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Class Discussion
LEGAL MEMORANDUM – TOPIC 1 MEMO
TO:
FROM:
DATE:
SUBJECT: ALLY BEAL

1. STATEMENT OF FACTS

Ally Beal was involved in a motor vehicle accident whilst pregnant with her daughter, Candice. The
accident was as a result of the negligence of the driver of the other vehicle involved. Candice at
the age of 1 and ½ years, has not showed signs of talking. Medical reports indicate that Candice is
deaf as a result of a blow to her head whilst she was still in Ally’s womb.

2. QUESTION PRESENTED

2.1 Does a child have an action for pre-natal injuries she suffered as a result of the culpable act
of a third party?
2.2 Does the nasciturus fiction apply or do the ordinary principles of the law of delict apply?
2.3 Does Ally have a claim against the Road Accident fund?

3. SHORT ANSWER

3.1 Yes [state short reason]

3.2 The ordinary principles of the law of delict apply.
3.3 Yes [state short reason]

4. APPLICABLE LAW

In Pinchin v Santam Insurance Ltd,1a pregnant woman was seriously injured in a motor vehicle
accident and her child was subsequently born with cerebral palsy and thus child would never be

1
1963 (2) SA 254 (W).
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able to care for himself. The father, on behalf of the child, claimed satisfaction for the infringement
of a child’s personality rights.2

The legal question in Pinchin case was whether a person has an action for injury that was inflicted
on him/her while s/he was still a foetus in his/her mother’s womb.3 Hiemstra J in Pinchin case
looked at common law and found that the protection of interests of foetus were found in nasciturus
fiction.4 The court held that Nasciturus fiction could be extended to the field of delict and thus a
child does have an action to recover damages for pre-natal injuries.5

This is a controversial judgment and authors’ are of the opinion that the Pinchin case could have
been solved without bringing the nasciturus fiction into the issue at all, as the ordinary principles of
the law of delict would give the child an action for pre-natal injuries anyway.6 The requirements of
conduct and damage are met even if the disability from which the child suffers after birth was
caused by the conduct of the driver before the child’s birth. The fact that the child’s disability only
becomes evident after birth makes no difference: when the 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 a delictual claim.

The opposing view held by some authors is that the nasciturus fiction must be applied in order to
give an action for pre-natal injury. The argument is that an unborn child does not have legal
personality and therefore has no rights that can be infringed by a delict and thus in order to afford
the unborn child an action, his/her legal personality must accordingly be pre-dated to before his/her
actual birth so that s/he has legal personality at the time of the conduct causing the injury.7

In Road Accident Fund v Mtati8 the SCA settled the matter by holding that it is unnecessary to use
the nasciturus fiction to grant a child an action in respect of pre-natal injuries. In the Mtati case a
pregnant woman was injured in a motor vehicle accident and her child was subsequently born with
brain damage and a mental disability and thus father instituted action against the Road Accident
Fund as he alleged that the accident caused the injuries.9

2
Pinchin v Santam 255A-B.
3
Pinchin v Santam 255B.
4
Pinchin v Santam 255D-H.
5
Pinchin v Santam 260B.
6
Cronje and Heaton The South Africa Law of Persons (2008) 16-18; Annual Survey of SA Law “Law of Persons and
Family Law” 164-165; Heaton Casebook on the South African Law of Persons 3ed (2003) 6-10.
7
Ibid.
8
2005 (6) SA 215 or [2005] 3 All SA 340 (SCA).
9
Road Accident Fund v Mtati 218C-E.
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The Fund contented that the child is not a person and is therefore not entitled to compensation and
that because an unborn child is not a person, a driver does not owe a duty of care to an unborn
child.10 The court a quo accepted the decision of Pinchin and dismissed11 the Fund’s special plea
and thus the Fund appealed to the SCA.

The SCA dismissed the appeal and held that the ordinary rules of the law of delict should be used
to determine whether the child has a claim. It was held that the child’s delictual right of action in
respect of his/her pre-natal injuries becomes “complete” when the child is born alive and thus it is
unnecessary and undesirable to employ the nasciturus fiction in the field of the law of delict.12

5. APPLICATION OF LAW TO THE FACTS

Candice was injured whilst still in her mother’s womb and subsequently was born with hearing and
speech impairments. The Mtati case is the leading case dealing with pre-natal injuries and thus
sets a precedent as to the question of whether children with pre-natal injuries have a claim in delict
or not. Candice thus has a delictual claim provided that all the requirements for delictual claims
are met.

6. SUMMARY AND RECOMMENDATION

The facts are the Ally’s case are similar to those of the Mtati case. Ally as Candice’s mother will be
able to take action against the Road Accident Fund based on the ordinary principles of the law of
delict as the right of action of the child became available when she was born alive.

10
Road Accident Fund v Mtati 218I-J.
11
Road Accident Fund v Mtati 221E.
12
Road Accident Fund v Mtati 224-226