The Gateway of Birth

What it asks

Three questions: WHO is a legal subject? WHEN does personality begin and end? HOW do personal attributes affect capacity? SA is a mixed system — Roman-Dutch common law, modified by legislation, transformed by the Constitution.

Subjects & Objects

A legal subject bears rights and duties — natural persons (humans) and juristic persons (companies, the State). A legal object is a thing over which rights are held; it holds no rights of its own.

Four Classes of Rights

• Real rights — over corporeal things (ownership)
• Personal rights (claims) — performance owed by another
• Personality rights — life, body, dignity, fama, privacy
• Immaterial property — copyright, patents, trademarks

The Capacities

• Legal (passive) capacity — hold rights; every person from live birth
• Capacity to act — perform valid juristic acts (create, alter, end legal relationships)
• Capacity to litigate — sue or be sued in one's own name
• Accountability — responsibility in delict and criminal law

Status

Status = the bundle of capacities. Modifying factors: age, mental condition, marriage, insolvency, prodigality, intoxication, disability, domicile.

Sources of Obligations

• Contract — liability voluntarily assumed; remedies: specific performance, cancellation, damages
• Delict — a civil wrong requiring conduct, wrongfulness, fault, causation and damage; actions: actio legis Aquiliae (patrimonial loss), actio iniuriarum (personality), action for pain and suffering
• Unjustified enrichment — a shift of value without legal cause (sine causa) which must be reversed

Succession in a nutshell

Testate succession follows a valid will; intestate succession (Intestate Succession Act) applies where there is no valid will. A beneficiary must generally have personality at the relevant time — the key exception being the nasciturus fiction. Succession is the bridge between the beginning and the end of personality.

Live + Complete birth

Personality begins at birth if
(1) the birth is complete — full separation from the mother — and
(2) the child lives after separation, even briefly. Signs: Separation · Lived · Breathed. No viability or minimum survival required; the cord need not be cut.

Registration records, not creates

The Births and Deaths Registration Act 51 of 1992 requires registration within 30 days — but registration records personality; it does not create it. Whether a child was born alive is a question of fact (the hydrostatic test post-mortem).

The foetus & termination

A foetus is not a legal subject and has no enforceable right to life against the mother. The Choice on Termination of Pregnancy Act 92 of 1996 permits lawful termination (Christian Lawyers' Association).

Naming & parentage

A birth is registered under a surname and given name(s) (changeable later under the Act). Maternity is usually self-evident from the birth; paternity may be shown by a presumption (the pater est presumption for a married mother), admission, or DNA evidence, which a court may order under the Children's Act 38 of 2005.

What it is

The nasciturus fiction protects the interests of an unborn but already-conceived child by treating it, in law, as if it had already been born — but only where that is to the child's benefit, and only once it is in fact born alive.

The three requirements (memorise)

• CONCEIVED — the child must already have been conceived at the relevant time (e.g. when the will took effect, or when the harm occurred)
• BORN ALIVE — the child must later be born alive (alive, even momentarily, after complete separation from the mother)
• ADVANTAGE — the fiction is applied only where it benefits the child, never to its disadvantage

How it works

While the child is unborn the benefit is held in suspense; on live birth it vests retrospectively, as though the child had been a legal person all along. If the child is stillborn, the fiction never operates and the benefit falls away.

Where it applies — succession

Its classic home is succession, in both forms. Intestate: the division of the estate is postponed until the child is born; if born alive it inherits as if it had been alive at the death (Ex parte Boedel Steenkamp). Testate: s 2D(1)(c) of the Wills Act 7 of 1953 presumes that a bequest to a testator's 'children' (or a class) includes those already conceived at the death who are later born alive — unless the will shows a contrary intention.

Where it applies — delict

The fiction was historically extended to delict for prenatal injuries (Pinchin v Santam), but RAF v Mtati held the fiction is not needed in delict — ordinary delictual principles suffice once the child is born alive. The fiction is therefore now mainly a succession tool. It is not used to award prenatal maintenance.

Its limits

The fiction does NOT give the foetus legal personality — an unborn child is not a legal subject and has no s 11 (Constitution) right to life (Christian Lawyers Association). It simply suspends a benefit until live birth, and can never be used to the child's disadvantage.

Incorporation

Juristic persons (companies, close corporations, universities, the State) acquire personality by a legal act of incorporation or statute — e.g. a company on registration under the Companies Act 71 of 2008. Once incorporated, it is a subject with its own rights, duties and estate, separate from its members.

Animals & the environment

Animals remain legal objects, not subjects — but they are protected by animal-welfare legislation and the environmental right (s 24 of the Constitution). The law imposes duties on humans regarding their treatment.