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PVL 1501 prescribed cases for law of persons
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PVL 1501 prescribed cases for law of persons
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2009 – prescribed cases for law of personsCase name: J v Director General, Department of Home Affairs
Facts: Woman in same-sex life partnership gave birth to twins conceived by artificial fertilisation
(other woman’s ovum & donor sperm).
Problem: Wanted twins registered as birth mother “mother” and other woman “parent”.
Director Gen. refused to register in this manner – woman applied to court for order
directing him to do so.
Attacked constitutionality of Sec 5 of Children’s Status Act – children born by
artificial fertilisation are legitimate if birth mother married – not if partner in same-
sex life partnership.
Outcome: Durban HC granted order and CC upheld finding of unconstitutionality. Court
found section 5 of the children’s status act to be unconstitutional because it did
not apply to same sex life partners who had had children as a result of artificial
fertilisation of one of their partners. The court ordered the striking out of the word
married and the reading in of the phase “or permanent same sex life partner” in
several places in that section. Now children born by artificial fertilisation of
woman partner in same-sex life partnership legitimate & registered under
surname of either partner / double-barrel surname.
Case name: Ex parte Boedel Steenkamp
Facts:
Testator left residue of estate to daughter & her children “who are alive at the time of my
death”. At time of death daughter and two of her children D & G were alive – she was
expecting another child, P – he was later born alive.
Legal question:
Can P inherit? Do the words “who are alive at the time of my death” invalidate the
presumption that testator wished to benefit children born later?
Judgment:
P could inherit.
Reason for judgment:
The words “are alive” don’t rebut the presumption that the testator intended to include the
nasciturus.
Case shows courts unwillingness to act to the prejudice of nasciturus & on other hand
shows a testator who doesn’t want a nasciturus to inherit must express that intention
clearly.
,Case name: Road Accident Fund v M obo M – also reported as “Road Accident Fund v
Mtati”
Facts:
M, father and natural guardian of Z claimed R1.3 m for Road Accident Fund (RAF).
He alleged that:
A collision took place between a motor vehicle driven by another and his wife (a pedestrian) who
sustained serious bodily injuries and as such Z was born severely mentally retarded as a result of
the injuries her mother sustained.
Claim was instituted in local division of HC.
RAF raised special plea against claim on 2 bases:
1. At time of collision, child was a foetus in uterus and not a “person” entitled to
compensation
2. A foetus in uterus is not in law regarded as a person and in the circumstances the insured
driver cannot be said to have owed a duty of care to Z.
Court a quo accepted decision of Pinchin case & dismissed special plea.
Case is an appeal against dismissal.
Judgement:
The special plea was correctly dismissed by court a quo & dismissed appeal with costs.
Reason for judgement:
It would be intolerable if our law didn’t grant an action for pre-natal injuries. The minor’s claim is
based on the damage suffered as a living person, not as a foetus. Fact that the wrongful act that
caused the damage happened before the child’s birth is irrelevant. On the ordinary principles of
the law of delict, unlawfulness & damages must not be fused – but that each is a separate
element for delictual liability.
Such a child (i.e. an unborn child / pregnant woman) falls within the area of potential danger
which the driver is required to foresee and take reasonable care to avoid.
Note: Pinchin case was decided in Witwatersrand Local Division of then the SC, while this case
was decided in SCA. Therefore, all divisions of HC are bound by this decision. Now
onwards, all future claims for pre-natal injuries will have to be based on the ordinary
principles of the law of delict and not on the NF. NF will still apply to other areas of the
law.
, Refer = Christian Lawyers’ Association v National Minister of Health
Case name: Christian Lawyers’ Association v National Minister of Health
Facts: The plaintiff argued that certain sections of the Choice on Termination of
Pregnancy Act 92 of 1996 were unconstitutional because they permitted a
woman under the age of 18 years to choose to have her pregnancy terminated
without parental consent or control
Legal Q: Whether or not a minor is in a position to make an informed decision about
whether or not to have an abortion which serves her best interests without the
assistance and/or guidance of her parents, guardians or counsellor.
Judgement: A minor could have her pregnancy terminated as long as she was capable of
giving her informed consent and indeed did so.
Reasons for Judgement: The legislature had not left the termination of a minor’s
pregnancy totally unregulated. Its foundation was the concept
“informed consent”.
Case name: Christian Lawyers Association of SA v The Minister of Health
Facts:
Plaintiffs argued that human life starts at conception & that the Choice on Termination of
Pregnancy Act contravenes Sec 11 of the Constitution of Republic of South Africa 108 of
1996, which guarantees right to life.
Plaintiff’s sought a declaratory order striking down the Act in its entirety.
Defendants excepted to Plaintiffs particulars of claim on grounds that it didn’t disclose a
cause of action because Sec 11 doesn’t confer any right on a foetus & doesn’t prevent
term of preg in circumstances & manner foreseen by the Act & that Constitution protected
woman’s right to choose to have her preg term in the circumstances and manner
contemplated by the Act.
Legal Q:
Does Choice on Term of Preg Act contravene Sec 11 of Constitution?
Judgment:
Choice on Term of Preg Act doesn’t contravene Sec 11 of Const & therefore isn’t
unconstitutional.
Reason 4 judgments:
No provision of Const bestows legal personality / protection on the foetus. Requirement
for Nasciturus rule – foetus to be born alive – no provision of Const to protect foetus
pending fulfilment of this requirement.
Also, Const doesn’t qualify a woman’s right to make decisions about reproduction & her
right to security in and control over her body in order to protect the foetus.
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