Persons 2'.ppt

7/28/2019 'Persons 2'.ppt

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Law of Persons 2011

Lecture 2: Beginning of legal personality


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Agenda

Legal requirements for birth

The interests of the unborn child


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Significance of the beginning of legal

personality

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.


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How does one determine when a legal subject comes

into existence? (The following are common-law

requirements.)

1. The birth must be fully completed; theremust be a total separation between thebody of the mother and that of the foetus.

2. The child must be or have been alivehave lived independentlyafterseparation.

3. Must the child be viable? That is, must the

foetus have reached stage in the motherat which it could live independently (withor without aid) of the mothersbloodstream? There no grounds for this

position in South African law.


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Proof of life after birth in particular

statutes?

There is no definitive manner of proving lifeafter birth.

Section 239(1) of the Criminal ProcedureAct (51 of 1977) provides as follows:

At criminal proceedings at which an accusedis charged with the killing of a newly-bornchild, such child shall be deemed to havebeen born alive i f the chi ld is p roved tohave breathed, whether or not the child hadan independent circulation, and it shall not benecessary to prove that such child was, atthe time of its death, entirely separated fromthe body of its mother.


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Proof of life after birth?

How is it determined whether or not the child

breathed?

if there is crying or heart activity; and by the hydrostatic test, in which the childs lungs

cut into pieces and tested for floatage.

Significance? Scenario: S v Mshumpa 2008 (1) SACR 126 (E)

Scenario: Succession example


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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 still-birth, in relation to a child, has a corresponding meaning;

Before section 40 of the Childrens Act (which replacedsection 5 of the Childrens Status Act), a child born by artificialfertilisation of a lesbian in a life partnership was given eitherpartners surname or a double-barrel.

This position was the result ofJ v Director-General, whereonly the birth mother, but not life partner, could be registeredas a parent. (There had to be a mother and a father.)

Section 5 of the Childrens Status Act (in terms ofwhch the

child is only legitimate if its birth mother is married) wasfound 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 wereequated with marriages, so this was no longer a problem.


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Interests of the unborn child

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.


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Nasciturusdefinition and requirements:

Common law requirements:1. The nasciturus must have been conceived.

2. The child must have been born alive.

3. The operation of the fiction must be to the

advantage of the unborn child: Digest 1.5.7

Voet 1.5.5

Christian League of South Africa v Rall:

die toepassing van die nasciturus-fiksie nie dieongeborene met enige regspersoonlikeheidbeklle nie. Dit verseker slegs dat voordele watdie ongebore vrug na geboorte mag toeval insuspenso gehou word tot sy geboorte (at 829H-830A)


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Application to the field of succession

Intestate Succession

A person can only inherit if s/he is alive at the

time of the delatio

Operation of fiction

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.


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Section 2D(1)(c) of the Wills Act

Any benefit allocated to the children of a

person, or to the members of a class of

persons mentioned in the will shall vest inthe children of that person or those

members of the class of persons who are

alive at the time of the devolution of the

benefit, or who have already been

conceived at that t ime and who are later

bo rn alive.


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Ex Parte Boedel Steenkamp

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 testatorsdeath)

Decision: Illustration of the unwillingness of thecourts to act to the prejudice of the nasciturus.

Decision makes it clear: T must express hisintention veryclearly.


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Other methods of preserving the interests of

the unborn child:

1. Nomination of unborn children in willsand trust deeds

Eg. Fideicommissum

2. Statutory protection alienation or mortgaging property held in terms

of a fideicommissum.

Security must be given to the satisfaction ofthe Master for delivery of the property after the

childs birth.


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Through the cases

Ex Parte Boedel Steenkamp(succession);

Chisholm(maintenance);

Shields v Shields(maintenance and care):(B) Defendant, who is at present pregnant, shallhave custody of the child born of the marriageto the plaintiff; and plaintiff shall not be ordered to

maintain such child ;

Pinchin(delictobiter);

Mtati (nasci turu snecessary?).


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For next week:

For consideration: should we call thenasciturus principle a fiction or a rule?

Wednesday: deal with wrongful life /wrongful death actions & CTOP

Thursday: deal with Mtaticase (makesure you have read cases precedingMtatiChisholm & Pinchin as well as

know the five elements of a delict)

Documents

Persons 2'.ppt