LAW OF PERSONS:CHAPTER 2
Beginning of legal subjectivity
When does human being become a legal subject: at birth
- Different meanings: meaning depends on legal discipline
- Criminal procedure – child born if breathed
- Registration of birth – birth of child born alive
Only a living person can be killed – not a foetus
Birth
To determine moment when human becomes legal subject
- Meaning determined by 2 common law requirements
o Separation between mother and the child
▪ Foetus no longer part of mother
o Child must have lived independently
▪ Born alive even for a short period of time
Should viability be 3rd requirement?
- Viability
o Certain stage of development that a child must reach and not be dependent on mother’s body
o Refers to state of development of the most important organs of the child
o Around 25th week of pregnancy
▪ Footnote 14: Medical science generally accepts that a foetus is viable in the 25 th week of
pregnancy
- Not requirement – problems
Criminal Procedure Act 51 of 1977
- Deals with killing of a new born child
- Child is born if have had 1st breath
- Hydrostatic test
- Right to life does not extend to criminal law
Births and Deaths Registration Act 51 of 1992
- Birth of a child born alive is intended
- Any sign of life is required and sufficient
o Therefore evidence of any sign of life must be sufficient to validate birth for the purposes of
registration
- 2 common law requirements to register birth and have legal subjectivity
1. Separation: cutting of umbilical cord
2. Child must have lived independently
Protection of the unborn’s interest
- Cannot kill a foetus
- Foetus is not a legal subject
- Before birth situations which affect the interests of the unborn may arise
- Hydrostatic test
o Cut up child’s lungs
▪ If float – born alive
▪ If sink – still born
- Law protects the unborn’s interest with nasciturus fiction
o Unborn regarded as already having been born when it is to his/ her advantage
Nasciturus fiction
- Latin word for the one about to be born
- Useful aid used where a rule which would normally apply is unsatisfactory for one reason/ another
o Rule – become a legal subject at birth
1
, - Not based on actual facts but facts which are deemed to exist
- Unborn regarded as being born at time interest accrued to him – pretend situation
- Fiction does not confer legal subjectivity on the unborn
- Only keeps interest aside until birth
- Born alive
o Legal subject
o Law assigns interest to him/her as if alive at time interest accrued
- Not born alive
o Not legal subject
o Interest falls away
- Only use in law of succession
- Does not extend to criminal law
Requirements for application of Nasciturus fiction
1. Application to advantage of unborn
2. Benefit (interest) must accrue to unborn after date of conception
3. Unborn must be born in legal-technical sense
- Refers to the two common law requirements that birth must comply with for a person to become a legal
subject
o Separation between mother’s body and child
o No dependence to live
Application possibilities in private law
Law of succession
- Interstate vs testate succession
- Interstate
o Applicable where there is no will/ valid will when someone dies
o Interstate succession act
o Rule
▪ Heir can only inherit if alive at the same time when deceased person’s estate falls open
• Stage is called delatio – usually happens when the testator is dead
▪ Occurs when a person dies
o Strict application of the role
▪ Foetus does not inherit
▪ Law protects unborn’s interest by means of fiction
- Testate (testatory)
o Applicable dies and leaves behind a valid will
o Give effect to intention of testator
o Will Act 7 of 1953
▪ Nasciturus fiction is used to negotiate a benefit for an heir in a case where the testator has
died prior to the birth of the heir but after the latter’s conception
o Intention clear – not use fiction
o Intention not clear – fiction was always used
Words “children/ grandchildren” used
- Wills Act 5 2D(1)(c) applies
o “in the interpretation of a will, unless the contrary can be proved, a benefit allocated to children or
members of a class of persons shall vest in the children/ members who are alive at the devolution of
the estate, or who are already been conceived at the time and who are later born alive”
o There exists a rebuttable presumption that a testator wants not only those children alive at the time
to benefit.
Irrebuttable Rebuttable presumption
presumption - Assumption
- Cannot be made but which
rebutted by can be rebutted
providing facts by providing the 2
to the contrary.
contrary
Beginning of legal subjectivity
When does human being become a legal subject: at birth
- Different meanings: meaning depends on legal discipline
- Criminal procedure – child born if breathed
- Registration of birth – birth of child born alive
Only a living person can be killed – not a foetus
Birth
To determine moment when human becomes legal subject
- Meaning determined by 2 common law requirements
o Separation between mother and the child
▪ Foetus no longer part of mother
o Child must have lived independently
▪ Born alive even for a short period of time
Should viability be 3rd requirement?
- Viability
o Certain stage of development that a child must reach and not be dependent on mother’s body
o Refers to state of development of the most important organs of the child
o Around 25th week of pregnancy
▪ Footnote 14: Medical science generally accepts that a foetus is viable in the 25 th week of
pregnancy
- Not requirement – problems
Criminal Procedure Act 51 of 1977
- Deals with killing of a new born child
- Child is born if have had 1st breath
- Hydrostatic test
- Right to life does not extend to criminal law
Births and Deaths Registration Act 51 of 1992
- Birth of a child born alive is intended
- Any sign of life is required and sufficient
o Therefore evidence of any sign of life must be sufficient to validate birth for the purposes of
registration
- 2 common law requirements to register birth and have legal subjectivity
1. Separation: cutting of umbilical cord
2. Child must have lived independently
Protection of the unborn’s interest
- Cannot kill a foetus
- Foetus is not a legal subject
- Before birth situations which affect the interests of the unborn may arise
- Hydrostatic test
o Cut up child’s lungs
▪ If float – born alive
▪ If sink – still born
- Law protects the unborn’s interest with nasciturus fiction
o Unborn regarded as already having been born when it is to his/ her advantage
Nasciturus fiction
- Latin word for the one about to be born
- Useful aid used where a rule which would normally apply is unsatisfactory for one reason/ another
o Rule – become a legal subject at birth
1
, - Not based on actual facts but facts which are deemed to exist
- Unborn regarded as being born at time interest accrued to him – pretend situation
- Fiction does not confer legal subjectivity on the unborn
- Only keeps interest aside until birth
- Born alive
o Legal subject
o Law assigns interest to him/her as if alive at time interest accrued
- Not born alive
o Not legal subject
o Interest falls away
- Only use in law of succession
- Does not extend to criminal law
Requirements for application of Nasciturus fiction
1. Application to advantage of unborn
2. Benefit (interest) must accrue to unborn after date of conception
3. Unborn must be born in legal-technical sense
- Refers to the two common law requirements that birth must comply with for a person to become a legal
subject
o Separation between mother’s body and child
o No dependence to live
Application possibilities in private law
Law of succession
- Interstate vs testate succession
- Interstate
o Applicable where there is no will/ valid will when someone dies
o Interstate succession act
o Rule
▪ Heir can only inherit if alive at the same time when deceased person’s estate falls open
• Stage is called delatio – usually happens when the testator is dead
▪ Occurs when a person dies
o Strict application of the role
▪ Foetus does not inherit
▪ Law protects unborn’s interest by means of fiction
- Testate (testatory)
o Applicable dies and leaves behind a valid will
o Give effect to intention of testator
o Will Act 7 of 1953
▪ Nasciturus fiction is used to negotiate a benefit for an heir in a case where the testator has
died prior to the birth of the heir but after the latter’s conception
o Intention clear – not use fiction
o Intention not clear – fiction was always used
Words “children/ grandchildren” used
- Wills Act 5 2D(1)(c) applies
o “in the interpretation of a will, unless the contrary can be proved, a benefit allocated to children or
members of a class of persons shall vest in the children/ members who are alive at the devolution of
the estate, or who are already been conceived at the time and who are later born alive”
o There exists a rebuttable presumption that a testator wants not only those children alive at the time
to benefit.
Irrebuttable Rebuttable presumption
presumption - Assumption
- Cannot be made but which
rebutted by can be rebutted
providing facts by providing the 2
to the contrary.
contrary
