TABLE OF CONTENTS

INTRODUCTION ............................................................................................................................................. 1

Question 1 Answer .................................................................................................................................... 1

Question 2 Answer .................................................................................................................................... 6

CONCLUSION............................................................................................................................................... 10

REFERENCES ................................................................................................................................................ 11
 INTRODUCTION

This assignment consists of two questions. Question one is to determine whether

the child has an action in respect of injuries inflicted on her while she was still a
foetus in the mother’s womb and Question 2 is what order can be granted when
the wife and heirs of a missing man want to read his will and testament, what
procedure can be used and the effects of such an order are. This assignment
consists of 10 pages, excluding the cover page, table of content and reference
list.

Question 1 Answer

Facts of the matter:

 The mother was 8 months pregnant.

 The accident caused her to lose a considerable amount of amniotic fluid due to a
ruptured membrane.
 She went into early labour because of the accident and even though the child
was born alive, the child was born with cerebral palsy
 The medical doctor testified that the cerebral palsy was caused by the loss of
amniotic fluid.

Legal Issues:

 Whether the child has an action in respect of the injury inflicted on her while still
in the womb

Relevant legal principle:

 The nasciturus fiction states that legal personality begins at birth however
situations may arise before the child’s birth which would have benefitted him or

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 her had he/she been born and in this situations the law protects the interests of
the unborn child. The child must have been conceived at the time of the benefit
or at the time the accident occurred and the child must be born alive- the
application of the fiction should be for the benefit of the child and if anyone else
benefits it must be as a natural consequence.

 Case law

Firstly, in Pinchin & another No v Santam insurance co ltd 1963(2) 254 1- In a

similar case where the father maintained that the child’s brain injury was due to
the negligent injuries of the other driver and he claimed damages in respect of
medical expenses and he also claimed satisfaction for the child’s personality
rights on behalf of the child. The legal question is whether a person has action for
injuries inflicted on him/her while he or she is a foetus in the mother’s womb.
Judge Hiemstra stated that the only starting point in common law is the
nasciturus fiction. Although the fiction was commonly used in the law of
succession and the question of status, our laws are flexible and it can be applied
in the field of delict and therefore in that principle a child does have action to
recover damages for pre-natal injuries.Further, authors argued that it was not
necessary to apply the nasciturus fiction as the ordinary laws of delict would have
given the child an action for pre-natal action anyways; this is because all the
elements of delict do not need to be present at the same time therefore, it does
not matter that the conduct and its consequences do not manifest themselves at
the same time. The fact that a child’s disability only becomes evident after birth
makes no difference; this is because when an action is instituted after the child’s
birth the child is a legal subject who is suffering from a disability as a result of the
conduct of the driver, and on that basis the child has delictual claim provided of
course that the other requirements of a delict are met. Furthermore, others

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Pinchin & another No v Santam insurance co ltd 1963(2) 254

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 argued that, according to the ordinary principles of our law, an unborn child does
not have legal personality and rights that can be violated by commission of a
delict if the damage occurred before he was born and in this instance there is no
action for pre-natal injuries through a delictual claim, therefore the nasciturus
fiction has to be applied. Another argument is that in the case of pre-natal injury
the conduct and the damage actually do occur at the same time and the child
starts suffering damage when the conduct occurs prior to his or her birth. Thus
after birth the child simply continues to suffer damage and so when the child
started to suffer damage he or she was not a legal subject and therefore the
nasciturus fiction has to be applied to give the child an action for pre-natal
injury.In the case of Road Accident Fund v Mtati, a case similar to that of Pinchin
the The Supreme Court of Appeal settled the issue by holding that it is
unnecessary to use the nasciturus fiction in the field of delict to grant a child an
action in respect of pre-natal injuries and that the ordinary rules of delict should
be used to decide whether a child has a claim since the child’s delictual right of
action in respect of his or her pre-natal injuries becomes complete when the child
is born alive.2

 In the case of road accident v M obo M [2005] 3 ALL SA 340 (SCA) 3 Judge
Froneman held that it was appropriate to use the nasciturus rule- he held that a
duty of care could be owed to the foetus and the this finding would not open flood
gates for litigation like the appellant argued, the counsel of the appellant then
argued that compensation can only be paid in terms of Article 40 of the
agreement set out in the schedule to the Multilateral Motor Vehicle Accidents
Fund, Act 93 of 1989 in circumstances were the act and the injuries occurred at
the same time and since the unborn child was not a legal person at the time of

2 th
Heaton, J. 2012. The South African Law of Persons 4 Edition. South Africa, Durban: Lexis
Nexis pp 46-49 pdf format

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road accident v M obo M [2005] 3 ALL SA 340 (SCA)

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 injuries he/she cannot be compensated since the injuries occurred to the mother.
The Judge then argued that the fact that the injuries occurred before the child
was born is irrelevant and to illustrate his point of view he gave an example of a
person injured by an explosion of a time bomb placed in a room before he was
born, to support his views he referred to a decision of the Federal Supreme Court
in West Germany reported in Neue Juristiche Wochenschrift 1953, I 418 whereby
the plaintiff child was born with congenital syphilis due to blood transfusions
received by the mother as result of which she contracted syphilis and she sued
the hospital that gave those transfusions based on section 823I of the
Burgerliches Gesetzbuch which stipulates that “A person who, willfuly or
negligently, unlawfully injures the life, body, health, freedom, property or other
right of another is bound to compensate him/her for any damage arising
therefrom- It was decided that it would be intolerable if our law did not grant such
an action, the question was whether to use the nasciturus rule or the ordinary
principles of delict ( it is not only by fiction that the minor can afford action, the
ordinary principles of law and delict can be used given there is unlawfulness and
damages- no cause of action arises until the child is born so the application
should therefore be granted).4

 Law of Delict- A delict is a wrong against an individual, the wrongful act is done
intentionally or negligently and it causes harm to another. The law of delict rests
on three pillars namely; patrimonial damage, non-patrimonial injury to personality
rights, and injury to physical-mental integrity. In the above mentioned cases it
was ruled that it is unnecessary to use the nasciturus rule as the simple principle
of delict can be used.

Application of the law to the facts:

4 th
Heaton, J. 2017. Casebook on South African Law of Persons 5 edition. South Africa, Durban:
Lexis Nexis pp 19-37 pdf format.

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The mother was eight month’s pregnant when she was involved in the accident,
at this time the foetus was not a legal subject. The nasciturus fiction can be
applied since in a delictual court it can be argued that the child suffered damages
during the time the accident occurred and at that time the child did not have a
legal personality therefore he does not have an action to claim for pre-natal
injuries, but we have come to know that it is unnecessary and undesirable to use
the nasciturus fiction as the child have an action for damages for pre-natal
injuries through the law of delict, this is because; even though the child’s injuries(
cerebral palsy) is not evident at the time of the accident it became evident when
the child was born, he is suffering injuries because of the loss of the amniotic
fluid which was due the raptured membrane caused by the accident. The child’s
delictual right of action becomes complete the moment the child is born alive
therefore, the law of delict can be used as a wrong was done against this child
(accident which let to loss of amniotic fluid) and the child is suffering due to that
wrong (cerebral palsy-physical injury) which the doctor testified was caused by
the loss of the amniotic fluid, the action of the driver was either intentional or
negligent so all the elements of a delict are satisfied, therefore the child has an
action in respect of the injury inflicted on her while still in the womb.

Conclusion and advice

In conclusion, as we have seen in the case of Pinchin the child does have action
for damages for pre-natal injuries but the doctor’s testimony alone is not ground
to be afforded damages, there should be written supporting data that will prove
that the cerebral palsy was indeed due to the accident and it should be proven on
a balance of probabilities that the cerebral palsy was caused as a result of the
accident. We have learned that it is unnecessary to use the nasciturus fiction/rule
since the simple rules of the law of delict can be used and since, a wrong was
done against this child (accident which let to loss of amniotic fluid) and the child
is suffering due to that wrong (cerebral palsy-physical injury) which the doctor
testified was caused by the loss of the amniotic fluid, the action of the driver was

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 either intentional or negligent and all the elements of a delict are satisfied, we
can simple say that the child does indeed have an action in respect of the injury
inflicted on her while still in the womb, whether they will be afforded damages
rests on the merits of the case and the evidence provided.

Question 2 Answer

Facts of the case:

 Mr x has disappeared in 2009 and has been missing ever since

 The wife and children Mr x are uncertain as to whether he is alive or dead
 The Namibian police have given up on the case
 The wife would like his will and testament to be read

What order can be given for the will and testament to be read?

-An order presuming the person’s death.

Procedure of presumption of death

There are two procedures that can be used in the presumption of death, the first
one is the statutory procedure whereby section 5(2) of the Inquest Act, Act 58 of
1959 outlines that when the magistrate is of the opinion that the death of
someone is not due to natural causes he can take the necessary steps to ensure
that an inquest is held by a judicial officer in terms of section 65. If there is no
corpse and the evidence proofs beyond reasonable doubt that the person is dead

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Section 5(2) and 6 of Inquest Act, Act 58 of 1959

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 then the judicial officer should record his findings regarding the person’s identity,
likely cause of death, date of death and whether the death was due to an act or
omission and if the judicial officer cannot record such findings he must state that
fact. The records are then forwarded to the High Court that has jurisdiction in the
area where the inquest was held and the court if the court confirms the findings it
is the same as granting an order of presumption of death.

However in this particular case we will use the second procedure which is the
common law procedure as outlined below.

 Common law procedure

Firstly, the person’s surviving spouse, in this matter the wife or his heirs may
approach the High Court in the jurisdiction the missing person (husband/father)
was domiciled to grant an application of an order presuming the husband/father’s
death. The applicant must prove on a balance of probabilities that the missing
person is dead, the matter is not taken lightly hence all relevant facts or
circumstances must be brought to the attention of the court. Secondly, no fixed
period of time is required for the person to be missing (even an absence of thirty
years was considered insufficient reason, the person can therefore be
pronounced dead after a short period of time if there is a higher probability that
he is dead). As in the case of Ex Parte Estate Russell it is evident that the length
of the person’s absence is not the only factor that is taken into consideration by
the court but it can be a decisive factor. In addition, other factors that are
important include the age of the missing person (the fact that the person would
have an advanced age at the time of presumption is supporting evidence), his
trade or occupation especially whether he had a peaceful job or a
risky/dangerous job that would lead to his death for example if he worked in at a
lead factory one can say it would eventually lead to his death due to bad health
as compared to an office job, working as a secretary. Furthermore, the fact that
he was in bad health at the time of his disappearance or the fact that he had
suicidal thoughts or inclinations at that time are all contributing factors. Lastly,
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without all this evidence, the mere fact that a person was not heard from for a
number of years is not sufficient evidence to authorise the court to come to a
conclusion that he must be presumed dead. After all this facts are presented a
return date is set on which the final order will be made, the applicant is then
ordered to give a notice through the government gazette and/or newspaper
circulation in the area where the missing person used to live to enable interested
parties to object to the granting of the order or to bring further evidence to
strengthen the presumption of death. In this case the onus lies with the applicant
and not the state to proof beyond balance of probability that the missing person
is dead.6 In the case of Bezuidenhout (HC-MD-CIV-MOT-EXP-2019/00331)
[2019] NAHCMD 374 (26 September 2019), the court took into consideration the
length of period of the disappearance at the time of the application and the
circumstances of the disappearance that should lead to a conclusion that the
person died at a particular time and that the presumption of death depends on
the merits of the case at hand, the court further held that interested parties
including his should be served with the application and order and issued a rule
nisi calling upon interested parties to show reasons why the order should not be
granted.7

The effects of presumption of death

Firstly, only the High Court that has jurisdiction in the where the missing person
was domiciled at the time of his/her disappearance can make or set aside an
order presuming his/her death. However such an order is binding to the whole
world, meaning that if someone is presumed dead in Namibia then he/she is
presumed dead all over the world. Secondly, after the person has been officially
presumed dead his/her estate can be dealt with as if he was dead meaning the

6 th
Heaton, J. 2017. Casebook on South African Law of Persons 5 edition. South Africa, Durban:
Lexis Nexis pp 66-87 pdf format.

7
Bezuidenhout (HC-MD-CIV-MOT-EXP-2019/00331) [2019] NAHCMD 374 (26 September 2019),

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estate can be administered and divided amongst his/her heirs provided that the
heirs furnish security for the restoration of the property or its value should the
missing person return, if sufficient security is provided the High Court can grant
an order for the person’s estate to be divided even if there isn’t sufficient
evidence to justify granting an order for the presumption of death.
In a common law procedure an order presuming death does not automatically
dissolve/terminate a person’s marriage thus the Presumption of Death Act.Most
importantly, if a presumption of death is pronounced by the High Court it does not
mean that the person is dead, this means that the presumption is rebuttable and
therefore, the court that pronounced it may set it aside of further evidence is
produced and it becomes evident that the missing person is in fact not dead. In
this instance he/she or any interested party may approach the court for an order
that prevents further division of his/her or the person’s estate and for the order
presuming death to be set aside and therefore, anyone who has received the
benefits must return the benefits or its value and should they feel to do so they
can be sued of enrichment action (condictio indebiti) hence, it is important to
provide security for the restoration of property.8

Conclusion and advice

In conclusion, a common law procedure can be used whereby the wife or the
children can make an application at the High Court in whose jurisdiction Mr X
was domiciled to grant an order presuming Mr x is dead. The number of years Mr
X has been missing from home is not sufficient evidence to proof on a balance of
probabilities and the fact that the police have given up on the case that Mr X is
dead and therefore, is not sufficient evidence for the court to grant an order
presuming Mr X dead, all the information with regards to Mr X should be brought

8 th
Heaton, J. 2012. The South African Law of Persons 4 Edition. South Africa, Durban: Lexis
Nexis pp 66-72 pdf format.

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forward and presented at court, for example his age at the time of his
disappearance, the type of job (whether it presented any risk to his health) he
was doing and his mental state (whether he was suicidal), whether he has any
other family and whether he tried to contact any of his children during any time.
However, we have learned that provided that the wife and the children provide
sufficient security for the restoration of the properties or its value, the court can
grant an order for the properties to be divided and can even appoint someone to
administered the last will a testament even if there isn’t sufficient evidence to
grant the order for presumption of death and if evidence does show up that Mr X
is not dead then an application can be made to stop the division of property and
set aside the order for presuming him dead thus whoever benefited from his
estate can give back the benefits or its value.

CONCLUSION

In conclusion, after looking at the nasciturus rule and fiction and looking at the
law of delict I am of the opinion that a child has an action for injuries inflicted on
him or her while he/she was a foetus in the mother’s womb. Further I have
learned that when someone is missing the surviving spouse or children can make
an application at the High Court where such person was domiciled to grant an
order for presumption of death for his will and testament to be read and for his
assets to be divided but such order is rebuttable if new evidence comes up that
proves that the person is not dead and for people to inherit in such an instance
they need to provide security for properties or its value in case the missing
person comes back.

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 REFERENCES

Ex Parte Bezuidenhout (HC-MD-CIV-MOT-EXP-2019/00331) [2019] NAHCMD 374 (26

September 2019)

Ex Parte Pinchin & another No v Santam insurance co ltd 1963(2) 254

Ex Parte road accident v M obo M [2005] 3 ALL SA 340 (SCA)

Heaton, J. 2017. Casebook on South African Law of Persons 5th edition. South Africa,
Durban: Lexis Nexis pp 19-87 pdf format.

Heaton, J. 2012. The South African Law of Persons 4th Edition. South Africa, Durban:
Lexis Nexis pp 46-72pdf format.

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