NASCITURUS FICTION EXPLAINED

a href=”http://lawblogsa.files.wordpress.com/2013/01/nas.jpg”>nas

I was trying to help a fellow student understand the nasciturus fiction in a way that wouldnt confuse him.I failed. So i went online in an attempt to rectify this travesty of justice!! Lone and behold i came across this nugget of information which explains the fiction in a way even a lay man could understand.
It includes important cases and the crux of the argument.

“The term ‘birth’ can have many different meanings in terms of our law. Our legal system is based on Roman-Dutch law and thus it will be a viable point to look at how these systems have looked at law during their time as well. Lastly I will make mention of recent cases in which ‘birth’ has been used as a point of argument with the aim of illustrating how the law looks at the term in the modern day.

In ancient Rome birth registration was not compulsory, but it could be used for proof of age, however, this proof was not sufficient to prove a persons’ age in many cases[1].in ancient Rome there was no penalty for not registering births and the people that were not registered were not disadvantaged[2].

In South African law today, a term known as the Nasciturus fiction exists which was derived from the Roman law[3]. The nasciturus fiction and the nasciturus rule are two different rules, the nasciturus rule provides that whenever there is a situation which would have been to the advantage of the foetus if she was already born, all rights that are conferred on persons that are already born alive, are also conferred on the foetus, the foetus then becomes a legal persona and carries legal capacity from the date of conception. The child does not have to be born alive[4]. In the case of Pinchin and Another v Santam Insurance Co Ltd 1963 (2) SA 254 (W) the father of a child born with cerebral palsy, claimed that an accident which involved the pregnant mother of the child, caused the injuries which the child now suffers. This is one of the ways that the law looks at ‘birth’. Before birth, the foetus still does not have the right to life because the foetus is not a bearer of rights and duties[5].

In the case of Chrisholm v East Rand Proprietary Mines Ltd 1909 TH 297 a child’s father was killed prior to the child’s birth as a result of another persons’ delict. The court then held that the child has a right of action against this person that caused this delict. The child had an action for loss of support but this action has the prerequisite, namely, that the child must be born alive[6]. The Chrisholm case was the first case in which the nasciturus fiction was extended to the law of delict.

In terms of section 9(3) and (4) constitution of South Africa (Act 108 of 1996)[7] no person may be discriminated against in terms of their ‘birth’ (amongst other forms of discrimination) this can be in the form of people discriminating against the fact that you were born in a public hospital. The constitution makes a point of protecting the many people in our society and against discrimination against birth is one of those protected forms of discrimination.

As we can see, the law regarding birth has developed considerably over time, from not having to register the birth of a person to having to register a person within 30 days in terms of our law. In terms of cases, some people have even tried to apply the nasciturus fiction in the law of delict. The term birth definitely has more than one meaning in our law.” CLS

what you think? was this helpful to any of you Private Law students?
HERE are two cases….Raf v mac nasciturus fiction SCA
VAN HEERDEN V JOUBERT NASCITURUS FICTION<

tlg

[1] http://en.wikipedia.org/wiki/Birth_registration_in_Ancient_Rome
[2] http://en.wikipedia.org/wiki/Birth_registration_in_Ancient_Rome
[3] Pinchin and Another v Santam Insurance Co Ltd 1963 (2) SA 254 (W)
[4] http://www.deneysreitz.co.za/index.php/news/a_slow_death_for_the_nasciturus/ accessed on the 22nd February 2010.
[5] Christian Lawyers association of South Africa v The Minister of health 2004 (10) BCLR 1086 (T)
[6] Chrisholm v East Rand Proprietary Mines Ltd 1909 TH 297
[7] Constitution of the Republic of South Africa Act 108 of 1996

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29 comments

  1. Really amazing post, highly enlightening and skilled professionals written.. Good Work

  2. Thanks a lot…this is very helpful. Excellent work

  3. Schalk · · Reply

    Thank you very much. Now I also understand what is expected of us at UNISA…

  4. Nkemiseng Makopo · · Reply

    The explanation was somehow sufficient, but I wish there were more court cases

  5. i have added two cases to this post….raf v mtati and van heerden. Both SCA cases dealing with the fiction.

  6. thank you so much, my little sister is doing her first unisa assignment and this article has helped us out.

    1. its a pleasure, and thanks for dropping in

  7. trevor · · Reply

    what an incredible job,it is a job welldone indeed!

  8. Brilliant article. Insightful

  9. faith.ruramai · · Reply

    thanx alot..helpful for some of my assignment questions

    1. happy to help. thanks for checking it out.
      what year you in?
      tlg

  10. u r a ginius;thanks

    1. thanks…its gEnius. but ill take it :D

  11. Its helpful

  12. Reblogged this on rdkreative and commented:
    Reading up on Law of persons so this article was great to delve into the tht part of the law

  13. Thanks , I’ve just been searching for information about
    this topic for ages and yours is the greatest I
    have discovered till now. However, what in regards to the conclusion?
    Are you certain concerning the supply?

  14. joocy vee · · Reply

    Thanks for the clerification.

    If I may ask.

    Angelas husband zola has been missing for a long time last year the court granted an application for an order presuming him 2 be dead.

    1, Angela wants 2 know if zolas estate maay be divided among his heirs. She also wants to know what will happen regarding his estate if he is not dead and returns at a later stage

    2, Angela wants to know if she will be able to get remarried now that a presumption of death order has been granted. Explain the procedure to her. In your answer you have to refer to authority.

    Please answer. ASAP

    1. thanks for visiting
      please note! i did not create this site/blog in order to answer your questions for you. i have provided relevant case law, notes, study guides ect… all the information is there for you to answer these questions on your own.

      besides, im not allowed to answer your questions for you. That would results in trouble for both you and me and any other person who decides to copy the answer.

      i do not take responsibility for any answers posted on this blog.
      i will never provide answers for assignments or work of that nature

  15. you the best

  16. Good day! This is my first visit to your blog! We are a collection of volunteers and starting
    a new project in a community in the same niche. Your blog
    provided us useful information to work on. You have done a wonderful job!

    1. Thank you for visiting :)

  17. that incredible thank you

  18. According to UNISA textbooks, “the nasciturus fiction says that the unborn child is regarded as having been born when his/her interests are at stake” :)

cmon reply, it is more fun if you contribute :D

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