Mtati & Pinchin Case

• Legal subjectivity


  The state of being a legal subject, i.e. having rights and obligations under the law
• Mtati decided that legal subjectivity ALWAYS begins at birth and that the nasciturus adage should be limited to the law of succession
• Nasciturus adage


  The rule that an unborn child is subsequently born alive is deemed to have all the rights of a born child whenever this is to its advantage
• Law of delict before Road Accident Fund v Mtati


  1. Two arguments:

  2. Nasciturus adage advances legal subjectivity to conception if advantageous to the nasciturus

  3. Legal subjectivity ALWAYS comes into existence at birth, nasciturus is a legal fiction
• Pinchin v Santam Insurance Co Ltd 1963 2 SA 254 (W)

  • Pregnant woman injured, child born with brain damage and cerebral paralysis
  • Court considered nasciturus adage, decided child has action to recover damages for prenatal injuries
• Pinchin decision attracted both positive and negative criticism
• Some authors felt the nasciturus adage had become redundant as legal development had advanced


  Legal development had made the nasciturus adage unnecessary
• Joubert criticised the Pinchin decision, arguing the nasciturus adage should be limited to the law of succession
• Actio ex lege Aquilia

  The action to institute a delict claim, where the elements of the delict (act, wrongfulness, culpability, causation, damage) can be separated in time and space
• Road Accident Fund v Mtati 2005 6 SA 215 (HCA)

  1. Father sued insurance company for damages to unborn child

  2. Court decided foetus is not a "person" under the Act, legal subjectivity ALWAYS comes into existence at birth

  3. Nasciturus adage should not be applied outside law of succession
• Drivers of motor vehicles can still owe a duty of care to a nasciturus, as per the Canadian case Duval v Seguin
• Nasciturus


  An unborn child, recognized in law as having certain rights and protections.
• Nasciturus adage


  A legal principle that treats an unborn child as if it were already born, whenever its interests are at stake.
• Modern legal developments


  Specific laws and legal provisions that have been established to protect the rights and interests of unborn children, making the nasciturus adage less necessary.
• Wrongful death claims


  Legal actions that can be brought on behalf of an unborn child who has been killed due to the negligence or wrongdoing of another person.
• Inheritance disputes


  Legal disputes over the distribution of property or assets that involve the rights of unborn children.