Agenda

Protecting the interests of unborn children: 1. Using the nasciturus fiction in succession, maintenance, care and delict (??) matters; 2. Is there a role for the fiction in WL / WB matters? For Thursday: Adv Gavin Dugmores lecture on the Mtati case For next week Wednesday: Is there a role for the fiction in TOP matters? CTOP Act

Nasciturus definition and reqts:

1. 2. 3. Common law requirements: Nasciturus must have been conceived Child must have been born alive Operation of the fiction must be to the advantage of the unborn child
Christian League of South Africa v Rall:
No legal personality bestowed Benefits held in suspense until birth

Application to the field of succession

Intestate Succession Testate Succession (s2D(1)(c) Wills Act) Ex Parte Boedel Steenkamp
NB: prior to s2D(1)(c) kinders wat by datum van dood in die lewe is. (children who are alive at the Ts 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.

Other methods of preserving the interests of the unborn child:

1. Nomination of unborn children in wills and trust deeds

Eg. Fideicommissum

2. Statutory protection
alienation or mortgaging property held ito a fideicommissum. Security must be given to the satisfaction of the Master for delivery of the property after the childs birth.

Through the cases

Ex Parte Boedel Steenkamp (succession); Chisholm (maintenance); Shields v Shields (care): (B) Defendant, who is at present pregnant, shall have custody of the child born of the marriage to the plaintiff; and plaintiff shall not be ordered to maintain such child ; Pinchin (delict obiter);

Mtati (nasciturus necessary?).

Fiction vs Rule?

Van der Vyver & Joubert and Van der Merwe = RULE Heaton, Boezaart, Kruger and Robinson, Schafer, Spiro etc. = FICTION

Is there any role for the nasciturus fiction in wrongful life actions?

Friedman v Glicksman Stewart v Botha Facts

Causes of action (WB / WL) Exception taken? Findings

Role of nasciturus fiction?

Status of the child at the time of the negligent act 1141B of Friedman

Interesting issues that arise?

For Thursday
Read the Chisholm, Pinchin and Mtati cases June 2008 Persons exam:
You are an attorney. Nombulelo Mkhize comes to you for advice. Six months previously, Nombulelo gave birth to Thandi. Thandi was born with congenital syphilis. Nombulelo advises that, before Thandi was conceived, she received a blood transfusion from Fort Fordyce Hospital in the Eastern Cape and, as a result, contracted syphilis. There is no doubt that the botched blood transfusion was the proximate cause of the syphilis she contracted and, in turn, the congenital syphilis that Thandi contracted. She now wants to sue the hospital for the harm caused to her and her child. Advise Nombulelo fully, with reference to case law.

For next week

You are an attorney. Mary Watkins and her mother (Sylvia) approach you for advice. Mary, a 17 year old student at Rhodes University, is very overweight due to a thyroid problem and explains to you that she has irregular menses (ie. she does not have regular periods). She advises that she was raped at a party a few months ago where she had been given a drink spiked with a drug. She has just discovered that she is 22 weeks pregnant. She wishes to terminate the pregnancy. Her mother, on the other hand, wants her to keep the baby and has threatened to withhold parental consent to the termination. Advise Mary and Sylvia fully.