Abstract:
The so-called “wrongful life” action is a widely debated topic in South Africa and abroad. In South
Africa academic discourse escalated after Stewart v Botha 2007 6 SA 247 (SCA). The recent Western
Cape decision of the High Court in C J H v The Kingsbury Foetal Assessment Centre (Pty) Ltd case
number 4872/2013 (WCC) 24 April 2014 and the subsequent appeal to the Constitutional Court in that
matter call for a review of the development of our common law regarding the child’s remedy in delict
to ensure that it is in line with our Constitution. As the Kingsbury matter was decided at exception
stage, the record was such that the Constitutional Court granted leave to amend the particulars of
claim, referred the matter back and provided guidance to the High Court to reconsider the merits.
This contribution recommends a new stance on the child’s remedy in light of the direct and indirect
application of our Constitution, applicable international law and last but not the least, the Children’s
Act 38 of 2005. It is recommended that this delictual remedy should rid itself of its inappropriate
name and take its rightful place within the framework of our generalised law of delict. The facts of
each case will then determine whether only patrimonial loss or patrimonial and non-patrimonial loss
should be claimed.
