law ,constitutional principles, legislation and academic commentary it will question the shift of application of the nasciturus fiction in the issues pertaining to pre-birth injuries. It will further evaluate whether the adoption of delict promotes legal certainty and whether it enhances protection for unborn children who suffer from pre-natal injuries.
Background and Conceptual Framework
Legal Personality in South African Law
Birth is the foundation of legal personality or subjectivity in South Africa. Statutory Law, specifically the birth and death registration Act 51 of 1992 dictates that the birth is examined by evidence of the presence of any sign of life[4].Without legal personality and subjectivity individuals would not be able to acquire rights, incur obligations and hold certain offices as legal persons Thus determining legal personality is imperative to say the least as it marks the point and beginning of legal subjectivity.
A natural person’s legal personality begins at birth. Before birth a foetus is not a legal subject and therefore not the bearer of rights, duties and capacities and it ends upon death Legal personality begins if the following requirements are complied with: I. The birth must be fully completed. There must be a complete separation between the body of the mother and the foetus. The child must have lived after such separation, even if is for a short period[5]. While it is known fact that only living persons can be bearer of juristic rights, legal duties and subjectivity outside of the scope of juristic persons of course, the known principle rooted in common law does cause several issues especially regarding pre-natal injury claims as it causes legal uncertainty as the rights of unborn children should be protected at all times. It was remedied by the nasciturus fiction which permitted the protection of unborn children by treating them as if they were alive, with of course the thought in mind that they would later be born alive. However, due to the court’s interpretation of pre-natal injuries as delict in the Mtati case the SCA considered the Application of the fiction as unnecessary as it felt that the ordinary laws of delict were enough to deal with pre-natal matters.[6]
The Nasciturus Fiction
The Nasciturus Fiction is a principle long established and rooted in Roman-Dutch Law that has been incorporated into South African Law. According to Roman Lawyers an unborn child in ventre matris was deemed to have been born and to have a legal personality prior to the date of his birth if this would be to his advantage and provided the child was in fact born alive[7].Through various academic commentaries this article firmly substantiates that the fiction does not confer legal personality but rather keeps the rights of unborn aside until it is born. The nasciturus fiction operates if the nasciturus was conceived at the time the benefit would have accrued to him and the child must subsequently be born alive. If the child is not born alive, he is considered as never been conceived for purposes of this benefit[8]. The fiction thus takes cognisance of the fact that the nasciturus will be a legal subject after birth. By using the fiction, the interest of the potential legal are kept in abeyance [9].
Certain requirements have been assessed through various cases like the Pinchen v Santam Insurance case and through academic commentaries. Before the extension of the fiction to the law of delict, the Nasciturus fiction comprehensively utilised for areas of the law of succession specifically testate and intestate succession, and through intestate succession it applied according to the rules that are applicable when the deceased did not leave a valid will that explicitly states the inheritor of the estate, while the testate succession deals with the regulation of successions based on a valid will. The Nasciturus fiction is applied in these areas, as in intestate the so-called stage of delatio is usually applicable when the heir is alive when the estate becomes open but in the case of the unborn the fiction with extraordinary powers maintains the unborn’s rights in abeyance until birth. In testate succession it has been used in the case when the testator had died while the unborn was already conceived but still in uterus. The principle is ever so entrenched in within our law as in 1992 it was expressly included in the wills Act 7 of 1953.
The Nasciturus Fiction is subject to three requirements for it to be applicable in any matter for instance the advantage or rather the benefit the unborn is entitled to hold. This requirement is largely met when both the child and parent or in some instance another third party in the child’s life are jointly benefited. Another requirement is if the benefit is accrued to the nasciturus after the date of conception. The third requirement relies on the assumed possibility that the child will be born alive and will satisfied when the nasciturus is born in the legal technical sense [10].Although while it was trinationally confined to the law of succession, through various judicial interpretation the question has been raised on whether the doctrine should be extended for delictual claims arising from pre-natal injuries.
Delict and Prenatal injuries
The law of Delict in South Africa is intended to protect individuals who have suffered from harm at the hands of another person’s wrongfulness and negligence. Generally, the success of a delictual claim relies on the presentation of proof for the 5 elements of delict which are conduct, causation, fault, wrongfulness, and damages all these 5 elements are required for a delictual claim. The imperative matter of the requirements was highlighted in the Road Accident Fund v Mtati case where the plaintiff failed to prove all 5 elements, which will be explored in thoroughly in the subsequent sections of this article[11].
In special circumstances such as in cases of pre-natal injuries, complications may occur as it deals with harm to the individual before they have acquired legal personality. Most relevant examples of such claims could be exposure to harmful substances, or vehicle accidents resulting in injuries to the unborn, the consequences often arise after the birth. Clear confirmation of the extension of the fiction took place in the judgement of Pinchen NO v Santam Insurance as discussed in the sections that follow[12].
Judicial/ Case Law developments on pre-natal injury claims
Ex Parte Boedal Steenkamp
While it remains one of the earliest depictions of the use of the Nasciturus fiction the case of Ex Parte Boedal Steenkamp shows the development of the fiction in our Law. In that case a grandfather had left his estate to his grandchildren and empathetically stated that only children who are alive at the time when the estate falls open shall inherit, problems arose when there was a discovery of a potential grandchild. The Court applied the Nasciturus fiction as they it believed that the testator could not have foreseen that his daughter could be pregnant at the time of his death and therefore the nasciturus fiction had to apply to protect the interest of the unborn grandchild. This development reaffirmed the requirement and nature of the Nasciturus fiction and laid the foundation for the consideration for delictual liability through the fiction’s lens[13].
Pinchen NO v Santam Insurance Co Ltd
As aforementioned above the earliest extension of the Nasciturus fiction in the issue of delictual liability due to pre- natal injuries was raised in analysed in Pinchen NO v Santam Insurance Co Ltd. In this case, a pregnant woman was travelling in a motor vehicle which was involved in an accident. The accident was caused by the negligence of the driver. The mother sustained injuries. After the accident she had normal pregnancy until her child was born with cerebral palsy. The father brought an action on behalf of the child for injuries sustained while in the mother’s womb.[14]
The issue at hand on this case was whether a child born alive is able institute a claim for injuries sustained while in utero? The court then applied the Nasciturus fiction to entitle the child with rights to demand compensation due to the injuries sustained due to the accident. In principle Hiemstra J emphasised that the fiction would apply, but in the relevant case due to lack of evidence to proof the link of accident and injuries the parents were unsuccessful in this case[15]. The reasoning sparked debate and criticism about the extension of the fiction to delictual matters concerning pre-natal injuries.
Road Accident Fund v Mtati
In 2005 the SCA dealt with a matter similar to Pinchen, as the father of a chid sued the Road Accident Fund for R1,3 million after his wife was involved in a car accident at the hands of a negligent motorist, at birth Zukhanye the child of born to the earlier injured mother had suffered brain damage and it was alleged to have sustained those injuries due to the collision. RAF argued that the driver did not owe a duty of care as the child was not a legal subject at the time of the accident.
The issue was whether the claim was valid and under what legal basis? The Supreme Court held that reparations were necessary but questioned the basis of the nasciturus fiction. The SCA found that the Nasciturus fiction was unnecessary in cases of pre-natal injuries and argued that ordinary laws of delict were sufficient in serving as a remedy for such cases[16].
Critical Analysis/ Findings
Case Law Analysis: Road Accident Fund v Mtati
The Supreme Court of Appeal’s reasoning was grounded on sparking academic debate as authors like Joubert had relevant viewpoints. It considered the possibility of the nasciturus not providing a basis for injury caused before conception as such supported the decision to favour the application of the general principles of delict. Joubert argued that the application of the nasciturus fiction was unnecessary and believed that the ordinary rules o delict was enough to justify a claim. The application of the Nasciturus does indeed bring about uncertainty in potential matters regarding pre-natal injuries. Through extensive referral to Joubert’s viewpoint Judge of appeal Farlam insistently stated that they should be a remedy for instances of injuries that happen before conceptions that still influence the child, which the Nasciturus Fiction within its powers cannot oversee.[17]
Arguments in Favour of extending the Nasciturus Fiction
Argument for the extension can attributed to at least two viable reasons
Firstly, the doctrinal continuity of the fiction due to the continuous use of it throughout history establishes a trustworthy basis of it and it promotes legal certainty as the extension of the Nasciturus fiction in the Law of delict would reduce legal ambiguity and limit the chance of injustice in developing tests for problems that can be solved by an already established doctrine[18]
secondly, the extension would in most cases showcase its protective powers of children, unlike the general principle which require all the elements of delict to be present for the claim to go through while normally all the elements would be present in most cases over time as the damages are proven after the birth, in this case I refer to Boberg’s argument that the separation of the elements in space and time causes complications as he stated that damage alone is show after birth and it alone cannot constitute delict and he further emphasised his argument by highlighting that the injury began while the child was in utero meaning the damage suffered was set in motion before the birth. Therefore, highlighting that the Nasciturus fiction is still necessary in pre-natal issues and delictual liability[19].
Arguments against extending the nasciturus fiction
The disapproval of the extension has been criticised by many, the most notable being W.A Joubert. He stated that it was indeed unnecessary to extend the Nasciturus fiction in the law delict as the general laws of delict were sufficient to resolve pre-natal injury matters[20]. His viewpoints were substantiated by the instance or possibility of the fiction unable to provide a basis for an action if the if the injury-causing event took place before conception as the Nasciturus fiction is in effect for the unborn children who were already conceived[21].
Comparative Analysis
Comparatively, the position in England and Wales is more stable in their pre-natal injury matters as rather than expanding the nasciturus fiction or relying on judicial development, English Law regulates the claim through the congenital Disabilities Act (Civil Liability) Act 1976. The act provides statutory protection for children born alive who sustain pre-natal injuries [22]. This suggest that expansion of the fiction is not necessary, a more effective way to establish greater legal certainty would be through legislative intervention or providing clarification of the delictual principles overseeing pre-natal injury claims in South Africa.
Conclusion
This article has well examined the past and present legal position of pre-natal injury claims In South Africa, as well as the important aspects of prioritising the best interests of children. The South African judiciary has made relevant development through the pinchen case as the fiction was promoted and through the RAF v Mtati case established that the general laws of delict were sufficient, upon comparative analysis the most suitable path would continuation of the use of general principles of delict and legislative framework.
Reference(S):
Legislation
Boezaart, T. (2020). LAW OF PERSONS SEVENTH EDITION. JUTA.
Ex parte Steenkamp and Steenkamp , 744 (Transvaal 1952).
JM Potgieter, P. V. (2015). Law of Delict . LexisNexis.
M.B Mankga. (2008). Nasciturus fiction and the principles of the law of delict. Sabinet AFrican Journel, 50.
Pinchen NO v Santam Insurance co Ltd, 254 (Western Cape High Court 1963).
Road Accident Fund V Mtati , 332/04 (SCA JUNE 1, 2005).
Zyl, D. V. (1977). Geskiedenis en Beginsels van die Romainse Privaatreg. LexisNexis.
[1] Trynie Boezaart, LAW OF PERSONS (7TH edn, JUTA 2020)15 – 17.
[2] Trynie Boezaart, LAW OF PERSONS (7TH edn, JUTA 2020) 18.
[3] Road Accident Fund v Mtati 2005 (6) SA 215 (SCA)
[4] Birth and Death Registration Act 51 of 1992
[5] M.B Mankga Nasciturus fiction and the principles of the law of delict considered in the light of a recent judgment, Vol 48 No 2 SAJ,1
[6] Road Accident Fund v Mtati 2005 (6) SA 215 (SCA)
[7] Van Zyl, Geskiedenis en Beginsels van die Romeinse Privaatreg,(1977) 74)
[8] M.B Mankga, Nasciturus fiction and the principles of the law of delict considered in the light of a recent judgment, Vol 48 No 2 SAJ, 1
[9] Trynie Boezaart, LAW OF PERSONS (7TH edn, JUTA 2020) 15.
[10] Trynie Boezaart, LAW OF PERSONS (7TH edn, JUTA 2020) 15-17.
[11] JM Potgieter, PJ Visser and J Neethling, Law of Delict (8TH edn, LexisNexis, 2020) 32-35
[12] Pinchen NO v Santam Insurance Co Ltd 1963 (2) SA 254 (W)
[13] Ex parte Steenkamp and Steenkamp 1952 (1) SA 744 (T)
[14] M.B Mankga Nasciturus fiction and the principles of the law of delict considered in the light of a recent judgment, Vol 48 No 2 SAJ,2
[15] Trynie Boezaart, LAW OF PERSONS (7TH edn, JUTA 2020) 18-19
[16] Road Accident Fund v Mtati 2005 (6) SA 215 (SCA), also reported as RAF v M obo M [2005] 3 All SA 340 (SCA)190
[17] Trynie Boezaart, LAW OF PERSONS (7TH edn, JUTA 2020) 19-21
[18]Road Accident Fund v Mtati 2005 (6) SA 215 (SCA), also reported as RAF v M obo M [2005] 3 All SA 340 (SCA) 193-195
[19] PQR Boberg, The law of Delict: Volume I: Aquilian Liability (Juta 1984)
[20] WA Joubert, ‘Pinchin & Ano NO v Santam Insurance Co Ltd 1963 2 SA 254 (W)’ (1963) 26 THRHR 295.
[21] Trynie Boezaart, LAW OF PERSONS (7TH edn, JUTA 2020) 21
[22] Congenital Disabilities (Civil Liability) Act 1976, c 28.
