Law of Persons 2011

Lecture 2: Beginning of legal personality

Agenda

Legal requirements for birth The interests of the unborn child

Significance of the beginning of legal personality

Legal personality begins at birth. Before birth, the foetus is generally not regarded as a legal subject but merely forms part of the mother. The foetus (in general) has no rights, duties or capacities. If legal personality is present, it can be significant, especially for the purposes of the law of succession.

How does one determine when a legal subject comes into existence? (The following are common-law requirements.)

1. The birth must be fully completed; there must be a total separation between the body of the mother and that of the foetus. 2. The child must be or have been alive have lived independentlyafter separation. 3. Must the child be viable? That is, must the foetus have reached stage in the mother at which it could live independently (with or without aid) of the mothers bloodstream? There no grounds for this position in South African law.

Proof of life after birth in particular statutes?

There is no definitive manner of proving life after birth. Section 239(1) of the Criminal Procedure Act (51 of 1977) provides as follows: At criminal proceedings at which an accused is charged with the killing of a newly-born child, such child shall be deemed to have been born alive if the child is proved to have breathed, whether or not the child had an independent circulation, and it shall not be necessary to prove that such child was, at the time of its death, entirely separated from the body of its mother.

Proof of life after birth?

How is it determined whether or not the child breathed?

if there is crying or heart activity; and by the hydrostatic test, in which the childs lungs cut into pieces and tested for floatage.

Significance?
Scenario: S v Mshumpa 2008 (1) SACR 126 (E) Scenario: Succession example

Registration of birth
Births and Deaths Registration Act 51 of 1992:
S 1: birth, in relation to a child, means the birth of a child born alive; S 1: still-born, in relation to a child, means that it has had at least 26 weeks of intra-uterine existence but showed no sign of life after complete birth, and stillbirth, in relation to a child, has a corresponding meaning;

Before section 40 of the Childrens Act (which replaced section 5 of the Childrens Status Act), a child born by artificial fertilisation of a lesbian in a life partnership was given either partners surname or a double-barrel. This position was the result of J v Director-General, where only the birth mother, but not life partner, could be registered as a parent. (There had to be a mother and a father.) Section 5 of the Childrens Status Act (in terms of whch the child is only legitimate if its birth mother is married) was found unconstitutional, and the whole Act repealed. Section 40 of the Childrens Act re-enacted section 5 of the Childrens Status Act, but by this time civil unions were equated with marriages, so this was no longer a problem.

Interests of the unborn child

We know:
that legal personality begins at birth; and therefore that the foetus has no legal personality.

HOWEVER:
1. there is some statutory protection for the foetus; 2. there is also the principle Nasciturus pro iam nato habetur, quotiens de commodo eius agitur; and 3. application is permitted of the ordinary principles of delict in such cases.

Nasciturus definition and requirements:

1. 2. 3. Common law requirements: The nasciturus must have been conceived. The child must have been born alive. The operation of the fiction must be to the advantage of the unborn child:
Digest 1.5.7 Voet 1.5.5

Christian League of South Africa v Rall: die toepassing van die nasciturus-fiksie nie die ongeborene met enige regspersoonlikeheid beklle nie. Dit verseker slegs dat voordele wat die ongebore vrug na geboorte mag toeval in suspenso gehou word tot sy geboorte (at 829H830A)

Application to the field of succession

Intestate Succession A person can only inherit if s/he is alive at the time of the delatio Operation of fiction

Testate Succession 1. I leave my estate to A, B and C. 2. I leave my estate to my (/sons) children born and still to be born. 3. I leave my estate to my (/daughters) children.

Section 2D(1)(c) of the Wills Act

Any benefit allocated to the children of a person, or to the members of a class of persons mentioned in the will shall vest in the children of that person or those members of the class of persons who are alive at the time of the devolution of the benefit, or who have already been conceived at that time and who are later born alive.

Ex Parte Boedel Steenkamp

NB: prior to s2D(1)(c) of the Wills Act kinders wat by datum van dood in die lewe is. (children who are alive at the testators death)
Decision: Illustration of the unwillingness of the courts to act to the prejudice of the nasciturus. Decision makes it clear: T must express his intention very clearly.

Other methods of preserving the interests of the unborn child:

1. Nomination of unborn children in wills and trust deeds Eg. Fideicommissum 2. Statutory protection
alienation or mortgaging property held in terms of a fideicommissum. Security must be given to the satisfaction of the Master for delivery of the property after the childs birth.

Through the cases

Ex Parte Boedel Steenkamp (succession); Chisholm (maintenance); Shields v Shields (maintenance and care): (B) Defendant, who is at present pregnant, shall have custody of the child born of the marriage to the plaintiff; and plaintiff shall not be ordered to maintain such child ; Pinchin (delict obiter);

Mtati (nasciturus necessary?).

For next week:

For consideration: should we call the nasciturus principle a fiction or a rule? Wednesday: deal with wrongful life / wrongful death actions & CTOP Thursday: deal with Mtati case (make sure you have read cases preceding Mtati Chisholm & Pinchin as well as know the five elements of a delict)