Nasciturus

UNIT 3THE INTERESTS OF THE UNBORN CHILD (NASCITURUS) 1
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THE INTERESTS OF THE UNBORN CHILD (NASCITURUS)
Prescribed Cases
1. ex Parte Boedel Steenkamp (Case Book Pg 3)

2. Christian Lawyers Association of South Africa / The Minister of
Health (Case Book Pg 13)
3. RAF v Mtati (Case Book Pg 5)
TB pg 11
2.3 THE INTERESTS OF THE UNBORN CHILD (NASCITURUS)
Definition: A nasciturus is a conceived but unborn child.
We have seen that a person’s LEGAL PERSONALITY BEGINS

AT BIRTH, therefore, the conceived but unborn FOETUS IS
NOT A LEGAL SUBJECT and as such cannot have rights,
duties and capacities.
However, from as far back as the Roman-Dutch law, it has been

recognized that a situation might arise which is prejudicial to the
unborn foetus, had it been born alive at the time of the harm
causing event.
In other words the situation would have been beneficial to the

foetus had it already been alive at the time i.e. it would have
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been entitled to benefit under a Will, or if it harmed whilst still in

the mother’s womb and were later born with defects as a result
of this harm, it would have had an action against the wrongdoer.
The Law protects these potential interests of the unborn child,
i.e. the nasciturus by employing a FICTION THAT THE

FOETUS IS REGARDED AS HAVING BEEN BORN AT THE
TIME OF CONCEPTION WHENEVER IT IS TO THE FOETUS’
ADVANTAGE, PROVIDED THAT THE CHILD IS
SUBSEQUENTLY BORN ALIVE.
Pg 25 Guide
Students are to remember that a fiction is not a fact.
- It is an imaginary set of circumstances and a PRESUMPTION
ARISES which is not based on fact i.e. when applying the
nasciturus fiction the unborn child is regarded as a LIVING
PERSON ALTHOUGH IT HAS NOT YET BEEN BORN.
The legal position is then kept in ABEYANCE
until the nasciturus does OR It becomes certain that NO

in fact become a PERSON has developed from
PERSON. the nasciturus.
This has the result that the interests of the nasciturus are kept in
ABEYANCE until that child is born and then at birth the child
receives those interests.
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If the interest that is kept in abeyance is an inheritance, the
division of the deceased estate from whom the nasciturus is to

inherit, is delayed until the nasciturus is born. This means that
none of the other beneficiaries may inherit until such time as it is
established whether or not the foetus is born alive.
A third person may also benefit from the application of the
nasciturus fiction but only if such benefit is a consequence of the

application of the fiction IN FAVOUR OF THE NASCITURUS.
o E.g. parents of a child who would be responsible for the

maintenance of that child in the normal course of events,
would benefit if the child were able to look after itself.
The fiction may however NOT be applied if it is ONLY the 3rd
person who will benefit from its fiction.
FN 37 It is submitted by Lupton that in the case of in vitro fertilization

only those embryos that have already been IMPLANTED INTO
A WOMB should qualify for protection by means of this
nasciturus fiction.
-This means that where the egg has been fertilized and an
embryo has resulted therefrom, but it has not yet been
transplanted into the womb of a woman, the nasciturus
fiction SHOULD NOT APPLY in these instances.
Pg 25 Guide
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It is important for students to note that if the application of the
nasciturus fiction is to benefit a 3rd person it must be to the

benefit of BOTH the 3rd person and the child and cannot be only
for the benefit of the 3rd person.
e.g. If the nasciturus is to inherit a sum of money and the nasciturus dies
shortly after birth, the effect of this would be that the nasciturus’ intestate
heirs would inherit the sum of money inherited by the nasciturus. In this
instance the nasciturus’ parents would inherit. Clearly there is no benefit to
the nasciturus and a benefit only to the parents. The nasciturus fiction will
not apply. However, if the nasciturus inherits a large sum of money as
indicated above and this amount of money is sufficient to be able to support
the child and, provided the parents are unable to provide for the child’s
maintenance, this inheritance may be used for the child’s maintenance.
Clearly it can be seen that it is then both the nasciturus and the parents (the
3rd parties) who will benefit from this fiction.
In brief whenever a situation arises where it would be to the

advantage of the nasciturus if it had already been born the law
protects its POTENTIAL INTERESTS by the implementation of
the fiction that the nasciturus is regarded as having been born at
the time of his conception whenever it is to his advantage.
If it appears in a specific case that had the nasciturus already

been born he would have had certain claims or rights the legal
position is kept in abeyance until
the unborn child does in fact it becomes certain that no

become a person OR person had developed from
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the nasciturus.
Pg12 TB
NB: THE FICTION CANNOT BE USED TO PREJUDICE
THE NASCITURUS.
Pg 12 TB
2.4 THE INTERESTS TAKEN INTO ACCOUNT
In South African Law the nasciturus fiction has been applied in

the following areas of law
INTESTATE TESTATE MAINTENANCE

SUCCESSION SUCCESSION
It is important for students to note that although at common law

the nasciturus fiction was only applied in a limited manner, its
application today has been greatly extended and will be applied
in order to protect ANY INTEREST.
a) INTESTATE SUCCESSION
• What is Intestate Succession?

This means that a person has died either without
leaving a Will or leaving a valid Will.

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The deceased estate is then distributed amongst the

intestate heirs, according to our rules of intestate
succession.
• The rules of intestate succession provide that a person

can only inherit if he was ALIVE at the time that the estate
falls open. This time is known as delatio.
• Generally delatio takes place at the time that the deceased

dies.
• If this principle were to be applied strictly it would mean for

example that if a child was conceived of parents, but not
yet born, at the time when the father dies without leaving a
valid Will, this child would be unable to inherit from the
father’s deceased estate.
- This unborn foetus would clearly have had a benefit

had it been born at the time that the father died.
- If one did not employ nasciturus fiction this child

would be unable to inherit from his deceased father.
• The nasciturus fiction will therefore have the effect that

these potential interests of the unborn child are protected.
• The winding up and distribution of the deceased’s assets

will be held in abeyance until such time as
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• the child is born, o it is certain that no child

will be born.
b) TESTATE SUCCESSION
(ex Parte Boedel Steenkamp Case Book Pg 3)
What is Testate Succession?

This happens if a testator leaves a valid Will in which he
indicates how his property is to be distributed after his
death.
The deceased’s estate is then distributed according

to his wishes as indicated in his Will.
In order to determine whether an unborn child

should inherit in terms of a Will, one needs to look at the
Testator’s intention.
If the Testator’s intention is clear i.e. “I bequeath my

estate to my children A and B and any other children that
my wife expects at the time of my death” it is clear that the
unborn child is to inherit. The wishes of the Testator will be
carried out.
However, it is not always clear what the Testator’s

intention was. To this end one has to determine the
intention by using the rules of the Law of Succession.
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The following rules are applicable:
1. If the Testator leaves property specifically to A, B and C

mentioning them by NAME , while D has already
been conceived at the time of his death but has not yet
been born, D will not be able to inherit if he is
subsequently born alive. Only the beneficiaries who are
specifically mentioned in the Will will inherit as this is
clearly what the Testator intended.
2. If a Testator leaves a property to children (or

grandchildren) who are not specifically mentioned by
name but rather as MEMBERS OF A CLASS , e.g.
“my children” or “my grandchildren”, any child of that
class who was CONCEIVED at the time of the
Testator’s death but only born after the Testator’s death
will also be entitled to inherit.
e.g. A Testator leaves his estate to “my grandchildren”. C who

was not yet born but already conceived at the time of the
grandfather’s death will also inherit. The nasciturus fiction will
be invoked.
In the prescribed case of ex Parte Boedel Steenkamp, the
Testator left the residue of his estate to his daughter and

her children “who are alive at the time of my death”. At the
time of the Testator’s death his daughter had two children.
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She was however expecting a third child who was later

born alive.
The courts had to consider the question whether this child

who was later born alive could also share in the inheritance
of the grandfather.
Judge De Villiers stated that “it is common cause that a

child in its mother’s womb is presumed to be alive for the
purposes of succession, provided the child is
Pg 13 TB
subsequently born alive, AND that it is to the

advantage of the
unborn child”.
The difficulty with this particular case was the insertion of

the words “who are alive at the time of my death”. If these
words had not been inserted in the Will there would have
been no problem with regard to the nasciturus inheriting
once he had been born alive. The question was, did these
words rebut the presumption that the Testator also wished
to benefit any children born later i.e. after his death.
The judge held that these words did not rebut the
presumption and that the 3rd child who was subsequently
born was entitled to inherit.
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This case gives us a clear example of how the courts are

willing to protect the interests of the nasciturus.
Page 13 TB
Therefore a Testator who wishes to exclude any children
born after his death must clearly state this in his Will.
A Testator may even nominate an unborn or unconceived

person in a Will to inherit even if they would only be born
generations after his death.
e.g. T dies and bequeaths his farm to his son (S), subject to the
proviso that upon S’s death the farm is to devolve upon S’s eldest
son (GS). This is known as a fideicommissum. S is know as the
fiduciary and GS as the fideicommissary.
The potential interests of the unborn child in these

instances are also protected, as the Law places certain
restrictions upon the fiduciary, i.e. he may not alienate or
mortgage the property without the consent of the High
Court.
If all the fideicommissaries are MAJORS (the grandson in

the above example) and have CONSENTED to the
alienation or mortgaging of the property there is no
problem in obtaining the Court Order.
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However, if a fideicommissary is a minor who has

ALREADY BEEN BORN, the High Court must give or
withhold its consent, as the upper guardian of all minor
children.
Where the fideicommissary has not yet been born, the
Appellate Division decided in Ex Parte Swanepoel that the

Court could not give its consent in this instance as it could
not be the upper guardian of a child who did not yet exist.
TB page 14
However, the legislature subsequently enacted s33(1) of
the General Law Amendment Act 62 of 1955 which
provides that the High Court has the power to consent to
the alienation or the mortgaging
of land in which unborn persons may obtain an interest.
Therefore CONCEIVED and UNCONCEIVED persons are

now placed on an equal footing in respect of the
ALIENATION or MORTGAGE
of land in which such unborn person may obtain an interest.
It is important to note that the Court will only give its

consent if the alienation or mortgage will be to the
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advantage of ALL the beneficiaries, including those still to

be born.
A further example of how the legislature will protect the

interests of the unborn, or even unconceived child, is to be
found in The Immovable Property, (Removal or
Modification of Restrictions) Act 94 of 1965. In terms of
this Act the Court is empowered to REMOVE or MODIFY
restrictions on immovable property if they have been
imposed by a WILL OR OTHER INSTRUMENT (e.g. a
contract of donation or exchange) AND if it is to the
ADVANTAGE of an
unborn person or unconceived person
Page 14 TB
It is important for students to note that the nasciturus
fiction will only apply to persons who have already been

conceived and not to as yet unconceived persons.
Yet another example of the protection of the interests of
the nasciturus is to be found in the Administration of

Estates Act 66 of 1965, which states that if an unborn child
will after its birth become entitled to money or movable
property which is subject to somebody else’s
Usufructuary rights or Fiduciary rights

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that person must give security to the satisfaction of the

Master of the High Court for the
payment of the money, or delivery of the property
to the child after its birth.
A Testator may, in his Will, exempt a person from providing

this security to the satisfaction of the Master.
The Administration of Estates Act also provides that the

Master may CONSENT to the SUBDIVISION of LAND on
behalf of an unborn heir if this is expedient and equitable.
A Curator ad Litem will be appointed to look after an
unborn child’s interests in any legal proceeding involving

property.
c) MAINTENANCE
o Under certain circumstances the nasciturus fiction may be
used to grant a nasciturus a claim for loss of support

(maintenance) after his birth against a third person (i.e.
apart from the parents).
o In Chisholm / ERPM the Court extended the application of
the nasciturus fiction to include instances where a delict

had been committed against the nasciturus. NOTE THIS
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CASE HAS NOW BEEN OVERULED IN RESPECT OF

THE QUESTIONOF DELICT BY THE DECISION OF RAF
v MTATI
Definition: A DELICT is an UNLAWFUL and CULPABLE deed as

a consequence of which another person suffers a LOSS.
TB page 14
o In the above case a child’s father was killed prior to her
birth as a result of someone else’s delict.
o The Court held that the child, once born alive, had a
dependant’s action for damages for loss of support against

that person. The nasciturus fiction would therefore have to
be applied, which means that the legal position was be
held in abeyance until such time as the child was
born alive OR It became clear that no

person would be born alive
o The same principle obviously applies to a delict causing

the death of the child’s mother, provided of course that the
child survives the mother’s death.
TB page 15
o The Chisholm case has been critised. The reason for the
criticism is that where a delict has been committed various
elements have to be present before any delictual liability
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will arise on the part of the wrongdoer. These elements

are
1. an Act
2. Wrongfulness
3. Fault
4. Causation
5. Damage
o Because our Law of Delict does not require that the
wrongful act and the damage caused by it occur

simultaneously, it is therefore unnecessary to invoke the
nasciturus fiction in delict.
o The fact that the damage which is caused would only
manifest itself at a later point, i.e. when the nasciturus is

later born alive, would have the result that, at the point
when the damage manifests itself they would have a
delictual action against the wrongdoer, without it being
necessary to invoke the nasciturus fiction.
o In Shields v Shields, the parents of an unborn child were
getting divorced.
- As part of the divorce settlement, the parties agreed

that the father would not be responsible for the
child’s maintenance after its birth.
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- The Court refused to incorporate this clause into the

divorce order as it held that:
the mother could not and The agreement was

waive her unborn child’s contra bonos mores
right to claim (i.e. contrary to the
maintenance from the legal convictions of the
father community).
o If a woman who is pregnant gets divorced from the father
before the child is born, the court may incorporate a clause

providing for the child’s maintenance in the divorce order.
- This is not a true application of the nasciturus fiction but a
practical way of avoiding legal proceedings at a later stage.
- If it were based on the nasciturus fiction the child

would be deemed as having been born at the time of her
conception and the father would therefore have to pay
maintenance as from that date.
- This would obviously be in conflict with the equality clause in

the Bill of Rights (Chapter 2 of the Constitution) as such a
child would be entitled to maintenance for a longer period
than a child whose parents got divorced on the actual date of
its birth.
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o Furthermore, a child who has not yet been born is in any

event not yet in need of maintenance as it obtains all the
sustenance that it needs from its mother’s body. It is only
upon the child’s birth that it is in need of maintenance, e.g.
food, clothing etc.
TB page 15
2.4.2 PERSONALITY INTERESTS
Succession, both intestate and testate, and maintenance

deals with what one terms patrimonial. interests.
We will now look at the personality interests of a

foetus and will see whether these are entitled to protection.
TB page 15
Personality interests are non patrimonial and include things
such as physical integrity.
The question arises whether a foetus which is harmed
whist still in the womb as a result of the culpable act of a

3rd party as a result of a delict and is later born with a
Physical OR Brain
disability should have an action for damages or a solatium.
A solatium is (monetary) satisfaction for the infringement of a

personality right.
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This question came before our courts in the case of
Pinchin v Santam Insurance Company Limited
FACTS:
• A pregnant woman was seriously injured in a
car accident;
• Her child was subsequently born with cerebral
palsy;
• As a result of the cerebral palsy the child would
never be able to care for himself;
• The child’s father held that the brain injuries
had been caused by the negligent conduct of the
other driver (that a delict had been committed);
• The insurer of the other party’s vehicle,
Santam, admitted that the driver had been negligent;
• The father claimed in delict on behalf of the

unborn child
The legal question:

• Whether an action lies for an injury to a pre-
natal foetus
HELD
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The principles of our law are flexible enough to extend the

nasciturus fiction to the field of delict and that a child does
in fact have a claim for pre-natal injuries.
However, in this case, it was found on the facts that it had

not been proved that the brain damage had been caused
by the accident and the father was unsuccessful in his
action.
o The case had been critisised because many authors felt

that it was not necessary to extend the nascuturus fiction
into the field of delict because before any delictual liability
will arise on the part of the wrongdoer. These elements
are
6. an Act
7. Wrongfulness
8. Fault
9. Causation
10. Damage
o Because our Law of Delict does not require that the
wrongful act and the damage caused by it occur

simultaneously, it is therefore unnecessary to invoke the
nasciturus fiction in delict.
2.4.3 GUARDIANSHIP & CUSTODY

Is now regulated by S18 of the Children’s Act
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• Section 18 prescribes that a person may have

full or specific parental rights in respect of a child and that
these parental responsibilities and rights include the
• Right to care for the child
• Right to maintain contact with the child
• To act as guardian for the child
• To contribute to maintenance for the child.
GUARDIANSHIP CARE
This refers to the capacity a (formerly custody)
parent has to: This refers to controlling
the person of the child
1. administer the child’s i.e. it relates to
estate on the child’s controlling the child’s
behalf; DAILY LIFE.
and
2. to assist the child in the
performance of juristic
acts
• If a PREGNANT woman gets divorced, the

court may include in the divorce order an order regarding
the MAINTENANCE, GUARDIANSHIP and CARE in
respect of the yet unborn child.
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• This will prevent unnecessary legal costs at a

later stage.
• It is important to note that it is NOT the

nasciturus fiction which is being applied in these instances.
• The Court simply regulates the position that will

apply once the child has been born.
• Parental authority cannot come into existence

before the child’s actual birth.
• A pregnant woman can also clearly not have

parental authority over the unborn child as it is at this stage
still a part of her body.
• In the same way, the child’s father cannot have

parental authority over part of the mother’s body, being the
foetus.
• The father does not have the power to prevent

the mother from having an abortion, therefore it is
impossible for him to exercise parental authority in respect
of the foetus.
TB page 18
• In Friedman v Glicksman, Judge Goldblatt held
that a mother may not enter into a contract on behalf of
her unborn child. The reason for this is that
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Legal personality only An agent may not

begins at birth. AND enter into a contract
on behalf of a non-
existent principal.
• One cannot use the nasciturus fiction in order

for a mother to enter into a contract on behalf of the unborn
child, as this would require conferring parental authority on
the mother prior to the child’s actual birth.
• The mother cannot act as an agent on behalf of

the principal (the unborn child). The reason for this is that
if the unborn child were considered as having been born at
the time of the conception, the child would still be without
legal capacity to act as the child would be an infans.
Definition: An infans is a person from age 0 to 7 who may not

perform juristic acts, but would require the parent to perform
these juristic acts on his/her behalf i.e. a child of 3 years old
• Therefore
cannot thea contract!
enter into infans would not have the necessary
authority to grant her parent the power and authorisation to
act as her agent.
• Therefore if a parent wishes to enter into an agreement

for the benefit of his/her unborn child this would have to be
done by way of a “contract for the benefit of a 3rd party” (a
stipulatio alteri).
TB page 18
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• How does the contract for the benefit of a 3rd party

work?
o A (the parent) enters into a contract with B (a 3rd

party);
o B undertakes
to keep open an OFFER to To MAKE an offer to

contract with the unborn OR C after her birth.
child (C) after her birth
o C (the unborn child )is not a party to the contract;
o Only A and B are parties to the contract;
o Therefore it does not matter that C does not yet

exist (because C is not a party to the contract);
o C is BENEFITTED by being given the opportunity

of entering into a contract with B;
o After C’s birth A (the parent) will have parental

authority over C, and as such can
ACCEPT OR DECLINE
B’s offer ON BEHALF OF C.

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o Upon C’s acceptance of the offer a contract

comes into existence between B and C.
Example of a Contract for the Benefit of a 3rd party:

X & Y are engaged and intend to be married. They enter into
an Antenuptial Contract in which they state that any children
who are born of their marriage will become entitled to specified
property when they are born.
TB page 18
• The fact that parents cannot have parental authority
over their unborn child does not affect the application of the
nasciturus fiction in the field of succession.
• This is because the nasciturus fiction is used to

POSTPONE the distribution of the deceased estate until it
is clear whether or not a live person has been born.
• Until then the position is kept in ABEYANCE and

accordingly no action is required by the parent in respect of
the unborn child. The parent is thus not exercising any
parental authority over the child.
• Only once the child has been born would the parents
exercise their parental authority in either
ACCEPTING OR REPUDIATING
the inheritance.
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KINDLY NOTE that if the parent repudiates the inheritance, the

High Court’s consent (as upper guardian of all minors) is required.
TB page 19
2.4.4 TERMINATION OF PREGNANCY
Termination of pregnancy is not an instance where the
foetus’ interests are protected by the nasciturus fiction.
The nasciturus fiction CANNOT be used because an
ABORTED FOETUS WILL NEVER BE BORN ALIVE and

the application of the nasciturus fiction is such that the
legal position is held in abeyance until such time as a
PERSON IS BORN OR UNTIL IT IS CLEAR THAT NO
PERSON WILL BE BORN ALIVE.
Guide pg 31
Sterilisation is also an area which is NOT AFFECTED by
the nasciturus fiction.
Circumstances in which a pregnancy may be terminated
o This is regulated by the Choice on Termination of

Pregnancy Act 92 of 1996. This act has legalized abortion
in certain circumstances.
o The Act sets out the different types of consent

which are required during each stage
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During the first 12 From the 13th to 20th After the 20th Week of
Weeks of Week of pregnancy pregnancy
pregnancy
If a Medical Only if a Medical
Upon request of the Practitioner, after Practitioner, after
pregnant woman. consultation with the consultation with
pregnant woman is of another Medical
the opinion that: Practitioner,
or
1. the continued a Registered Midwife,
pregnancy would is of the opinion that
pose a risk of injury the continued
to HER physical and pregnancy would:
mental health.
1. Endanger the
2. there is a substantial woman’s life.
risk that the FOETUS
would suffer from a 2. result in the severe
severe physical or malformation of the
mental abnormality. foetus,
or
3. the pregnancy 3. pose a risk of injury
resulted from rape to the foetus.
or incest.
4. the continued
pregnancy would
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affect the woman’s

social or economic
circumstances.
During the first 12 From the 13th to 20th After the 20th Week of
Weeks of pregnancy Week of pregnancy pregnancy
The abortion may be *ONLY a Medical *ONLY a Medical
performed by a Practitioner may Practitioner may
*Medical Practitioner perform the abortion. perform the abortion.
OR
*a Registered
Midwife.
TB Page 20
Consent
The pregnant woman must give her INFORMED

CONSENT to the termination of her pregnancy.
No other person’s consent is required, which means that

even a minor does not require the consent of her parents in
order to have an abortion.
However the medical practitioner, or registered midwife

MUST ADVISE THE MINOR TO CONSULT with her
parents, guardian, family members or friends before the
pregnancy is terminated.
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If the woman is mentally disabled to the extent to that she

is COMPLETELY INCAPABLE of
understanding or appreciating
the nature or consequences
of the termination of the pregnancy

OR
she is in a state of CONTINUOUS UNCONSCIOUSNESS
without a reasonable prospect that she will regain
consciousness in time to request and consent to the
termination
AND
the gestation period is less than 21 weeks
her pregnancy may be terminated with the consent of her

Guardian or Spouse.
If the guardian or spouse cannot be found, a curator
personae may consent.
In addition to the spouse or guardian or curator, as the

case may be, TWO medical practitioners, or a medical
practitioner and a registered midwife must also consent to
the termination.
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Even where the spouse, guardian or curator consents to

the abortion, the factors listed in the table above must still
be present.
Pg 20 TB
Termination of Pregnancy Without the Woman’s Consent
• If a pregnant woman is
Mentally disabled OR Continuously

unconscious
her pregnancy may be terminated without the consent of
The pregnant Her Her spouse

woman herself guardian
We need to make a distinction between
Termination prior to week AND Termination after

21 week 21
Prior to the 21st Week the *If 2 medical
pregnancy may be practitioners
terminated provided OR
*2 medical practitioners *A medical
OR practitioner AND a
*A medical practitioner registered midwife
AND a registered midwife who has completed a
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who has completed a prescribed training

prescribed training course course
Are of the opinion that Are of the opinion that

1. it would pose a risk to the continued
the woman’s pregnancy would
Physical or Mental 1. endanger the
health, or woman’s life
2. there is a Substantial 2. result in a

risk that the foetus severe
will suffer from a malformation of
severe Physical or the foetus
Mental abnormality.
3. pose a risk of
injury to the
foetus
Students are advised to memorize the above.
TB page 21
The Foetus’ Right to Life and other Constitutional issues
surrounding Termination of Pregnancy
o A Bill of Rights was introduced into our Law firstly in the

interim Constitution which came into effect on the 27th April
1994 and was later replaced by the Constitution of 1996.
The Bill of Rights is contained in chapter 2 of our current
Constitution.
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o Prior to the introduction of the Bill of Rights, the courts

held that a foetus is not a legal subject and accordingly
does not have a right to life that can be enforced on its
behalf.
o In 1981, in Christian League of Southern Africa v Rall,

(prior to our Bill of Bights) an application for the
appointment of a curator ad litem to represent the interests
of an unborn child in all matters concerning its proposed
abortion was dismissed.
o The court held that a nasciturus is not a legal subject,

as legal subjectivity begins at birth.
o Accordingly the nasciturus cannot have rights that can

be enforced on its behalf before it is born.
o The application was dismissed.
o However, after the Bill of Rights was introduced into our

law the Choice of Termination of Pregnancy Act was
challenged on constitutional grounds, in Christian Lawyers
Association of SA v the Minister of Health.
o The constitutional point in issue was Section 11 of the

Bill of Rights which grants everyone the right to life.
VDV/am/2006
o It was argued on behalf of the Plaintiffs that human LIFE

STARTS AT CONCEPTION and that the choice of
Termination of Pregnancy Act therefore contravenes
Section 11 of the constitution as this section guarantees
the right to life.
o The Plaintiff’s sought a declaratory order striking down

the act in its entirety.
o The Defendants argued that Section 11 does not confer

any rights on a foetus.
o The court rejected the plaintiff’s argument and held that

the constitution does not
Confer legal Confer protection Qualify a woman’s

personality on on the foetus right to make
a foetus decisions about
reproduction and
her right to security
in and control
over her body in
order to protect the
foetus.
o The authors of the text book, Cronje and Heaton, point

out that there is no conflict between
VDV/am/2006
the unborn child’s AND those of the pregnant

constitutional rights woman
for the simple reason that the unborn child does not have
any rights prior to birth.
o Furthermore the authors explain why any constitutional

challenge by the father to prevent a proposed termination
of pregnancy will fail.
- This is because section 23(2)(b) guarantees to every person

the right to SECURITY IN AND CONTROL OVER HIS/HER
BODY. This would clearly include a person’s reproductive
powers.
o A woman would therefore have the final say on whether

or not she will reproduce.
o It is also submitted that the woman should have the final

say insofar as reproduction is concerned, from the point of
view of
Dignity Privacy Gender equality
TB page 23
2.4.5 STERILISATION
STERLISATION ACT 44 OF1998

VDV/am/2006
OVER THE AGE OF 18 UNDER THE AGE OF 18

Any person over the age of This may only be done if
18 who is CAPABLE OF failure to perform the
CONSENTING sterlisation would
• it is irrelevant
whether the person is * Jeopardize her life
married or not; OR
* Seriously impair her
• the consent must be given physical health.
freely and voluntarily
without any inducement;
• prior to consenting, the

procedure, consequences,
risks, nature of the
procedure must be
explained to the person
seeking the sterilisation;
• the person seeking the

sterilisation must be
informed that the consent
may be withdrawn at any
stage prior to the
sterilisation;
• consent is given on a
VDV/am/2006
particular prescribed form
If the person seeking the sterilisation cannot consent to it

due to a severe mental disability the sterilisation may only
be consented to by the person’s
Parent Spouse Guardian Curator
In the above instance an additional requirement is that a

panel consisting of a psychiatrist, psychologist or social
worker and a nurse must evaluate the desirablility of the
sterilisation.
The sterilization may then only be performed if the person

who is incapable of consenting or incompetent to consent
to the sterilisation due to a severe disability is
a) incapable of making her own decision

about contraception or sterilization, or
b) incapable of developing mentally to a

sufficient degree to make an informed decision about
contraception or sterilisation, or
c) incapable of fulfilling the parental

responsibilities associated with giving birth.
VDV/am/2006
and
the panel agrees that the sterilisation may be performed.
Obviously the panel must take all considerations into

account in order to come to their finding.
These considerations include the fact of whether the

person is 18 years or older and also whether there is any
other safe method of contraception.
TB page 24
2.5 IS THE NASCITURUS A LEGAL SUBJECT?
• We need to distinguish between
The Nasciturus Rule The Nasciturus Fiction

(Van der Merwe / Van der (Cronje & Heaton / Jordaan &
Vyver / Joubert) Davel)
o Certain authors are of o Other authors argue that
the view that the protection if a situation arises before
given to the unborn child is an unborn child’s birth
based on the nasciturus where it would have been to
rule and is not a fiction; his/her advantage had
he/she been born one
o They argue that if a should apply the nasciturus
situation arises where it FICTION to protect his/her
would be to the advantage interests;
of the unborn child had o Legal personality begins
VDV/am/2006
he/she been born. ALL THE at BIRTH, but the legal

RIGHTS that a normal position is held in abeyance
person would have must be until the nasciturus
afforded to the child. becomes a person or until it
is clear that no legal person
o The unborn child is thus has developed from the
a LEGAL SUBJECT as nasciturus.
from the date of his/her o The nasciturus fiction
conception, whenever DEEMS birth to have taken
his/her interests are at place at the time of
issue; conception when this is to
the advantage of the
o Obviously he/she must nasciturus.
be born alive.
o Legal personality begins

at CONCEPTION whenever
his her interests are at
issue..
THE END
CASES:
1. EX PARTE BOEDEL v STEENKAMP (CASE BOOK PAGE 3)

Capacity of a nasciturus to inherit
FACTS:
VDV/am/2006
• The Testator bequeathed the residue of his estate in equal

shares to his daughter and her children of the first generation
“who are alive at the time of my death”.
• At the time of the Testator’s death his daughter had two
children.
• The daughter was however pregnant at the time of his
death and subsequently gave birth to a son.
• The executor applied for a declaratory order on the issue
on whether only the grandchildren who were born at the time
of the Testator’s death could inherit, or whether the child born
after the Testator’s death could also share in the inheritance.
HELD:
o The words “children are alive at the time of my
death” do not rebut the presumption that the Testator also
wished to benefit the children born afterwards.
o There were no indications in his Will of the intended
to exclude the unborn child from any inheritance.
This case gives us a clear illustration of the unwillingness of the

Court to act to the prejudice of the nasciturus and it also shows
that a Testator who wishes to exclude a nasciturus from his Will
must state so very clearly.
2. PINCHIN v SANTAM INSURANCE COMPANY LIMITED

Nasciturus: the right to claim damages for injuries sustained pre-
natally. See discussion above
VDV/am/2006
3. ROAD ACCIDENT FUND v MTATI

The facts were similar to the facts in Pinchin. Here the mother
was involved in a collision and the foetus was injured in utero
and born brain damaged.
The court held that the ordinary principles of delict apply and it is
not necessary to extend the nasciturus fiction into the law of
delict.
4. CHRISTIAN LAWYERS ASSOCIATION OF SOUTH AFRICA /

THE MINISTER OF HEALTH (Case Book Pg 11)
The Constitutionality of Abortion
FACTS:
• The Plaintiffs sought an order declaring the Choice on
Termination of Pregnancy Act to be unconstitutional and
striking it down in its entirety.
• They argued that human life STARTS AT CONCEPTION and
as abortion terminates human life, it violates the constitutional
right to life (Section 11)
• The Defendant noted an exception to the Plaintiff’s summons
on the ground that it disclosed no cause of action.
• They argued that a foetus is not a bearer of rights because of
Section 11;
VDV/am/2006
• That Section 11 does not preclude the termination of

pregnancy in the circumstances and manner envisaged in the
Choice of Termination and Pregnancy Act;
• That a woman’s right to choose to have a pregnancy
terminated in the circumstances and manner contemplated in
the Act was protected by the right to equality (Section 9); the
right to human dignity (Section 10); the right to life (Section
11); the freedom and security of the person (Section 12); the
right to privacy (Section 14); the right to freedom of
conscience, religion, thought, belief and opinion (Section
15(1)) and the right to access to health care services including
reproductive healthcare (Section 27(1)(a))
HELD:
o The Constitution does not expressly afford the foetus legal
personality nor protection;
o one of the requirements for the protection afforded by the
nasciturus fiction is that the foetus be born alive;
o there is no provision in the Constitution to protect the
foetus pending the fulfillment of that condition;
o Had the drafters of the Constitution wished to protect the
foetus in the Bill of Rights in any way, one would have
expected this to have been found in Section 28, which
specifically protects the rights of the child;
o Section 12(2) provides that everyone has the right to make
decisions concerning reproduction and security in and control
over their own body;
VDV/am/2006
o Nowhere are a woman’s rights in this respect qualified in

terms of the Constitution in order to protect the foetus;
o To include the foetus in the meaning of the term
“everyone” in Section 11 would ascribe to it a meaning
different from that which it bears everywhere else in the Bill of
Rights;
o Under the Constitution the foetus is not a legal persona.
o Plaintiff’s particulars of claim do not make out a cause of
action and the exception succeeds.
THE END

Nasciturus

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UNIT 3THE INTERESTS OF THE UNBORN CHILD (NASCITURUS) 1

THE INTERESTS OF THE UNBORN CHILD (NASCITURUS)

1. ex Parte Boedel Steenkamp (Case Book Pg 3)

Definition: A nasciturus is a conceived but unborn child.

We have seen that a person’s LEGAL PERSONALITY BEGINS

However, from as far back as the Roman-Dutch law, it has been

In other words the situation would have been beneficial to the

been entitled to benefit under a Will, or if it harmed whilst still in

The Law protects these potential interests of the unborn child,

i.e. the nasciturus by employing a FICTION THAT THE

The legal position is then kept in ABEYANCE

until the nasciturus does OR It becomes certain that NO

If the interest that is kept in abeyance is an inheritance, the

division of the deceased estate from whom the nasciturus is to

A third person may also benefit from the application of the

nasciturus fiction but only if such benefit is a consequence of the

o E.g. parents of a child who would be responsible for the

The fiction may however NOT be applied if it is ONLY the 3rd

person who will benefit from its fiction.

FN 37 It is submitted by Lupton that in the case of in vitro fertilization

It is important for students to note that if the application of the

nasciturus fiction is to benefit a 3rd person it must be to the

In brief whenever a situation arises where it would be to the

If it appears in a specific case that had the nasciturus already

the unborn child does in fact it becomes certain that no

In South African Law the nasciturus fiction has been applied in

INTESTATE TESTATE MAINTENANCE

It is important for students to note that although at common law

• What is Intestate Succession?

leaving a Will or leaving a valid Will.

The deceased estate is then distributed amongst the

• The rules of intestate succession provide that a person

• Generally delatio takes place at the time that the deceased

• If this principle were to be applied strictly it would mean for

- This unborn foetus would clearly have had a benefit

- If one did not employ nasciturus fiction this child

• The nasciturus fiction will therefore have the effect that

• The winding up and distribution of the deceased’s assets

• the child is born, o it is certain that no child

What is Testate Succession?

The deceased’s estate is then distributed according

In order to determine whether an unborn child

If the Testator’s intention is clear i.e. “I bequeath my

However, it is not always clear what the Testator’s

The following rules are applicable:

1. If the Testator leaves property specifically to A, B and C

2. If a Testator leaves a property to children (or

e.g. A Testator leaves his estate to “my grandchildren”. C who

In the prescribed case of ex Parte Boedel Steenkamp, the

Testator left the residue of his estate to his daughter and

She was however expecting a third child who was later

The courts had to consider the question whether this child

Judge De Villiers stated that “it is common cause that a

subsequently born alive, AND that it is to the

The difficulty with this particular case was the insertion of

This case gives us a clear example of how the courts are

A Testator may even nominate an unborn or unconceived

The potential interests of the unborn child in these

If all the fideicommissaries are MAJORS (the grandson in

However, if a fideicommissary is a minor who has

Where the fideicommissary has not yet been born, the

Appellate Division decided in Ex Parte Swanepoel that the

the alienation or the mortgaging