“Wrongful Life” – The Constitutional Court Paved the Way for Law Reform

• Jurisdiction: South Africa
• Date: 27 May 2019
• Pages: 399-423
• Author: Trynie Boezaart
• Published date: 27 May 2019

“WRONGFUL LIFE” – THE CONSTITUTIONAL

COURT PAVED THE WAY FOR LAW REFORM

Trynie Boezaart

BA (Law) LLB LLD

Professor in and Head of the Department of Private Law, University of Pretoria*

1 Introduction

The “wrongfu l life” action is a widely debated topic in South Af rica and

abroad.1 In South Africa, acade mic discourse escalat ed after the Stewa rt v

Botha2 cases.3 The Western Cape Division of the High Cou rt very recently4

had the opport unity to revisit the mat ter in C J H v The Kingsbur y Foetal

Assessment Centre ( Pty) Ltd (“C J H”),5 but unfortunately ma de a ruling at

the exception phase. The mother in t he Kingsbury case has since lodged an

application for leave to appeal in the Constit utional Court. Judgement wa s

handed down in the Const itutional Cour t on 11 December 2014 paving the

way for law reform.6

When analysing the body of scholarsh ip on the issue intern ationally,

matters are complicate d by the difference in ter minology used in the various

jurisdictions. It is therefore nece ssary to conceptualise and cr itically evaluate

the terminology t hat is used when the availability of th is remedy has to be

established. The un fortunate labels that have been used to ident ify the remedy

will have to be addresse d.

* This mater ial is based upo n work supporte d financi ally by the Nationa l Research Found ation. Any

opinion, f indings and conclus ions or recommenda tions expressed in t his material ar e those of the author

and therefore t he NRF does not acc ept any liability i n regards theret o.

1 See PF Louw “‘Wrongfu l Life’: ’n Aksie Gebaseer op die O nregmat ige Veroorsaking v an Lewe”

(1987) 2 TSAR 199 205-206; E de V Hugo Th e Actions for Wrongfu l Life, Wrongful Birth a nd Wrongful

Conceptio n – A Comparative St udy from a South Af rican Perspect ive LLD Thesis, Unive rsity of Pretoria

(1999) 410; SCJJ Kortmann “Geld Voor Leven Sc hadevergoeding Voor ‘Niet Beoogd’ Leven” i n SCJJ

Kortman n & BCJ Hamel (eds) Wrongful Bir th en Wrongful Life (2004) 5 6; E El lis & B McGivern “The

Wrongfulne ss or Rightfu lness of Actions for Wrongful Life” (20 07) 15 Tort L Rev 1 2; R Perr y “It’s

a Wonderful Life” (20 08) 93 Cornell L Rev 329 335; the entire issue of the 2010 Jour nal of European

Tort Law was dedica ted to “wrongful bir th” and “wrongful li fe”; I Giesen “The Use and Inf luence of

Comparative L aw in ‘Wrongful Life’ Case s” (2012) 8 Utrecht L Rev 35 36.

2 Fi rst in 2007 6 SA 247 (C) and then in t he SCA: 2008 6 SA 310 (SCA). The other South Afric an cases on

this issue ar e Friedman v Glicksma n 1996 1 SA 1134 (W) and (now also) H v Fetal A ssessment Centre

2015 2 SA 193 (CC).

3 A Mu kheibir “Wron gful Life – The SCA Ru les in Stewar t v Botha (340/2007) [20 08] ZASCA 84 (3

June 2008)” (2008) 29 Obite r 515 516-518 ; C Chürr “A Delictual Clai m Based on ‘Wrongful Life’: Is it

Possible?” (2009) 72 THRHR 16 8 169-174; I Gie sen “Of Wrongful Birth , Wrongful L ife, Comparative

Law and the Politics O f Tort Law Systems” (2009) 72 THRHR 257 258; S Human & L Mil ls “The

Immeasu rable Wrongfulness of B eing: The Denial of the Cla im for Wrongful Life” (2010) 1 Stell LR 67

68; C van Niekerk “Wrongf ul Life Claims: A Failu re to Develop the Com mon Law?” (2012) 3 Stell LR 527

533.

4 T he SCA was wrong (in Stewart v Botha 2008 6 SA 310 (SCA) para 15) when it stated t hat there “are

hardly novel conte ntions” to be raised i n this debate.

5 Refe rred to as CJ H v The Kingsbury Foet al Assessment C entre WCC 24-04-2014 case number 4872/2013.

6 H v Fet al Assessment Cen tre 2015 2 SA 139 (CC).

399

(2015) 26 Stell LR 399

© Juta and Company (Pty) Ltd

Further more, the wrongful li fe debate may be described as a multi faceted

one: it for instance concerns t he elements of the delict in question, and much

has been said about the de nition of those elements and specically of

wrongfulne ss and the development of the common law (or the lack thereof)7

in this par ticular context. The most rece nt decision of the High Court in the

C J H case8 was decided at the exception stage and was m ainly based on the

argument that t he convictions of the community h ave not changed since the

Stewart v Botha case.9 It has therefore to be ass umed that Baar tman J was of

the opinion that the concept of wro ngfulness had not u ndergone substantial

changes during the p ast few years. However, this assumption could be wrong

and therefore some developments regarding policy consider ations will be

briey explored. Establishing the loss suffered has also enjoyed some attention

in both case law10 and academic discourse11 and wil l be referred to in passing.

The question that will b e considered in some depth is whether t he scope of

the general principles u nderlying child law has been adequ ately discounted

in both the local and the i nternational debate on t his topic. There have been

enormous developments in child law and one could exp ect those developments

to have i nuenced the debate. When viewed from this angle, the absence of

the acknowledgement of the Convention on the Rights of the Ch ild (“CRC”)12

in the wrongfu l life debate becomes apparent and it is therefore imperative to

establish whether it has a contr ibution to make. Likewise, developments in

disability law might be relevant seei ng that the Convention on the Rights of

People with Disabilities (“CRPD”) has since bee n adopted. The Constitutional

Court paved the way for developing the law of delict in line with the

Constitution of the Republic of South Afr ica, 1996 (the “Constitution”) and

the principles of our law of delict will have to be scr utinised.

2 Tussling with terminology

Different scenar ios are sometimes wrapp ed up in and sometimes even

clouded by similar sets of facts. In the rst scenario, the parents decided not to

have anymore children. They t ook control of their reproductive rights and the

7 Van Nieke rk (2012) Stell LR 527.

8 P ara 29.

9 T he court referred to Lou reiro v iMvula Quality Prot ection (Pty) Ltd 2014 3 SA 394 (CC) para 56 to

illustrat e the link betwe en policy considera tions and wrongf ulness in delict , para 28.

10 Harriton v S tephens (2006) 226 CLR 52 pa ra 87; Stewart v Botha 2007 6 SA 247 (C) para 29.

11 Kortma nn “Geld Voor Leven Scha devergoeding Voor ‘Niet B eoogd’ Leven” in Wrong ful Birth en

Wrongful Life 16-17 explai ns the well-est ablished “diffe renz” theor y comparing the position th at the

child is in, wit h the position if the unl awful act or omission ha d not occurred in t his particular co ntext.

The fact that t his method to es tablish loss can not be utilise d in this case d ue to the fact that t he child would

not have been bor n at all if the doctor g ave the advice as could h ave been expected of h im or her, leads the

author to conclud e that the remedy should not b e granted. (More on t his comparison in p ara 8 1 below.)

See how JM Potgiete r, L Steynberg & T Floyd Visser & Potg ieter: Law of Damages 3 ed (2012) 31 take

pains in expla ining that on ly loss to legally recog nised intere sts qualifie s as damage empha sising the fact

that the object of t he interests has t o be legally recogni sed needs. This is w hy, according to them, a ch ild

cannot claim d amages for being a llowed to be born wit h disabilities. Howe ver, the same argu ment may in

my view be used to a rgue that the child l ives and suffers due t o the physician’s unlawfu l act.

12 Convention on the R ights of the Child (adopt ed 20 November 1989, entered int o force 2 September 1990)

1577 UNTS 3.

400 STELL LR 2015 2

© Juta and Company (Pty) Ltd