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

JurisdictionSouth Africa
Date16 August 2019
Published date16 August 2019
Pages527-539
AuthorCarmel 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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