The judge held that a child does have a claim for pre

The judge held that a child does have a claim for pre-natal injuries due to the existence of the
nasciturus fiction
•
○ Compensation will be payable for bodily injury or injury or death to anyone else
• S11 of the Motor Vehicle Insurance Act and Article 40 of the Multilateral Motor Vehicle
Accidents Fund:
The judge felt it necessary to apply protection to the foetus in this case •
○ It would be intolerable if the law did not grant such an action
• The question of whether the claimant has a claim in terms of MMF Art 40 must be analysed in
conjunction with the question of whether there is an action in our law for claims for pre-natal
damages
• No action would lie if injury was not sustained, and due to the fact that the elements of a
delict may be separated in time and space, the court held that one does not need to make use
of the nasciturus rule, but may use the elements of a delict, as the injury will manifest when
the child is born alive and with injury
Observations:
[11] Minister van Polisie v Ewels 1975 (3) SA 590 (A)
[Prior Conduct ( ommiso per commissionem )]
[Liability for omission: rule of law]
Facts:
DLR 320 Page 4

• The plaintiff claimed damages from the defendant on the grounds that policemen in the
service of the defendant failed to take steps to prevent him from being assaulted in their
presence
Facts:
• The appeal against the court a quo, which refused an exception against the claim, was rejected
Court:
• NB: the new test is based on an inaccurate interpretation of this case
• The appellate division rejected the viewpoint that prior conduct is indispensable
• A legal duty to act positively must be looked at in connection with the convictions of the
community
• Prior conduct may, however, be one of the factors indicating a legal duty to act
Observations:
[12] Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA)
[Prior Conduct ( ommiso per commissionem )]
• An old lady injured herself after falling into a pothole while walking home at night
• The potholes had been there for at least six months and she was aware of their existence
• The legislation in power at the time allowed but did not compel the municipality to construct
and fix pavements within the area of its jurisdiction
Facts:
• The defendant's claim was upheld in the Magistrates Court, the High Court, and the Supreme
Court of Appeal (although the appeal was criticised greatly)
Court:
• The Cape High Court has characterised the state's inability to keep the streets and pavements
in a safe condition as negligent and wrongful
• Society is hesitant to impose liability for 'minding one's own business' and as a result of this,
propositions have been made that no liability should be imposed for pure (mere) omissions
○ The reasonable person test ( diligens paterfamilias )
• One will have to make use of the test for blameworthiness ( culpa )
○ The court ruled that the good morals of society become legal duties where it is
reasonable to expect someone to act
• Is there a link between the omission, the good morals, and the legal duty?