CASE SUMMARY

Title: Ex Parte Boedel Steenkamp 1962 (3) SA 954 (O).

Facts: Paul Johannes Steenkamp, the testator, made a will on 22 February 1960 in terms of
which the residue of his estate was equally divided among his daughter Magdalena Susanna
de Villiers and her children of the first generation who were alive at the time of his death.
When the testator died on 15 December 1960, his daughter had two children and was
pregnant with her third child, Paul Johannes, who was subsequently born on 13 July 1961.
The applicant applied to the court to determine whether the grandchildren of the testator, who
had already been born at the time of the testator’s death, should solely inherit the remainder
of the testator’s estate; or whether the third grandchild, who was born after the testator’s
death but was in ventre matris before his death, should also inherit.

Issue: The issue before the court was whether the third grandchild (Paul Johannes), who was
born after the testator’s death but was in ventre matris before his death, could also inherit the
estate inherited by his mother and siblings.

Principle: According to the common law, for the purposes of inheritance, a child in ventre
matris is deemed to have already been born, provided that he/she is later born alive and the
bequest s to the advantage of such a child (nasciturus fiction).

Application: The court held that a reference to children ‘living’ or ‘born’ at a particular time
would, in everyday use, exclude a child in ventre matris, the use of such words in this
specific context and in the absence of any other indication which makes the intention of the
testator completely clear, is not sufficient to rebut the very strong legal presumption that the
testator intended a child in ventre matris to be deemed to be already born or alive.

The court held further that it must be presumed that the testator had the natural urge to benefit
a grandchild in ventre matris in the same way as grandchildren who were already born at the
time of his death. The use of the words ‘alive’ or ‘living’ must not be taken too literally as an
indication that the testator necessarily thereby to rebut the presumption, but rather, because it

Unlawfulness and damages

cannot be merged into one.
They are separate elements of
delictual liability and
must both be present for a delict
to have taken place. For
wrongfulness to be present there
must be a breach
of a legal duty.
The judge says that a driver
does owe a duty of care to an
unborn child since there is a
“foreseeable risk”
that a mother might be pregnant
with a child and therefore a
legal duty is owed to both of
them.
The appellant also argued that
allowing an infant to claim for
pre-natal injuries will open the
“floodgates” to
litigation and parents will start
claiming damages for their
stillborn children and children
who die after a
couple hours.
This will however not work in
our law since the right of action
only becomes complete when a
child is born
alive. A child who dies shortly
after birth will have their claim
for pre-natal injuries lapse
unless they have
already started proceedings.
Conclusion:
The special plea was dismissed.
It was decided that only the
principles of the law of delict
have to be present
for a child to claim for pre-natal
injuries and that the nasciturus
fiction is an unnecessary
extension
is to the advantage to his third grandchild, Paul Johannes, that he emphasised the
presumption.

Conclusion: The court ordered that in respect of the residue of the testator’s estate, Paul
Johannes should be deemed to have been alive at the time of the testator’s death, and is
entitled to share equally with his mother and siblings

Unlawfulness and damages

cannot be merged into one.
They are separate elements of
delictual liability and
must both be present for a delict
to have taken place. For
wrongfulness to be present there
must be a breach
of a legal duty.
The judge says that a driver
does owe a duty of care to an
unborn child since there is a
“foreseeable risk”
that a mother might be pregnant
with a child and therefore a
legal duty is owed to both of
them.
The appellant also argued that
allowing an infant to claim for
pre-natal injuries will open the
“floodgates” to
litigation and parents will start
claiming damages for their
stillborn children and children
who die after a
couple hours.
This will however not work in
our law since the right of action
only becomes complete when a
child is born
alive. A child who dies shortly
after birth will have their claim
for pre-natal injuries lapse
unless they have
already started proceedings.
Conclusion:
The special plea was dismissed.
It was decided that only the
principles of the law of delict
have to be present
for a child to claim for pre-natal
injuries and that the nasciturus
fiction is an unnecessary
extension