lOMoARcPSD|4339232
Pvl1501-case summaries 2011
Law of Persons (University of South Africa)
, lOMoARcPSD|4339232
PVL1501 – Case summaries: 2014
Ex Parte Boedel Steenkamp 1962 (3) SA 954 (O)
The facts of the case are as follows:
The testator left the residue of his estate to his daughter and to the first generation “wat by datum
van dood in die lewe is”. The testator’s daughter was pregnant at the time of his (the testator’s)
death and subsequently gave birth to Paul Johannes.
The executor to the estate sought a declaratory order on the issue of whether only the children born
at the time of the testator’s death would inherit or if Paul Johannes, born after the death of
the testator, would also be able to inherit.
Curator ad litem for Gerda and Daniel Johannes (the two children already born) held that the
words “wat by datum van dood in die lewe is” is sufficient enough and without ambiguity to
exclude the unborn child from the estate.
Curator ad litem for Paul Johannes was of the opposite opinion stating that there is no evidence
that the testator wished to exclude the unborn child from his will.
The legal questions are:
1. Does the nasciturus have the legal capacity to inherit?
2. Is Paul Johannes (in ventre matris) entitled to a share of the estate?
Judge De Villiers R held that the nasciturus should be able to inherit by means of the
nasciturus fiction subject to being born alive and it being to the advantage of the nasciturus.
He further held that Paul Johannes is entitled to share in the estate of the testator in equal
amounts to his mother, brother and sister.
Judge De Villiers R referred to the decision of House of Lords in Elliot v Lord Joicey where the court
held that if the testator’s intentions are not clear, when words as “in lewe” or “gebore” are
used in conjunction with a specific time line and there is no other specific statement specifically
excluding the child in ventre matris it should be presumed that the testator had no intention of
excluding the child in ventre matris form his/her will.
, lOMoARcPSD|4339232
Road Accident Fund v Mtati 2005 (6) SA 215 (SCA)
The facts of the case are as follows:
A pregnant woman was seriously injured when a motor vehicle collided with her. The accident
was caused by negligence of the driver in question. The pregnant woman’s child (Z) was
subsequently born with brain injuries and mental disability. The father instituted a claim on
behalf of the child against the Road Accident fund.
The Road Accident Fund raised a special plea. It contended that firstly and unborn child is not a
person (legal subject) and is therefore not entitled to compensation and secondly, because an
unborn child is not a person (legal subject) the driver does not owe a duty of care to the unborn
child.
The legal question consisted of two parts, namely:
1. Does Z have a claim against the Road Accident Fund for the damages resulting from the
disabilities?
2. Should such an action be allowed by using the nasciturus fiction, or by using the
ordinary principles of delict?
The supreme court of appeal decided that it would be intolerable if our law did not grant an
action for prenatal injuries and that such an action should be based on the law of delict. The
appeal was thus unsuccessful.
The reasoning for the judgment was as follows:
The court held that, according to the ordinary principles of the law 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.
As a result of this judgment, all future claims for prenatal injuries will have to be based on the
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.
Pvl1501-case summaries 2011
Law of Persons (University of South Africa)
, lOMoARcPSD|4339232
PVL1501 – Case summaries: 2014
Ex Parte Boedel Steenkamp 1962 (3) SA 954 (O)
The facts of the case are as follows:
The testator left the residue of his estate to his daughter and to the first generation “wat by datum
van dood in die lewe is”. The testator’s daughter was pregnant at the time of his (the testator’s)
death and subsequently gave birth to Paul Johannes.
The executor to the estate sought a declaratory order on the issue of whether only the children born
at the time of the testator’s death would inherit or if Paul Johannes, born after the death of
the testator, would also be able to inherit.
Curator ad litem for Gerda and Daniel Johannes (the two children already born) held that the
words “wat by datum van dood in die lewe is” is sufficient enough and without ambiguity to
exclude the unborn child from the estate.
Curator ad litem for Paul Johannes was of the opposite opinion stating that there is no evidence
that the testator wished to exclude the unborn child from his will.
The legal questions are:
1. Does the nasciturus have the legal capacity to inherit?
2. Is Paul Johannes (in ventre matris) entitled to a share of the estate?
Judge De Villiers R held that the nasciturus should be able to inherit by means of the
nasciturus fiction subject to being born alive and it being to the advantage of the nasciturus.
He further held that Paul Johannes is entitled to share in the estate of the testator in equal
amounts to his mother, brother and sister.
Judge De Villiers R referred to the decision of House of Lords in Elliot v Lord Joicey where the court
held that if the testator’s intentions are not clear, when words as “in lewe” or “gebore” are
used in conjunction with a specific time line and there is no other specific statement specifically
excluding the child in ventre matris it should be presumed that the testator had no intention of
excluding the child in ventre matris form his/her will.
, lOMoARcPSD|4339232
Road Accident Fund v Mtati 2005 (6) SA 215 (SCA)
The facts of the case are as follows:
A pregnant woman was seriously injured when a motor vehicle collided with her. The accident
was caused by negligence of the driver in question. The pregnant woman’s child (Z) was
subsequently born with brain injuries and mental disability. The father instituted a claim on
behalf of the child against the Road Accident fund.
The Road Accident Fund raised a special plea. It contended that firstly and unborn child is not a
person (legal subject) and is therefore not entitled to compensation and secondly, because an
unborn child is not a person (legal subject) the driver does not owe a duty of care to the unborn
child.
The legal question consisted of two parts, namely:
1. Does Z have a claim against the Road Accident Fund for the damages resulting from the
disabilities?
2. Should such an action be allowed by using the nasciturus fiction, or by using the
ordinary principles of delict?
The supreme court of appeal decided that it would be intolerable if our law did not grant an
action for prenatal injuries and that such an action should be based on the law of delict. The
appeal was thus unsuccessful.
The reasoning for the judgment was as follows:
The court held that, according to the ordinary principles of the law 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.
As a result of this judgment, all future claims for prenatal injuries will have to be based on the
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.
