LEGAL SUBJECTIVITY SEPERATION

BEGINS AT BIRTH

INDEPENDENT LIFE?

LEGAL SUBJECT WITH

LEGAL SUBJECTIVITY
CAN HAVE RIGHTS AND
BEFORE BIRTH, CAN AN ENTITITY HAVE RIGHTS PROTECTION OF THE
AND SUBSEQUENT PROTECTION OF THE LAW? LAW

NASCITURUS ADAGE

IF IT IS TO THE ADVANTAGE OF THE UNBORN (NASCITURUS), HE IS DEEMED TO HAVE ALREADY BEEN BORN AND HIS
INTERESTS ARE KEPT OPEN.

MUST BE TO ADVANTAGE OF MUST HAVE BEEN CONCIEVED TWO REQUIREMENTS OF BIRTH

UNBORN and THIRD PARTY AT TESTATORS TIME OF DEATH

 QUESTION NOW IS:
SEPERATION
DOES LEGAL SUBJECTIVITY USUALLY OR ALWAYS BEGIN AT BIRTH?

USUALLY: PINCHIN V SANTAM ALWAYS: MTATI

(FACTS, QUESTION OF LAW AND DECISION AND REASONS OF THE COURT) (FACTS, QUESTION OF LAW AND DECISION AND REASONS OF THE COURT)
Usually begins at birth Always begins at birth
Gives implication Adage remains a fiction
Unborn can sue and be sued as a legal subject in law of delict Unborn treated as if alive
Cannot be applied to law of delict

For: Van der Vyver Against:

and Joubert: usually Redundant
PINCHIN

• No reason to limit it to law of property

• Old legal writers never limited it in this
For: most
manner injury
• State of medical knowledge had not happens pre-
developed to establish a link between pre- natally Against:
natal injury and post-natal injury Joubert
• Child does have a delictual claim
Always,

Apply
only to
LS not
delict

Delictual
elements

Davel and Jordan:

RAF v MTATI

• NO DAMAGE BEFORE PLAINTIFF COULD HAVE EXISTED

• DAMAGE ONLY INCURRED WHEN PLAINTIFF ACHIEVED
PERSONALITY AND INHERITED DAMAGED BODY (AT
BIRTH)
• Event before and after the accidents are mere links to
the chain of causation.
 OTHER MEASURES TO PROTECT THE
SUCCESSIONARY INTERESTS OF THE UNBORN
SEPERATION

Common Law:

Curator ad litem

STATUTORY MEASURES:

1. Immovable Property (Removal or Modification of Restrictions) Act

• Section 2(1) : Removal of restrictions
• Section 3(1) : Circumstances under which court will modify such limitation
• Section 6: fideicommissum that is created by a testament
or by another document is limited to two successive
fideicommissarii
2. The General Law Amendment Act
• Section 33: the High Court can grant permission to the
alienate such property or to encumber it with a mortgage,
‘as if the intended unborn person was a minor in esse”
3. The Administration of Estates Act
• Section 44: Security
• Section 94: Subdivision

BIRTH CONTROL

Alteration of Sex
Description and Sex The Choice on Termination Sterilisation Act
Status Act 49 of 2003. of Pregnancy Act
• Sections
• Sections • Sections
• Definitions • Definitions
• Definitions
• Important • Important dates
dates • Important dates