NASCITURUS FICTION

Question 1

COMMON LAW REQUIREMENTS FOR NASCI FICTION

Answer 1

1. the benefit must be beneficial to both the 3rd party and the nasci, if not & only one benefits, no adage will be applied
2. the benefit accrues to the nasci the date after conception
3. the nasci must be born in technical sense

Question 2

REQUIREMENTS FOR LEGAL SUBJECTIVITY

Answer 2

1. the baby must be separate from the mother regardless of the umbilical cord cutting
2. the baby must’ve breathed and lived independently from the mother regardless of the time he/she has lived

Question 3

EX PARTE BOEDEL STEENKAMP

Answer 3

the legal question was whether children born after the death of the testator should also benefit, the court held that the adage be extended in law of succession as there was strong presumption that the testator wanted to benefit the nasci equally with the already existing grandkids with usage of common law under Voet 1.5.5

Question 4

RAF V MTATI : FACTS OF THE CASE

Answer 4

A pregnant woman was seriously injured when a motor vehicle collided with her. The accident
was caused by negligence of the driver in question. The pregnant woman’s child (Z) was
subsequently born with brain injuries and mental disability. The father instituted a claim on
behalf of the child against the RAF.
RAF raised a special plea. It contended that firstly and unborn child is not
a legal subject & not entitled to compensation and secondly, because
an unborn child is not a legal subject the driver does not owe a duty of care to the nasci

Question 5

RAF V MTATI: LEGAL QUESTION

Answer 5

1. does child Z have any claims on RAF

2. should this case be remedied according to the nasci adage or accord to delict

Question 6

RAF V MTATI: REMEDY OF THE COURT(RATIO DECINDI)

Answer 6

the court held that for law of delict there’s separation of claims therefore unlawfulness and damage are separate claims and the driver does not owe Z legal duties and the adage cannot be extended to law of delict

Question 7

TWO LINES OF ARGUEMENT IN RAF V MTATI

Answer 7

1. the adage could be extended to advancing legal subjectivity by allowing the nasci to have legal subjectivity at conception therefore law of delict should allow claim for damages to nasci as if nasci was already a legal subject
2. the fiction is used to keep the interests of the nasci until born alive therefore it cannot be extended to law of delict as legal subjectivity comes into existence at birth and the child has to be born alive

Question 8

VIABILITY

Answer 8

viability refers to the extent of the foetus development to a certain extent & be able to survive w/o the mother
this is not part of S.A law as it’s vague & leads to impossible problems in evidence