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Agenda
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.
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of whch the child is only legitimate if its birth mother is married) was found unconstitutional, and the whole Act repealed.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.
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.
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)
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.
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.
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.