Theme 3

Question 1

What is the basis of Vissers article?

Answer 1

Visser’s article highlights a single system of law, the main idea is that constitutional and private law work together. Making a constitutionalised single body of private law.

Question 2

What is adjective subsidiarity?

Answer 2

Adjective subsidiarity approach states that you first look at legislation that gives effect to a right first before looking at the right in question

Question 3

What are the two analysis in the horizontality simpliciter approach?

Answer 3

• Value based analysis
• Right based analysis

Question 4

What is the value based analysis in the horizontality simpliciter approach?

Answer 4

Value based analysis is in line with section 39 of the constitution and the interpretation of the bill of rights. The approach interprets law through the values of the Constitution

Question 5

What is the right based analysis in the horizontality simpliciter approach?

Answer 5

Right-based analysis in line with Section 8 deals with the application of the Constitution and that the Bill of rights applies to all. Section 36 deals with when this approach is limited

Question 6

What is a legal system a construct?

Answer 6

A legal system is a human-made product, it’s a conceptual creation made by people in a specific society and may be called a construct.

Question 7

What does birth mean in section 1 of the Births of Registration Act?

Answer 7

According to the definitions in Section 1 of the Births and Registration Act, birth means that of a child that is alive

Question 8

What is the forensic test used to prove if a baby was alive?

Answer 8

The forensic test used during the autopsy of a deceased baby to determine whether an allegedly born foetus indeed took a breath and obtained a legal personality is a hydrostatic test. Which involves examining a piece of lung tissue to see if it floats or sinks.

Question 9

What are the requirements for birth legally in common law?

Answer 9

• Physical separation between the mother and child (seen through the actual representation of the child)
• Being alive independently and breathing (through medical evidence that the baby is alive, such as crying )

Question 10

When will a baby be legally born?

Answer 10

A baby will be born if it has been physically separated from the mother but it is not necessary for the umbilical cord to have been cut, it must have lived after birth. Legal personality begins at live birth.

Question 11

Why does the law have nasciturus fiction?

Answer 11

The law recognises that there might be circumstances in which it becomes necessary to acknowledge the unborn as a potential legal person. The law accomplishes this by using a legal fiction called nasciturus fiction

Question 12

Does a fetus in nasciturus fiction have legal personality?

Answer 12

The legal system does not recognise the foetus as a legal person who can be the bearer of the rights, duties and capacities.

Question 13

What does the phrase nasciturus pro iam nato habetur, quotiens de commodo eius agitur mean?

Answer 13

The Roman latin adage is nasciturus pro iam nato habetur, quotiens de commodo eius agitur means that an unborn child is considered born when his interests are taken into account

Question 14

What does the ex parte boedel steenkamp state?

Answer 14

In the case Ex parte Boedel Steenkamp Voet stated that children in ventre matris (in the mothers womb) are regarded as already born whenever it is a question of their advantage. The fiction will only come into operation if the nasciturus is later born alive and the fiction operates to the advantage of the newborn child.

Question 15

What are the requirements of Nasciturus fiction?

Answer 15

Nasciturus fiction requirements:
1. The must be to the advantage of the child being assumed alive
2. Benefit must accrue to the unborn child after the date of conception
3. The unborn child must be eventually be born in the legal sense

Question 16

What does the nasciturus do?

Answer 16

The nasciturus works retrospectively; they are applied to the existing person as if it had been a person at the time the benefits arose. The fiction does not lie in imparting legal personality to the unborn foetus as there is no legal need for this.

Question 17

What happed in the ex parte boedel steenkamp case?

Answer 17

In the case Ex parte Boedel Steenkamp the testor benefitted the living children of his daughter under a will. He died while his daughter was pregnant. The court held that it would give effect to the strong natural presumption that the testor intended to benefit all his grandchildren, including the unborn child despite the phrase who are alive which Mr Steenkamp used to signify his heirs. The court applied nasciturus fiction and the child who was born after Mr Steenkamp death inherited an appropriate portion

Question 18

What happened in the Pinchin case?

Answer 18

In a 1963 case, Pinchin v Santam the court extended the application of the nasciturus mechanism to the law of delict. It was held that in principle the nasciturus fiction could find a claim in delict for harm suffered by a foetus in utero as a result of a motor vehicle accident in which a pregnant mother was injured. The case was lost as it wasn’t possible to prove the child’s cerebral palsy was caused by the car accident.

Question 19

What does section 2D(1)(c) of the wills act state?

Answer 19

Section 2D(1)(c) of the Wills Act 7 of 1953 puts the nasciturus fiction into our legislation and makes that cases can be decided without going to court. It is the authority of why the conceived but not yet born. It includes those who were alive at time of death or conceived at the time of the death

Question 20

What happened in RAF v Mtati case?

Answer 20

The SCA in Mtati v RAF states that the fiction isn’t needed due to the fact that the delictual requirements were met. The case highlights that due to the requirements in delict only kicking in. Then the requirements of nasciturus fiction does not work in delict, this is due to the fact that the fiction only kicks in when there is a gap however in delict there is no gap

Question 21

What are the three wrongful claims that can be made in South Africa according to the Fridman case?

Answer 21

• the wrongful birth (parents can claim) - when the child comes out unhealthy
• wrongful life (child can claim) - due to negligence that leads to the child being impaired when born (not recognised as seen in Friedman due to it being contra bonos mores)
• wrongful pregnancy (parent can claim ) - when you get a child, even though you went through sterilization