Part 1

Pinchin v Santam Insurance co ltd

This authority is the leading one for the view that legal subjectivity usually comes into
existence at birth. The summary of the case goes like this. The woman who was about
six months pregnant was involved in a car accident due to the negligence of the driver
that was insured by the company. Due to the incident, the pregnant woman lost a lot of
amniotic fluid, but the birth went on a usual. Later, when the baby was about four
months old, he was diagnosed with brain damage syndrome. The medical practitioner
showed the evidence which proves that the syndrome was indeed the results of a loss
of amniotic fluid at the accident. The question was that if the nasciturus have a claim for
the injuries he suffered when he was a fetus.
The authors like Joubert come to conclusion that indeed the legal subjectivity usually
comes to existence at birth. Some author opposed the decision. The author stated that
the nacriturus does not apply to the law of succession as I do to the mtati case. He also
stated that all the element must be met for law of succession to apply.
The decision was taken through cases like Road Accident Fund v Mtati. The case made
it easier for them to come up with facts and solution, however Joubert claimed that the
court can apply to the law of delict, and the five elements must be met for it to succeed.
The fact was also that the acts of the driver was separate in space and time.
 Part 2: mind

Should the nasciturus

adage be extended?

Joubert view

Yes, so that t case advantage the

nascriturus in caliming for pre-natal
damages

The five elements of Law of delict

must be met in order for it to
apply.
The application of nacriturus
must be limited to the law of
succession.

The act of driver was separated

with time