"Wrongful life" - the Constitutional Court paved the way for law reform

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.