Wrongful Life Claims: A Failure to Develop the Common Law?

• Jurisdiction: South Africa
• Date: 16 August 2019
• Published date: 16 August 2019
• Pages: 527-539
• Author: Carmel van Niekerk
• Citation: (2012) 23 Stell LR 527

527

WRONGFUL LIFE CLAIMS: A FAILURE TO

DEVELOP THE COMMON LAW?

Carmel van Niekerk

LLB LLM

Lecturer, University of the Western Cape

1 Introduction

During the pa st sixteen years South Af rica has shown itself to be qu ite

exible in its ability to adapt itself to t he demands of it s new Constit ution1

and the values underlying it. It has done so on nu merous occasions, some of

which are more noteworthy than ot hers. Of the more noteworthy occasions

that come to mind is the Mak wanyane judgment 2 in which the Constitutional

Court invalidat ed the death penalty her alding a new dawn for the right s to

human dignit y, equality a nd freedom and security of the per son. Another such

occasion was the promulgation of the Choice on Termination of Pregna ncy

Act 92 of 1996 which recognised the rights of women to dictate what shou ld

happen to their bod ies and also giving them a sen se of dignity i n doing so. In

more recent years, same sex par tnerships have also be en recognised.3 T his

again is a victory for the r ights to equality a nd human dignity. These li mited

examples serve as a testa ment to the fact that South Africa has not shied away

from its responsibilit y to uphold the values entrenched in its Const itution. In

many of the instances wher e the courts have been called upon to uphold these

values they have done so in a manner wh ich entails a development of the law

to bring it into align ment with the dictate s of the Constitution. The evidenc e

seems to speak for itself: in most ca ses where the law has been in ne ed of

reform, our cour ts have not been unwilling to play thei r role. There are of

course a number of exceptions. One such except ion pertains t o our courts’

unwillingne ss to recognise the delict ual claim of wrongful l ife, despite its

willingness t o recognise similar claims which stem f rom the same set of facts.

Its reasons for doing so are questionable.

This art icle therefore aims to examine the ju risprudence i n South Africa

on wrongful life claim s. It, in particula r, aims to examine the ma nner in

which such claims have been dealt with as well as the r easons provided for

its non-recognition. The ju risprudence availa ble are both pre- and post-

Constitutional in n ature and while it is understa ndable that the former decision

1 Constitut ion of the Republic of South Af rica, 1996

2 In its fir st decision ever in S v Mak wanyane 1995 3 SA 391 (CC) the Constitu tional Court con sidered the

impact of keepi ng prisoners on death row a nd found that it violates thei r inherent right to dig nity T he

court acc ordingly declared t he death penalty to b e unconstituti onal and order that al l death sentences be

reconsidere d and substitute d for life sentences

3 In the decision of Min ister of Home Affairs v Fou rie 2006 1 SA 524 (CC) the Constit utional Court fou nd

that legislat ion which failed to m ake provision for t he recognit ion of same-sex u nions was unc onstitut ional

and accordingly needed to be remedied

(2012) 23 Stell LR 527

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