LEGAL SUBJECTIVITY
THE BEGINNING OF LEGAL SUBJECTIVITY
Usually at “birth” (in certain circumstances at conception but the term
birth remains the pivotal factor)
Birth
This term can convey different meanings:
Criminal procedure act 51 of 1977, section 239(1): with regard to the
killing of a newborn child, it is accepted that the child has been born if
it has breathed. Restrictive interpretation: life is dependent on the
presence of one sign of life=breath
In terms of Births and Deaths Registration Act, section 1(1): at birth
the child must be born alive. Presence of a specific sign of life is not
required. Therefore, any sign of life will be sufficient to validate the
birth for the purposes of registration
Importantly the term “birth” is used to indicate the moment of the
origin of legal subjectivity
Common law requirements:
1. the fetus is separate from the mother’s body for the birth to be
considered complete (cutting of the umbilical cord need not take
place). Additionally, scientific aids or death of the mother, does that
affect this requirement.
2. The fetus must have lived independently after separation even if
only for a moment. Therefore, a stillborn fetus or a fetus that has
died during the birth process does not have legal subjectivity. Here,
any sign of life serves as evidence. Medical evidence is used to
determine if the child breathed, post-mortem investigation such as a
hydrostatic test. Some authors refer to viability, this means the child
must have reached a certain stage of development within the
mother’s body, i.e. the most important organs have developed to
such degree that a child could live independently, with or without
aids. Viability should not be regarded as separate requirement and
should be taken into account.
The need to determine the scope of the term “birth” is important
E.g. Legal succession: testator bequeaths his farm to his daughter on
condition that she gives birth to a boy but he’s dead at birth. The
hydrostatic test reveals the child has breathed therefore the child has
gained legal subjectivity and she has fulfilled the testator’s condition
and has a claim to the farm. If no signs of breathing are found, there is
no testamentary claim. Hence the importance of determining when
legal subjectivity has begun.
Protection of Unborn’s Interests
1. Protection by means of nasciturus fiction
- When it is to the unborn’s advantage to be regarded as already having
being born. Therefore, this adagium (Nasciturus pro iam nato habetur
quotiens de commodo eius agitur) adopts the view that legal
THE BEGINNING OF LEGAL SUBJECTIVITY
Usually at “birth” (in certain circumstances at conception but the term
birth remains the pivotal factor)
Birth
This term can convey different meanings:
Criminal procedure act 51 of 1977, section 239(1): with regard to the
killing of a newborn child, it is accepted that the child has been born if
it has breathed. Restrictive interpretation: life is dependent on the
presence of one sign of life=breath
In terms of Births and Deaths Registration Act, section 1(1): at birth
the child must be born alive. Presence of a specific sign of life is not
required. Therefore, any sign of life will be sufficient to validate the
birth for the purposes of registration
Importantly the term “birth” is used to indicate the moment of the
origin of legal subjectivity
Common law requirements:
1. the fetus is separate from the mother’s body for the birth to be
considered complete (cutting of the umbilical cord need not take
place). Additionally, scientific aids or death of the mother, does that
affect this requirement.
2. The fetus must have lived independently after separation even if
only for a moment. Therefore, a stillborn fetus or a fetus that has
died during the birth process does not have legal subjectivity. Here,
any sign of life serves as evidence. Medical evidence is used to
determine if the child breathed, post-mortem investigation such as a
hydrostatic test. Some authors refer to viability, this means the child
must have reached a certain stage of development within the
mother’s body, i.e. the most important organs have developed to
such degree that a child could live independently, with or without
aids. Viability should not be regarded as separate requirement and
should be taken into account.
The need to determine the scope of the term “birth” is important
E.g. Legal succession: testator bequeaths his farm to his daughter on
condition that she gives birth to a boy but he’s dead at birth. The
hydrostatic test reveals the child has breathed therefore the child has
gained legal subjectivity and she has fulfilled the testator’s condition
and has a claim to the farm. If no signs of breathing are found, there is
no testamentary claim. Hence the importance of determining when
legal subjectivity has begun.
Protection of Unborn’s Interests
1. Protection by means of nasciturus fiction
- When it is to the unborn’s advantage to be regarded as already having
being born. Therefore, this adagium (Nasciturus pro iam nato habetur
quotiens de commodo eius agitur) adopts the view that legal
