A legal subject as stated by Joubert is the carrier of judicial competencies, objective

rights and capacities. A legal subject in this case is a person who embodies the
characteristic or quality namely legal subjectivity. This is a quality needed by an
entity to be able to conclude legal contracts, be able to partake in legal intercourse
as a legal subject and not as a legal object. A person is said to be a legal subject
should they have come into existence through a legal-technical sense and have
been in correspondence with the two requirements ; the fetus must have been
completely separated from the mother’s body and should have independently lived
after separation even if it was for a brief moment.

PINCHIN V SANTAM INSURANCE CO. LTD

It is in this instance where a fetus is asked to be a legal subject, while still in ventre
matris? A fetus cannot be a legal subject without having legal subjectivity as a
characteristic. But, can a child claim damages for prenatally suffered injuries? This is
answered by the law having recognition for a right for minors or children to claim for
prenatally suffered injuries. Another question asked along with complications is
whether in such cases the nasciturus fiction or general delictual rules should be
applied.

FACTS OF THE CASE.

A six-month pregnant woman was involved in a car accident due to negligence of the
driver, but continued with normal pregnancy after being medically attended to. Mrs.
Pinchin suffered minor injuries but however, suffered a uterine rupture and extreme
loss of amniotic fluid. Four months after birth, her child was diagnosed with cerebral
palsy and brain damage caused by hypoxia, a shortage of oxygen in the human
tissues. The child’s father instituted and brought forward a claim for the damages
caused by the incident to the child. The issue brought before the court was whether
a child has claim for injuries that were prenatally suffered. The rule of law that was
applied in this case was the nasciturus adage fiction which originated from Roman-
Dutch law.

The court applied the nasciturus fiction in its decision of this case. This was upon the
fact given as to why the fiction cannot be advanced for life and limb purposes but,
only be applicable to proprietary laws. Therefore, the court decided that a child can
claim damages for prenatally suffered injuries through such a Roman law. A fetus is
then deemed to be born alive in order to acquire all rights of a child in esse when it is
beneficial to the fetus. This is an indication of the court advancing the nasciturus
fiction to the law of delict. However, this resulted in certain commentaries by some
authors as Van der Vyver and Joubert. Concurrently, they concluded on how a
natural person acquires legal subjectivity at birth, but it can be expedited to
conception should it be advantageous to the nasciturus. Other authors mentioned
the possible of irreparable damages occurring while the child is in ventre matris, and
such damage does not necessarily always occur post-natally.

However, the author with the most criticism in this case was Joubert. He states that
the court could have used general delictual laws because the fiction should be
limited only to the law of succession. This fact was supported by five elements that
are needed for a delict to come into action. These are namely; an act, wrongfulness
regarding to an infringement of a right, culpability or accountability, causation, and
damage which refers to patrimonial or non-patrimonial damages. Nonetheless, it is
not a given that these elements must have simultaneously occurred for a delict to be
proved. Thus, it was concluded that the nasciturus fiction can be advanced to the law
of delict. However in this instance, there was no provision of evidence to indicate a
causal link between the prenatal injuries and the car accident and so the child has no
claim for prenatal damage done, the case was then dismissed.