[zRPz] CHRISTIAN LEAGUE OF SOUTHERN AFRICA v RALL

1981 (2) SA 821 (O)

1981 (2) SA p821

Citation 1981 (2) SA 821 (O)

Court Oranje-Vrystaatse Provinsiale Afdeling

Judge Lc Steyn R

Heard March 11, 1980 ; March 13, 1980 ; March 14, 1980

Judgment January 22, 1981

Annotations Link to Case Annotations

Child - Unborn child - Nasciturus fiction - Application of does not

clothe unborn child with any legal personality - Effect of the fiction - No
scope for the extension of the fiction to protection against abortion - No
legal grounds for the appointment of a curator ad litem to represent
foetus in connection with the termination of the mother's pregnancy -
Also no scope or need for the appearance of a curator ad litem at
proceedings in terms of s 6(4) of the Abortion and Sterilization Act 2 of
1975.
1981 (2) SA p822
Nasciturus - Fiction of - Application of does not clothe unborn child
with any legal personality - Effect of the fiction - No scope for the
extension of the fiction to protection against abortion - No legal grounds
for the appointment of a curator ad litem to represent foetus in
connection with the termination of the mother's pregnancy - Also no
scope or need for the appearance of a curator ad litem at proceedings in
terms of s 6 (4) of the Abortion and Sterilization Act 2 of 1975.
Medicine - Abortion and Sterilization Act 2 of 1975 - Proceedings in
terms of s 6 (4) - No scope or need for the appearance of a curator ad
litem representing the unborn child at such proceedings.
Curator - Curator ad litem - No legal grounds for appointment of such a
curator to represent a foetus in connection with the termination of the
mother's pregnancy - Also no scope or need for the appearance of such a
curator at proceedings in terms of s 6 (4) of the Abortion and
Sterilization Act 2 of 1975.
Curator - Curator ad litem - Application for appointment of to represent
interests of an unborn child in connection with proposed abortion -
Applicant an organisation with the object of promoting the Christian
faith, morals and ethics - Proposed abortion would take place within the
framework of the law - Applicant showing no legal interest on the
grounds of which it had locus standi in judicio.
[zHNz] Headnote : Kopnota

The application of the nasciturus fiction (under which the interests of the
unborn foetus are protected) does not clothe the unborn child with any
legal personality. It ensures only that benefits that might accrue to the
unborn child after birth are held in suspenso until his birth. Where the
1981 (2) SA p823 unborn child is not born alive, there can be no
suggestion of any rights accruing to him and no rights attach to him on
the grounds of which it can be said that he is a legal subject (regsubjek).
Where the unborn child's rights die with him, there is also no scope for
the extension of the nasciturus fiction to protection against abortion. The
nasciturus fiction ought not to be further extended.

There are no legal grounds for the appointment of a curator ad litem to

represent a foetus in cases or matters concerned with the termination of
the mother's pregnancy.

At proceedings before a magistrate in terms of s 6 (4) of the Abortion

and Sterilization Act 2 of 1975 there is no scope or need for the
appearance of a curator ad litem on behalf of the unborn child, whose
interests are looked after by the magistrate who will only issue the
certificate with the content required by the section if he is satisfied (as to
the matters) prescribed by the Act.

In an application for the appointment of a curator ad litem to represent

the interests of the unborn child of the respondent's daughter, which
unborn child had been conceived when respondent's daughter had
allegedly been raped, in all matters concerning the proposed abortion
thereof, it appeared that the applicant was an organisation whose objects
included the promotion of the Christian faith, morals and ethics and it
was alleged that the protection of human life and the care of the well-
being of unborn children was pertinent to the Christian morals and
ethics. The Court found, however that the proposed abortion would take
place in terms of and within the framework of the law and that the
applicant had not shown, on the facts, that the unborn child, in whose
interest the application was brought, was linked in any way with the
applicant organisation or with any organisation with which it was
affiliated. The Court found, accordingly, that applicant had shown no
legal interest on the grounds of which it had locus standi in judicio .
1981 (2) SA p824

L C STEYN R
[zCIz] Case Information

(3.1) The applicant is an organisation representative of members of

various Christian Churches in South Africa and its objects include the
promotion of the Christian faith and practice in Southern Africa and the
promotion of adherence to Christian morals and ethics.
B (3.2) The protection of human life and care for the well being of
the unborn are matters pertinent to Christian morals and ethics. It is
accordingly a matter of grave concern to the applicant that any abortions
performed under the Abortion and Sterilization Act 2 of 1975 should be
procured with due recognition and protection of the rights of the unborn
child.
C (4.1) The applicant has thousands of members throughout South
Africa, comprising individuals and congregations collectively affiliated
to the applicant."
"He would be allowed to act on behalf of a detained person because
he E would satisfy the Court that the detained person could not make the
application himself. This procedure would preserve what in Roman law
was already considered of the highest value and no less regarded in
Roman-Dutch law. The Court would, of course, require to be satisfied
that the applicant had good reason for making the application and that F
the detained person would have made the application himself if it had
been in his power to do so. In this sense an applicant would act in a way
not dissimilar to the way in which a negotiorum gestor would act in our
law, or a person would be permitted to act as a curator ad litem to an
unknown, absent, or inaccessible person (cf, for example, Abrams v
Minister of Railways and Harbours 1917 WLD 51), except that he
would attempt to protect something far more precious than property.
That applies a fortiori where the purpose of the unlawful detention is, as
is G manifest in the present case, to facilitate the infliction of serious and
humiliating assaults on the detainees."
In Pinchin and Another NO v Santam Insurance Co Ltd 1963 (2) SA
254 (W) beslis HIEMSTRA R dat, namens 'n kind wat reeds gebore is,
op
E grond van onregmatige daad geëis kan word tov beserings
opgedoen in ventre matris voor geboorte. Hy stel dit soos volg te 259D
en verder:
"The point remains whether the fiction having its origins in D 1.5.7
and 26 must with any good reason be limited to the law of property.
Why should an unborn infant be regarded as a person for the purposes of
property but not for life and limb? I see no reason for limiting the fiction
in this way, and the old authorities did not expressly limit F it." Te 260B
konkludeer hy soos volg:
"I hold that a child does have an action to recover damages for
prenatal injuries. 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, wherever this is to its
advantage. There is apparently no reason to limit this rule to the law of
property and to exclude it from the law of delict."