Fidocomissum

• Curator ad litem


  A person appointed by the court to protect the interests of an unconceived or unborn person in a specific case
• Statutory measures to protect the successionary interests of the unconceived or unborn

  • Immovable Property (Removal or Modification of Restrictions) Act
  • General Law Amendment Act
  • Administration of Estates Act
• Immovable Property (Removal or Modification of Restrictions) Act

  1. Beneficiary applies to court to remove or modify restriction

  2. Court can remove or modify restriction

  3. Court can order property be sold and proceeds paid to benefit unconceived or unborn
• Fideicommissum


  A clause in a testament that upon the death of the testator, the property is inherited by one person (fiduciarius) and then upon their death, inherited by another person (fideicommissarius)
• Fideicommissum example


  • Testator A leaves property to son B (fiduciarius), then to B's son C (1st fideicommissarius), then to C's son D (2nd fideicommissarius)
• Section 6 of the Immovable Property (Removal or Modification of Restrictions) Act limits fideicommissa to two successive fideicommissarii
• General Law Amendment Act


  High Court can grant permission to alienate or encumber immovable property that an unborn would be entitled to, as if the unborn was already in esse (in existence)
• Administration of Estates Act

  1. Person with usufructuary or fiduciary rights over property that a minor or unborn heir is entitled to must provide security to the Master of the High Court

  2. Master of the High Court can consent to subdivision of immovable property on behalf of a minor or unborn heir
• Is there any probability that life can be an injury? This is a piping-hot debate among lawyers, doctors, academics, theologians, philosophers, and all affected as well as interested parties.
• Wrongful birth claims


  Prenatal negligence claims brought, by the parents of a child who is born with birth defects or abnormalities, against a doctor who negligently failed to identify, diagnose, or inform the parents of the child about possible birth defects or abnormalities.
• Wrongful life claims


  Prenatal negligence claims that are brought on behalf of the child who is born with birth defects or abnormalities, against a doctor who negligently failed to identify, diagnose, or inform the parents of the child about possible birth defects or abnormalities.
• The core of both claims is that, were it not for the misconduct of the defendant (the doctor), the child would not have been born.
• Medical reality


  The existence and presence of modern, state-of-the-art technology that enables doctors to identify and diagnose children with birth defects or abnormalities before birth.
• Legal reality


  Such claim would make no sense and would be impossible without lawful access to termination of the pregnancy (that is, abortion) – otherwise, how could the wrongful birth have been prevented.
• In South Africa, if parents are informed that there is a possibility that their child will suffer from a serious medical condition or a congenital disability (birth defects or abnormalities), the mother has a choice not to give birth to the child and to terminate the pregnancy in terms of section 12(2)(a) of the Constitution and under the Choice on Termination of Pregnancy Act 92 of 1996.
• Wrongful birth claims under South African law are possible, since the parents of a child born with birth defects or abnormalities are entitled to claim patrimonial damages in circumstances where a doctor negligently failed to give the necessary medical advice.
• The position regarding wrongful life claims is different, and South African law has denied any wrongful life claims, which means that a child, after being born with birth defects or abnormalities, cannot institute a claim based on wrongful life.
• Wrongful life claims are a controversial issue, not only in South Africa, but also worldwide.
• The cases of Friedman v Glicksman (1996 (1) SA 1134 (W)) and Stewart v Botha (2008 (6) SA 310 (SCA)) are currently the benchmarks against which wrongful life claims are measured in South Africa.
• Friedman v Glicksman


  1. Mother asserted that, had she been properly informed by the specialist, she would have chosen to terminate the pregnancy

  2. Court held that a claim for wrongful life was not possible
• Stewart v Botha


  1. Parents of B who had been born with severe physical disabilities brought a claim

  2. Court concluded that the essential question that a court will be called upon to answer if it is called upon to adjudicate a claim of this kind is whether the particular child should have been born at all

  3. Court denied a claim for wrongful life
• The Fetal Assessment case is a new case that caused heated debates on whether wrongful life claims should be recognised or not under South African law.
• The Fetal Assessment case focuses on the rights of a child with regard to a cause of action occurring before birth, and on the Court's responsibility to consider the best interests of the child when developing the common law.
• The applicant argued that the common law should be developed in order to allow wrongful life claims.
• The Constitutional Court held that it was in favour of allowing the common law to be developed in the High Court and the Supreme Court of Appeal.
• The Court emphasised the importance of section 39(2) of the Constitution, which stipulates that the "spirit, purport and objects of the Bill of Rights" must be promoted when courts are developing the common law.
• The Court emphasised the importance of section 39(2) of the Constitution, which stipulates that the "spirit, purport and objects of the Bill of Rights" must be promoted when courts are developing the common law
• The overall purpose of section 39(2) is to ensure that our common law is infused with the values of the Constitution
• The obligation imposed upon courts by section 39(2) of the Constitution is extensive, requiring courts to be alert to the normative framework of the Constitution not only when some startling new development of the common law is in issue, but in all cases where the incremental development of the rule is in issue
• The legal issue in this case was not the wrongful life of the child as such, but whether the law, with due consideration of constitutional values and rights, should allow a child to claim compensation for a life with disability
• The basis for determining the viability of a wrongful life claim in this case lay in the fact that South African law, including the common law, must conform to the values and rights of the Constitution
• The specific values and rights referred to are those of equality, dignity, and children's rights with particular reference to the best interests of children that are of paramount importance in every matter concerning them
• One of the key role-players in determining whether, or to what extent, a wrongful life claim will be recognised is the kind of legal reasoning permissible in the legal culture or tradition of a country or a country's legal system
• The Supreme Court of Appeal in the Stewart case came to the conclusion that a claim for wrongful life might only succeed if a court could evaluate the existence of a child in a disabled state against the non-existence of the child, which is almost impossible
• The Constitutional Court indicated that such a comparison created "insurmountable problems at various stages of the enquiry into the elements or requirements of our law of delict – wrongfulness, causation, foreseeability in negligence and in the quantification of damages"
• The Stewart case was further criticised, since it appeared that insufficient recognition was given to the need to place the viability of the child's claim within the normative framework of the Constitution
• The existing common law as espoused by the Supreme Court of Appeal in the Stewart case did not consider whether the recognition of a wrongful life claim would be in the best interests of the child, nor did it take into account the principles of other rights contained in the Bill of Rights
• The Court stated that, even though the child does not suffer the loss of any constitutionally protected choice, the child will suffer financial loss (harm)
• Part of the wrongfulness enquiry is to determine whether there has been a breach in respect of a legal duty not to harm the claimant, or whether a breach of the claimant's rights or interests has occurred
• Section 28(2) of the Constitution expressly states that the best interests of children are of paramount importance in every matter concerning them