TOPIC 2 Flashcards
When does legal personality begin
At birth when a baby is born alive, or at registration for juristic persons, and the ability of legal subjects, through their capacities, to partake in legal intercourse.
What are legal systems
Human constructs, not naturally occurring, and all legal persons are constructed by law.
What are the different legal principles that have different legal principles of “born alive”
- Criminal procedure act S239(1): if baby breathed or movement was witnessed
- Administrative law: Any sign of life
- Law of persons: When baby is separated from its mother (can still have uncut umbilical cord)
What renders a baby viable in SA law
Stage of development of foetus’ organs.
Relevant for termination of pregnancy.
Foetus is viable if all of the most important organs have developed such that it could survive on its own or with scientific aid but separate from its mother.
Premature fetuses are viable when:
-over 600g (private healthcare)
-over 1kg (public healthcare)
What protection does a foetus have under the nascitarus fiction
1)Foetus can enjoy common law protection in form of curator ad litem
20 statutory protection in the Choice on Termination of Pregnancy Act, Immovable property Act
3) protection under the Nascitarus adage
What is the nascitarus fiction
-originated in succession and provides that children in the womb may be regarded as being born if its to the foetus’ advantage
-its a fiction in law because the law treats the foetus as if already being born and operates retrospectively, but not applied as a rule
What are the common law requirements for the nascitarus fiction to operate
-must be to benefit of the foetus
-benefit must accrue after foetus is born alive
-foetus must eventually be born in legal technical sense
How does the nascitarus fiction apply in terms of succession?
if a foetus is supposed to receive certain benefits (like inheritance) but hasn’t been born yet, the law will “wait” until the baby is born. If the baby is born alive, they will receive the benefit as if they had been alive when it first became available. However, if the baby is not born alive, they cannot receive the benefit.
When will foetus receive benefit in terms of intestate succession
Only if conceived at the time that the estate falls open (when testator dies)
S2D(1)(c) Wills Act
Creates the rebuttable presumption that not only persons alive at time of testators death but also those who have been conceived stand to benefit.
Explain the case of Ex parte Boedel Steenkamp:
testator benefitted all his “living” grandchildren in his will and he died while
his daughter was pregnant, and the question was whether the unborn could inherit. It was held that
where a testator conferred a benefit onto a class of people (i.e., his grandchildren) then it cannot be
contended that the testator intended to rebut the legal presumption of the Nasciturus Adage. If he
wanted to do so he would’ve named the grandchildren specifically. It was concluded that the testator
had intended that any grandchild conceived/born at the time of his death should inherit.
Road Accident Fund v Mtati
the question here was does a foetus have a claim, once they are born, for
prenatal damages/maintenance. The court held that they would have a claim under the ordinary rules of
the law of delict, and that the Nasciturus Fiction was unnecessary. In this case:
1. There was an act (driving into a pregnant woman).
2. The act was wrongful (obviously).
3. There was damage (the unborn would develop cerebral palsy).
4. There was culpability (negligence/fault).
5. The act is what caused the damage.
