NASCITURUS FICTION EXPLAINED

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I was trying to help a fellow student understand the nasciturus fiction in a way that wouldnt confuse him.I failed. So i went online in an attempt to rectify this travesty of justice!! Lone and behold i came across this nugget of information which explains the fiction in a way even a lay man could understand.
It includes important cases and the crux of the argument.

“The term ‘birth’ can have many different meanings in terms of our law. Our legal system is based on Roman-Dutch law and thus it will be a viable point to look at how these systems have looked at law during their time as well. Lastly I will make mention of recent cases in which ‘birth’ has been used as a point of argument with the aim of illustrating how the law looks at the term in the modern day.

In ancient Rome birth registration was not compulsory, but it could be used for proof of age, however, this proof was not sufficient to prove a persons’ age in many cases[1].in ancient Rome there was no penalty for not registering births and the people that were not registered were not disadvantaged[2].

In South African law today, a term known as the Nasciturus fiction exists which was derived from the Roman law[3]. The nasciturus fiction and the nasciturus rule are two different rules, the nasciturus rule provides that whenever there is a situation which would have been to the advantage of the foetus if she was already born, all rights that are conferred on persons that are already born alive, are also conferred on the foetus, the foetus then becomes a legal persona and carries legal capacity from the date of conception. The child does not have to be born alive[4]. In the case of Pinchin and Another v Santam Insurance Co Ltd 1963 (2) SA 254 the father of a child born with cerebral palsy, claimed that an accident which involved the pregnant mother of the child, caused the injuries which the child now suffers. This is one of the ways that the law looks at ‘birth’. Before birth, the foetus still does not have the right to life because the foetus is not a bearer of rights and duties[5].

In the case of Chrisholm v East Rand Proprietary Mines Ltd 1909 TH 297 a child’s father was killed prior to the child’s birth as a result of another persons’ delict. The court then held that the child has a right of action against this person that caused this delict. The child had an action for loss of support but this action has the prerequisite, namely, that the child must be born alive[6]. The Chrisholm case was the first case in which the nasciturus fiction was extended to the law of delict.

In terms of section 9(3) and (4) constitution of South Africa (Act 108 of 1996)[7] no person may be discriminated against in terms of their ‘birth’ (amongst other forms of discrimination) this can be in the form of people discriminating against the fact that you were born in a public hospital. The constitution makes a point of protecting the many people in our society and against discrimination against birth is one of those protected forms of discrimination.

As we can see, the law regarding birth has developed considerably over time, from not having to register the birth of a person to having to register a person within 30 days in terms of our law. In terms of cases, some people have even tried to apply the nasciturus fiction in the law of delict. The term birth definitely has more than one meaning in our law.” CLS

what you think? was this helpful to any of you Private Law students?
HERE are two cases….Raf v mac nasciturus fiction SCA
VAN HEERDEN V JOUBERT NASCITURUS FICTION<

tlg

[1] http://en.wikipedia.org/wiki/Birth_registration_in_Ancient_Rome
[2] http://en.wikipedia.org/wiki/Birth_registration_in_Ancient_Rome
[3] Pinchin and Another v Santam Insurance Co Ltd 1963 (2) SA 254
[4] http://www.deneysreitz.co.za/index.php/news/a_slow_death_for_the_nasciturus/ accessed on the 22nd February 2010.
[5] Christian Lawyers association of South Africa v The Minister of health 2004 (10) BCLR 1086 (T)
[6] Chrisholm v East Rand Proprietary Mines Ltd 1909 TH 297
[7] Constitution of the Republic of South Africa Act 108 of 1996

Tags: bct, constitutional court, law, lawblogsa, nasciturus fiction, private law, rights of child, unisa