Private law 171 case summaries
2017
lecturers:
Dr. D Horsten
Dr. L Mills
By Margaux Tison
This document is the intellectual property of the author, Margaux Tison. The unlawful distribution of this document or any part of this document
without the author’s explicit consent is a violation of the author’s intellectual property rights and constitutes plagiarism. Passing these documents
and the included information therein constitutes intellectual property fraud and the perpetrator may be held liable for this in a court of law. All rights
reserved.
,Fouché v Battenhausen and co. 1939
Facts:
Defendant’s father met Mr. Van Der Mescht (VDM) to discuss on exchanging a
Dodge car and some money for a second-hand Chevrolet
o Def’s father pledged to pay VDM £30 as soon as his sheep were sheared
o Def’s father said his son (defendant) would pay the rest in monthly installments
Defendant: minor
Defendant explicitly told VDM’s attorney that he was a major
Chevrolet was delivered to Def’s Father’s farm
Father was aware of all the material terms of the contract
Def’s mother got sick and this was costly – he did try to cancel the contract but this
didn’t work
o Def’s father spoke to VDM and they agreed that only £15 had to be paid after
shearing season, instead of £30
Def and his father traveled with the car quite far
Def’s mother died
o Subsequently the defendant tried to claim restitutio in integrum.
Contract was prejudicial to minor, not beneficial
Legal question: how far is the defendant’s right to use the claim of restitutio in integrum
affected by his fraud?
Judgement:
Claim of restitutio in integrum continues from the court a quo, so the appeal is
dismissed
Reasoning:
The minor verbally said he was a major, but the other party in the contract should
not have taken his word for truth, especially if he was suspicious of how young the
defendant looked – he should have asked for proof so it is his own fault for not
checking up on things.
Road Accident Fund v Mtati 2005 (6) SA 215 (SCA)
1
,Facts:
Pregnant woman was seriously injured when a car drove into her (she was a
pedestrian)
accident due to negligent driving
Pregnant woman’s child (Z) born with brain damage
Child’s father (Mtati) instituted claim on behalf of child against the Road Accident
Fund (RAF).
RAF raised special plea:
o unborn child isn’t a legal subject and is therefore not entitled to
compensation
o because an unborn child isn’t a legal subject, driver doesn’t owe a duty of
care to unborn child.
Legal question: Does Z have claim against RAF for damages (disability) and should such a
claim be allowed by using nasciturus fiction, or normal principles of delict?
Judgement:
SCA: it would be intolerable if our law didn’t grant a claim for prenatal injuries and
that such an action should be based on the law of delict.
Appeal unsuccessful.
The reasoning:
according to ordinary principles of delict, unlawfulness and damage are separate
elements for delictual liability and that the child’s delictual right of action becomes
complete when he/she is born alive.
The assertion that the driver of the vehicle did not owe Z a legal duty because she
had not yet been born must be rejected.
all future claims for prenatal injuries will have to be based on ordinary principles of
the law of delict and not on the nasciturus fiction. The nasciturus fiction will still
apply to other areas of the law.
Christian Lawyers Association of SA V The Minister of Health 1998
2
, Facts:
Christian Lawyer’s Association (CLA) sought order declaring the Choice on
Termination of Pregnancy Act of 1996 unconstitutional.
Plaintiff: “life begins at conception; therefore, abortion is in violation of s11 of the
Constitution”
Defendants: “fetus is not a bearer of rights in terms of s11 of the Constitution.”
Judge: if the drafters of Constitution intended to protect the fetus, specific reference
to the protection would’ve been made in the BOR.
legal question: Does the wording “everyone” / “every person” in the Constitution include a
fetus (as a legal subject), from moment of conception?
Judgement:
Fetus is not a legal subject
Choice on Termination of Pregnancy Act not unconstitutional
Ex Parte Pieters 1993 (3) SA 379 (D)
3
2017
lecturers:
Dr. D Horsten
Dr. L Mills
By Margaux Tison
This document is the intellectual property of the author, Margaux Tison. The unlawful distribution of this document or any part of this document
without the author’s explicit consent is a violation of the author’s intellectual property rights and constitutes plagiarism. Passing these documents
and the included information therein constitutes intellectual property fraud and the perpetrator may be held liable for this in a court of law. All rights
reserved.
,Fouché v Battenhausen and co. 1939
Facts:
Defendant’s father met Mr. Van Der Mescht (VDM) to discuss on exchanging a
Dodge car and some money for a second-hand Chevrolet
o Def’s father pledged to pay VDM £30 as soon as his sheep were sheared
o Def’s father said his son (defendant) would pay the rest in monthly installments
Defendant: minor
Defendant explicitly told VDM’s attorney that he was a major
Chevrolet was delivered to Def’s Father’s farm
Father was aware of all the material terms of the contract
Def’s mother got sick and this was costly – he did try to cancel the contract but this
didn’t work
o Def’s father spoke to VDM and they agreed that only £15 had to be paid after
shearing season, instead of £30
Def and his father traveled with the car quite far
Def’s mother died
o Subsequently the defendant tried to claim restitutio in integrum.
Contract was prejudicial to minor, not beneficial
Legal question: how far is the defendant’s right to use the claim of restitutio in integrum
affected by his fraud?
Judgement:
Claim of restitutio in integrum continues from the court a quo, so the appeal is
dismissed
Reasoning:
The minor verbally said he was a major, but the other party in the contract should
not have taken his word for truth, especially if he was suspicious of how young the
defendant looked – he should have asked for proof so it is his own fault for not
checking up on things.
Road Accident Fund v Mtati 2005 (6) SA 215 (SCA)
1
,Facts:
Pregnant woman was seriously injured when a car drove into her (she was a
pedestrian)
accident due to negligent driving
Pregnant woman’s child (Z) born with brain damage
Child’s father (Mtati) instituted claim on behalf of child against the Road Accident
Fund (RAF).
RAF raised special plea:
o unborn child isn’t a legal subject and is therefore not entitled to
compensation
o because an unborn child isn’t a legal subject, driver doesn’t owe a duty of
care to unborn child.
Legal question: Does Z have claim against RAF for damages (disability) and should such a
claim be allowed by using nasciturus fiction, or normal principles of delict?
Judgement:
SCA: it would be intolerable if our law didn’t grant a claim for prenatal injuries and
that such an action should be based on the law of delict.
Appeal unsuccessful.
The reasoning:
according to ordinary principles of delict, unlawfulness and damage are separate
elements for delictual liability and that the child’s delictual right of action becomes
complete when he/she is born alive.
The assertion that the driver of the vehicle did not owe Z a legal duty because she
had not yet been born must be rejected.
all future claims for prenatal injuries will have to be based on ordinary principles of
the law of delict and not on the nasciturus fiction. The nasciturus fiction will still
apply to other areas of the law.
Christian Lawyers Association of SA V The Minister of Health 1998
2
, Facts:
Christian Lawyer’s Association (CLA) sought order declaring the Choice on
Termination of Pregnancy Act of 1996 unconstitutional.
Plaintiff: “life begins at conception; therefore, abortion is in violation of s11 of the
Constitution”
Defendants: “fetus is not a bearer of rights in terms of s11 of the Constitution.”
Judge: if the drafters of Constitution intended to protect the fetus, specific reference
to the protection would’ve been made in the BOR.
legal question: Does the wording “everyone” / “every person” in the Constitution include a
fetus (as a legal subject), from moment of conception?
Judgement:
Fetus is not a legal subject
Choice on Termination of Pregnancy Act not unconstitutional
Ex Parte Pieters 1993 (3) SA 379 (D)
3
