1 33 the nasciturus rule provides no solution to

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Unformatted text preview: the plaintiff.’ [32] Furthermore I do not find Boberg’s criticism of Joubert’s timebomb example particularly helpful. What if the bomb had gone off, leaving a dangerous crater into which two people subsequently fell? Each person would have an action only when he or she fell and suffered damage, not before.1 [33] The nasciturus rule provides no solution to cases such as the German case of the mother who was negligently infected with syphilis before she conceived her child, who was subsequently born with congenital syphilis. Such a case also, in my view, cries out for a remedy and a theory which denies one should not be accepted. 2 [34] Furthermore the application of the nasciturus rule led to what was clearly, in my view, an unjust result in Stevenson NO v Transvaal Provincial Administration, supra. In that case a man was killed in consequence of what was alleged to be the negligence of the Provincial Administration. More than six months after his death the mother of his children, wishing to institute proceedings on behalf of her children for loss of support, applied, inter alia, for 1 See also in this regard the useful discussion of the views of Professors Joubert and Boberg by Craig Lind ‘Wrongful-Birth and Wrongful-Life Actions’ (1992) 109 SALJ 428 at 440-443. 2 See also Lind op cit 442-443. 22 condonation of her failure to institute the proceedings in the prescribed period. It was held that, as action had not been commenced within the period laid down in s 5 of the Roads Amendment Ordinance 10 of 1931 (Transvaal), the application had to fail, even in respect of a child born after his father’s death and within the relevant period. Greenberg J, with whom Tindall AJP and De Wet J concurred, said (at 85): ‘The question when the cause of action matured depends firstly on the nature of the claim. In Union Government v Lee (1927, A.D. at 222) it was held that in a case of this kind the compensation claimable is due to third parties who do not derive their rights through the deceased or from his estate, but from the fact that they have been injured by the death of the deceased and that the defendant is the person responsible for such death. I think it follows that these rights can only accrue in favour of an entity who is a person either in fact or by a fiction of law at the time when the act of the defendant complained of is committed. According to Maasdorp’s Institutes of Cape Law, vol 1 p. 1 and the authorities there cited, an unborn infant, provided it is afterwards actually born, is sometimes by a legal fiction regarded as already born, in so far as such presumption will be for its benefit. Mr Maisels sought to use this proviso in support of his case and contended that it would not be for the benefit of the minor concerned if it were presumed to have been born on the date of conception, i.e., before the death of the deceased, and that the fiction should not be invoked. But it appears to me that it is only by the aid of the fiction that this minor has a cause of action at all. If at the date of respondent’s 23 negligence the minor was in existence neith...
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