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Study unit 2 - The beginning of legal personality / legal subjectivity -…
Study unit 2 - The beginning of legal personality / legal subjectivity
Birth
Legal subjectivity starts at birth and carries on until death
In order to be born
Separated from the mothers body
Lived independently (any sign of life)
Legal personality begins at birth with the following requirements:
The child must be alive after the separation even if it is only for a short period. Legal personality is not obtained by a stillborn foetus or a foetus which dies during birth
The child must also be viable before legal personality is conferred upon it. Not valid in South African law
Birth must be fully completed. For birth to be completed it is not required that the umbilical cord be severed (cut off)
Different definitions of birth
Law of criminal procedure => Section 239(1) of the Criminal procedure act 51 => Child is proved to have breathed
Administrative law => Births and deaths registration Act 51 => Any sign of life required
Law of persons => Foetus must have lived independently and the birth must be fully completed (separated from mothers body)
The requirement of viability
Viability means that the child must have reached such a stage of development within the mother's body that he or she could live independently
In South African law, viability does not need to exist at birth in order to be considered a legal subject
Registration of births
In terms of the Births and death registration act 51 of 1992, notice of the birth of every child born alive must be given within 30 days after the birth to the Director General of Home Affairs
No birth may be registered unless a surname and forename is given
If parents later get married, the surname will be changed as if they were always married
Notice of the birth of a legitimate child must be given under the surname of either the mother or father or both, If parents are married either of the child's parents may give formal notice of the birth to the Department of Home Affairs.
If a child is born to unmarried parents, the mothers surname is given. May jointly request that fathers surname is given, but he must acknowledge paternity. If the child is registered under the father's surname, written consent to change the surname from the father is no longer required where the mother has sole guardianship over the child. If parents are not married, the mother has the obligation to give notice of the child's birth
Lesbian or same sex partners by means of artificial fertilization will be of the mother or partners surname
Protection of the unborn foetus - Nasciturus fiction
Does NOT give legal subjectivity before birth
The fiction is based on a presumption or assumption that is not based on a fact, when applying the Nasciturus fiction, the unborn child is regarded as a living person, although not born yet
Unborn can be regarded as already having been born when it is to his/her advantage
Nasciturus fiction implies that certain claims/rights or the legal position that could be to the advantage of the Nasciturus is kept in abeyance for receipt upon birth
The law protects the unborn during this period even though it is not yet a legal subject
Requirements of application
Common law:
Benefit must accrue after the date of conception.
Fiction is to the benefit of the unborn (if the benefit is only to a third party, then the fiction is not applied)
Foetus must eventually be born alive
Ex parte Boedel Sttenkamp
Testator said daughter and children who are alive
Court had to determine whether unborn inherits
Such a strong natural presumption that the testator would have wanted to benefit not just his descendants that were already born but those that which were already conceived
Therefore unborn could inherit
Thus applicable to law of succession
By naming specific grandchildren that will inherit, Nasciturus fiction will not apply if unborn has not specifically been mentioned
If C is born but dies 2 seconds later, it is considered to have been born and thus the inheritance will be awarded to the parents
Nasciturus is a conceived but unborn child (foetus) not yet a legal subject. Between conception and birth
Succession
Intestate succession
Where a person failed to leave a valid will, the estate devolves in terms of the law of intestate succession
Nasciturus fiction is applied to protect potential interests of an unborn child as division of the assets is postponed until it is certain whether a live person is born or not. If the child is born alive he/she inherits as if he/she was already born at the time of the deceased's death
Testate succession
It has been held that if a testator does not appoint beneficiaries by name, but as members of a class, child is in that class who was already conceived at the time of the testator's death but was born only after the testator's death can inherit. The reason for the decision is that the testator presumably had the intention of benefiting already conceived but still unborn persons belonging to this class
Maintenance
If the father of a Nasciturus is killed as a result of someone else's delict, the child can, after her/his birth institute an action/claim for damages as a result of the loss of support against the person who killed he/his father. The basis for calculating the claim is to put the child in the position that she/he would have been if her/his father was not killed
Will's Act 7 of 1953 S2D (1)(C) = Legislation
Says, that there is a rebuttable presumption that not only the children or persons alive at time of testators death but also those who have been conceived stand to benefit
Nasciturus fiction and the law of delict
Pinchin and Another, no v Santam Insurance CO LTD 1963 (2) SA 254 (W)
Legal question => Does a person have right to recourse any harm inflicted whilst in his mothers womb? Does the baby have a claim for its quality of life affected - pain and suffering
Question of fact => Whether or not the injuries inflicted on the infant were caused by the accident or whether they were as a result of. If the accident caused the mental defect then the legal question caused the defect
The court found that medical evidence on a balance of probabilities could not prove that the accident caused the defect
The court found that it is possible for the unborn to claim compensation using the Nasciturus fiction, however, in this particular case the facts could not prove the casual link and damages were not awarded
Created great legal uncertainty
Road accident fund v Mtati 2005
The SCA repealed the decision in Pinchin v Santam and found that the Nasciturus fiction cannot be applied in the law of delict
It was unnecessary for the fiction to be extended to the law of delict as if all the requirements of a felict are met then damages can be awarded and the Nasciturus fiction need not be applied, for even if the elements of a delict are not met the Nasciturus fiction may not be applied
A delict is a wrongful and culpable act that causes harm to another person
Elements of delict
Act
Wrongful
Negligence
Damage
Causation
Statutory provisions for the protection of the unborn foetus' interests
Immovable property (removal or modification of restrictions) Act 94 of 1965 section 2
Prevents beneficiaries from acting as they wish in respect of property
Fideicommissum => a legal institution, where the owner of a property transfers this property to another person, subject to it being transferred from that person to yet another person at a later stage
Limited to 2 fideicommunissarii
General law Amendment Act 62 of 1955
The high court may grant permission to alienate (sell) such property or to attach a mortgage as if the unborn child were a minor who had already been born
Only if it is to the advantage of the unborn
There are 3 laws in place:
Administration of Estates Act 66 of 1965
Section 44 => Minor or unborn heir may be entitled to immovable property which may be given to another person as long as they give security to the satisfaction of the Master of High Court
Section 94 => Sub-division of immovable property, on behalf of minor if the proposed sub-division is expedient and fair
Birth control
Divided into 3 periods
13 to 20 weeks
Doctor has to consult and he has to be convinced one of the 4 grounds exists
Pose a risk of injury to woman's physical or mental health
If there is substantial risk that the foetus will suffer from severe physical or mental abnormalities
If the pregnancy is as a result of rape or incest. Does not have to be proven
If the continued pregnancy will have an adverse effect on the woman's social or economic circumstances
After the 20th week
Two medical practitioners need to agree on one of the listed in order to terminate
Woman's life in endangered
Severe malformation of the foetus
Risk of injury of the foetus
Up to 12 weeks (embryo - not a foetus)
first trimester
Termination by choice allowed
Does not need consent from the father - ever
12/13 year old girl does not need consent of her parents
Doctor may not advise against an abortion but must still discuss available options
An abortion may only take place with the informed consent of the pregnant woman. No other consent than that of the pregnant woman is required for the termination of a pregnancy unless, she is incapable of giving consent. In the case of a pregnant minor, the medical practitioner or registered mid-wife must advise the minor to consult with her parents, guardians or family members before the pregnancy is terminated. She may however not be denied the termination if she does not want to consult with any of the above
Choice of termination of pregnancy act 92 of 1996
Prior to 1996, abortion was only allowed under serious circumstances
Had to apply to court in order for certificate to allow abortion
Birth control and sterilization are permitted and governed by the sterilization act 44 of 1998 which permits voluntary sterilization of anyone over the age of 18 who is capable of consenting. A person under the age of 18 may only be sterilized if failure to perform the sterilization would jeopardize his/her life
Christian Lawyers Association of SA v The Minister of Health 1998 (4) SA 1113 (T)
Plaintiff
Choice of termination of pregnancy is unconstitutional
Life begins at conception
As termination of pregnancy terminates life, the Act is unconstitutional
Violates Section 11 of the Bill of Rights
Defendant
Foetus is not a bearer of rights according to Section 2 of the Constitution
Woman's right to choice is protected by the Constitution
The legal question is determining the constitutionality of Choice of Termination of Pregnancy Act
The law
Position of the unborn in terms to Common Law is the most uncertain
No expressed provision in Constitution giving foetus legal subjectivity
Section 12(2) => Any person has right to reproduction choices and control over body
If drafters will was to include legal rights to unborn, would have included it in Section 28 (children's rights)
Christian League of Southern Africa v Rall 1981 (2) SA 821 (O)
Legal grounds:
Mothers right to her own choice of abortion
Appointment of curator ad litem - represent foetus in all matters relating to termination of mothers pregnancy
Judgement:
Confirms traditional viewpoint, legal subjectivity start at birth - curator cant be appointed because no legal subject
Fiction not extended because if abortion were successful there would be no baby
The Act is sufficient protection to unborn because the magistrate had to consent to abortion act
Application therefore denied
Facts:
Context - legal abortion
Applicant applied for appointment of curator ad litem
Unborn allegedly conceived though rape
Curator ad litem cannot be appointed in such circumstances = authority
Abortion and Sterilization Act 2 of 1975 which ended up being replaced by Choice on termination of Pregnancy Act 92 of 1996