THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

REPORTABLE

Case number : 340/07

In the matter between :

ELIZABETH GEORGINA ELZONA STEWART
FIRST APPELLANT
BRIAN STEWART

SECOND APPELLANT

and

DR M BOTHA

FIRST RESPONDENT
DR S SMAL

SECOND RESPONDENT

CORAM :

STREICHER, NUGENT, HEHER, CACHALIA JJA et
SNYDERS AJA
DATE :

21 MAY 2008
DELIVERED :
3 JUNE 2008

Summary:
Delict – liability of medical practitioner to a child born with
congenital defects – failure to inform mother who would have
terminated pregnancy – wrongfulness – legal policy.

Neutral citation:
Stewart v Botha  (340/2007) [2008] ZASCA 84 (3 JUNE 2008)

SNYDERS AJA/

SNYDERS AJA:

[1] The appellant and his wife have a son, Brian, who was born on 4 August
1993 with severe congenital defects.  These included a defect of the lower spine
which adversely affects the nerve supply to the bowel, bladder and lower limbs1 as
well as a defect of the brain2. The appellant’s wife, as first plaintiff, instituted an
action in the Cape High Court against the respondents, respectively the general
medical practitioner and specialist obstetrician and gynaecologist whom she
consulted during her pregnancy, for her special damages relating to the
maintenance, special schooling, past and future medical expenses consequent upon
her son’s condition. The appellant, as second plaintiff, on behalf of his minor son,
instituted a delictual claim in the alternative to that of the first plaintiff for the same
damages. It is acknowledged that the main claim would be good in law, if it is still
enforceable, and thus the same damages now claimed would be recoverable by the
child’s parents.  The respondents excepted to the appellant’s claim, which was
upheld by Louw J, who dismissed the appellant’s claim with costs. With the leave of
that court the matter came on appeal to this court.

[2] In the particulars of claim it is alleged that the respondents, whilst treating the
first plaintiff during her pregnancy, were under a duty to detect any abnormalities in
the foetus, to advise the first plaintiff thereof, who would have undergone a
termination of pregnancy and consequently that Brian would not have been born and
would not have suffered from the severe physical handicaps that he does.

[3] The first respondent excepted to the appellant’s claim on the basis that it
does not disclose a cause of action, particularly as there is no duty on the first
respondent to ensure that Brian was not born and that a claim that recognises such
a duty would be contra bonos mores. The second respondent alleged in his
exception that the appellant’s claim is ‘bad in law, contra bonos mores and against
public policy’.

1 In medical terms known as lumbo-sacral myelomeningocele, commonly referred to as spina bifida.
2 In medical terms known as hydrocephalus.

[4] It is for the excipient to satisfy the court that the conclusion of law pleaded by
the appellant cannot be supported by any reasonable interpretation of the particulars
of claim.3  For this purpose the facts pleaded in the particulars of claim are accepted
as correct.4  There was no dispute between the parties that this approach was
correct or that exception was not the appropriate stage at which to decide this
matter.5

[5] The exceptions dispute the wrongfulness of the failure by the respondents to
have detected and informed the first plaintiff of congenital defects in the foetus she
was carrying. As there has been a considerable amount of recent debate6 on the
subject and to provide focus in the current enquiry, it is necessary to revert back to
the starting point in our law of delict when wrongfulness is to be decided. In
Telematrix (Pty) Ltd v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) at
468 the following is stated:
‘[12]  The first principle of the law of delict, which is so easily forgotten and hardly appears in any local
text on the subject, is, as the Dutch author Asser points out, that everyone has to bear the loss he or
she suffers. The Afrikaans aphorism is that “skade rus waar dit val”. Aquilian liability provides for an
exception to the rule and, in order to be liable for the loss of someone else, the act or omission of the
defendant must have been wrongful and negligent and have caused the loss. But the fact that an act
is negligent does not make it wrongful although foreseeability of damage may be a factor in
establishing whether or not a particular act was wrongful. To elevate negligence to the determining
factor confuses wrongfulness with negligence and leads to the absorption of the English law tort of
negligence into our law, thereby distorting it.
‘[13]  When dealing with the negligent causation of pure economic loss it is well to remember that the
act or omission is not prima facie wrongful (“unlawful” is the synonym and is less of a euphemism)
and that more is needed.  Policy considerations must dictate that the plaintiff should be entitled to be
recompensed by the defendant for the loss suffered (and not the converse as Goldstone J once
implied unless it is a case of prima facie wrongfulness, such as where the loss was due to damage
caused to the person or property of the plaintiff.)  In other words, conduct is wrongful if public policy

3 Minister of Law and Order v Kadir 1995 (1) SA 303 (A) at 318D-E;  First National Bank of Southern
Africa  Ltd v Perry NO 2001 (3) SA 960 (SCA) at 965 para 6.
4 Marney v Watson 1978 (4) SA 140 (C) at 144F-G;  Trustees, Two Oceans Aquarium Trust v Kantey
& Templer (Pty) Ltd 2006 (3) SA 138 (SCA) at 143I-J.
5 See further Telematrix (Pty) Ltd v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) at
465G-466A on the suitability of this approach in certain circumstances.
6 Anton Fagan ‘Rethinking wrongfulness in the law of delict’ (2005) 122 SALJ 90;  J Neethling ‘The
conflation of wrongfulness and negligence: Is it always such a bad thing for the law of delict?’ (2006)
123 SALJ 204;  R W Nugent ‘Yes, it is always a bad thing for the law: A reply to Professor Neethling’
(2006) 123 SALJ 557.

considerations demand that in the circumstances the plaintiff has to be compensated for the loss
caused by the negligent act or omission of the defendant.’

[6] The enquiry as to negligence and wrongfulness is separate and distinct and
should not be confused as to terminology or substance.7

[7] Negligent conduct that causes physical damage to the person or property of
another is prima facie wrongful.  However, ‘. . . the element of wrongfulness
becomes less straightforward . . . with reference to liability for negligent omissions
and for negligently caused pure economic loss. . . In these instances, it is said,
wrongfulness depends on the existence of a legal duty not to act negligently. The
imposition of such a legal duty is a matter for judicial determination involving criteria
of public or legal policy consistent with constitutional norms.’8

[8] The application of criteria of public and legal policy has created precedent for
the imposition of liability that caused pure economic loss.9  When there exists no
precedent, as in the present case, the process involves ‘. . . policy decisions and
value judgments which “shape and, at times, refashion the common law [and] must
reflect the wishes, often unspoken, and the perceptions, often dimly discerned, of
the people” (per M M Corbett in a lecture reported sub num “Aspects of the Role of
Policy in the Evolution of the Common Law” in (1987) SALJ 104 at 67). What is in
effect required is that, not merely the interests of the parties inter se, but also the
conflicting interest of the community, be carefully weighed and that a balance be
struck in accordance with what the Court conceives to be society’s notions of what
justice demands.’10  This approach, since the advent of the Constitution, is to be
supplemented and enriched by the imperatives embodied in the Constitution.11

[9] Claims arising from a similar context, although distinctly different, have
received legal recognition on accepted principles and norms in our courts and many

7 Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) at 144
para 11;  Telematrix at 469B-E;  R W Nugent at 558.
8 Trustees, Two Oceans Aquarium Trust at 144B-C.
9 Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A);  Indac
Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (AD);  Mukheiber v Raath 1999 (3) SA
1065 (SCA).
10 Minister of Law & Order v Kadir 1995 (1) SA 303 (A) at 318E-H.
11 Olitzki Property Holdings v State Tender Board 2001 (3) SA 1247 (SCA) at 1257D-F.

international jurisdictions. In Pinchin v Santam Insurance Co Ltd 1963 (2) SA 254
(W) the action of a child to recover damages for an injury done to it whilst in utero
was recognised. The claim by parents, against a hospital that agreed and failed to
perform a surgical tubal ligation in order to render the mother sterile, for the cost of
maintaining and supporting a child that was born afterwards,12 was granted in
Administrator, Natal v Edouard 1990 (3) SA 581 (A). The claim of a mother against a
medical practitioner for not having detected and informed her of the congenital
defects in her foetus which she would have aborted13 had she known was
recognised in Friedman v Glicksman 1996 (1) SA 1134 (W) and survived the
exception taken against it. In the same case a claim of the child, the same as is
presently under consideration, received the attention of a South African court for the
first time and was refused on public policy considerations.

[10] In these cases the claim that arose and was awarded was that of the parents
who sought to recover the additional financial burden they had to bear in
consequence of the negligence. There is no question in those cases of the essential
dilemma that arises in the case before us, as it is not questioned in those cases
whether the child would have been better off not to have been born. Those cases
commence with an acceptance of the fact that the birth has occurred and seeks to
address the consequences of the birth.

[11] At the core of cases of the kind that is now before us is a different and deeply
existential question:  was it preferable – from the perspective of the child – not to
have been born at all? If the claim of the child is to succeed it will require a court to
evaluate the existence of the child against his or her non-existence and find that the
latter was preferable.

12 Claims of this nature have been referred to as ‘wrongful birth’, ‘wrongful pregnancy’ and ‘wrongful
conception’ claims in contrast to the ‘wrongful life’ claims which is the one involved in the present
case. Although the use of this terminology is unfortunate and has been widely criticised for that
reason, it is persistently used as a convenient reference. For the criticism of the use of these terms
see the minority judgment of Kirby J in Harriton v Stephens (2006) 226 CLR 52. I consciously refrain
from using it in this judgment.
13 This claim is also referred to in literature and judgments as ‘wrongful birth’ claims.

[12] There are courts that have embarked on this enquiry. By far the majority of
jurisdictions worldwide have refused claims of this nature.14  The leading case in
England, McKay v Essex Area Health Authority [1982] QB 1166 (CA) did so on an
analysis of the common law and also interpreted the Congenital Disabilities (Civil
Liability) Act 1976 (UK) to be prohibitive of such claims. Common law jurisdictions in
Canada, Australia15 and Singapore have refused claims of this nature, but in Israel,
in the matter Zeitsov v Katz (1986) 40 (2) PD 85 (Isr) the child’s claim was granted.

[13] In continental jurisdictions16 the trend is similar, but Holland in the matter
Leids Universitair Medisch Centrum v Molenaar no. C03/206, RvdW 2005, 42
provided the exception. Interestingly, during the period 1996 until 2001 French
courts allowed such claims.  This resulted in political pressure from groups
representing disabled people, who advocated the view that the courts in these
decisions treated their lives as inferior to non-existence, and groups representing
gynaecologists, obstetricians and ultra-sonographers. The political pressure
ultimately resulted in legislative reaction when on 4 March 2002 an act was passed
that placed France in line with the majority of jurisdictions in the world.

[14] In the United States of America the refusal of the claim in the matter Gleitman
v Cosgrove 49 NJ 22 (1967) represented the conventional view for many years until
the Appellate Division of the New York Supreme Court, in Park v Chessin 400
N.Y.S. 2d 110 (1977) allowed a claim of this nature for special damages whilst at the
same time refusing a claim for general damages. Thereafter the Supreme Courts of
California,17 Washington18 and New Jersey19 followed suit.

14 For a very helpful summary of worldwide decisions in claims of this nature, see Ronen Perry ‘It’s a
Wonderful Life’ Cornell Law Review 93 (2008) 329.
See further Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at 444 para
16 on the relevance and role of decisions in foreign jurisdictions on the consideration of public policy
in a case.
15 The most recent and much discussed decision in Australia being that of Harriton v Stephens (2006)
226 CLR 52 which was decided 6:1 in favour of refusing the claim.
16 A thorough discussion on the relevant issues involved pertaining to a decision by the
Bundesgerichtshof (sixth Civil Division) appears in B S Markesinis The German Law of Torts 3 ed
p142.
17 Turpin v Sortini 31 Cal 3d 220 (1982).
18 Harbeson v Parke Davis Inc 98 Wash 2d 460 (1983).
19 Procanik v Cillo 97 NJ 339 (1984).

[15] The nature and extent of the debate that has been raging is apparent from the
cases and articles referred to and many more.20  The debate illustrates that for every
argument there has been a counter argument and vice versa and there are hardly
novel contentions being raised. Like Omar Khayam I have heard ‘Great Argument
About it and about: but evermore Came out by the same Door as in I went.’  In view
of the conclusion that I have arrived at I do not think it necessary to evaluate all the
arguments. I intend to refer to the most significant issues in the debate only to
demonstrate the kind of difficult questions that arise.

[16] Whilst bearing in mind that the negligence of the medical practitioners did not
cause the congenital defects, the starting point of the enquiry was aptly stated in the
matter Speck v Finegold 408 A 2d 496 at 508 para 7 and 512:
‘Whether it is better to have never been born at all rather than to have been born with serious mental
defects is a mystery more properly left to the philosophers and theologians, a mystery which would
lead us into the field of metaphysics, beyond the realm of our understanding or ability to solve. The
law cannot assert a knowledge which can resolve this inscrutable and enigmatic issue.’ (per
Cercone J)
‘If it were possible to approach a being before its conception and ask it whether it would prefer to live
in an impaired state, or not to live at all, none of us can imagine what the answer would be. . . We
cannot give an answer susceptible to reasoned or objective valuation.’ (per Spaeth J)

[17] The critics of this argument refer to the function often performed by courts of
law to assess damages in difficult cases like pain, suffering and loss of amenities of
life. This counter argument does not address the real challenge, namely that it is
impossible to assess the harm caused, not merely difficult, because it is essential to
such a decision that the court finds that non-existence is preferable to life.

[18] As a further development to that argument it is often stated that delictual
damages seek not so much to punish the wrongdoer, but to compensate the plaintiff
by seeking to place him or her in the position he or she would have been in if the
negligence did not occur. If the negligence did not occur the child would not have
been born, which brings one back to the questionable assessment.

20 Evelyn Ellis and Brenda McGivern ‘The wrongfulness or rightfulness of actions for wrongful life’
(2007) 15 Tort L Rev 135 provides a recent collation of authorities;  See also Ronan Perry supra.

[19] It has often been argued that allowing the claim would open the door to
claims by children against their mothers in circumstances where the mother has
been informed of the congenital defects but chose not to terminate the pregnancy.
The counter argument is that it is inconceivable that a mother’s choice not to avail
herself of her right under certain circumstances to terminate the pregnancy21 would
be regarded as unlawful.  Furthermore, allowing a claim against one category of
defendants could not offer a principled basis on which to allow or refuse a claim
against another category of defendants.

[20] In opposition to the claim it has been argued that to allow it would cause
medical practitioners to be overly cautious and advise termination of pregnancy in
order to avoid the likelihood of liability. This argument has been said to lose sight of
the protection the law offers for behaviour that meets the standard of a reasonable
person and that if the recommendation of a termination of pregnancy is followed and
turns out to have been unreasonably advised, it could equally give rise to a claim by
the parents against the medical practitioner, hence the likelihood of liability is not
avoided.

[21] Caution has been expressed that allowing the claim could encourage claims
for minor defects. It has been recognised that this cause of action should only be
allowed in instances of grave defects.22  A measure of gravity can only ever be
subjectively applied and is so relative that it is completely uncertain and undesirable.
It could also be that the more serious the disability the less possible it may be to
appreciate the suffering or lack thereof.

[22] Counsel for the appellant submitted that an application of ss 11, 12(2)(a), 27,
28(1)(d) and 28(2) of the Constitution would lead to a conclusion that the claim
should be awarded. No suggestion was made which common law principle or
principles are to be developed or how the application of those sections would result
in an award of the claim. It was further broadly submitted that advances in medical
technology, the need for professionals not to act negligently, progressive

21 In our law in terms of The Choice of Termination of Pregnancy Act 92 of 1996.
22 In Zeitsov v Katz 40(2) P.D. 85 (S.Ct. 1986) this problem was stated but not resolved.

reproductive legislation and less than supportive social security services indicate
that the ‘time is right’ for claims of this nature.

[23] Section 11 of the Constitution gives ‘[e]veryone . . . the right to life’. If
anything, a consideration of the sanctity of life would lead to a conclusion to refuse
the claim as a decision to award it would entail, of necessity, an acceptance that
Brian’s life is worse than non-existence and therefore a violation of that very
principle.

[24] Section 12(2)(a) of the Constitution23 in the context of this case relates to the
first plaintiff’s rights and would be relevant to any duty owed to her, which is not
presently under consideration. It’s only other relevance is to causation as accepted
in this case, that the first plaintiff would have had the right to and would have
terminated her pregnancy if she was informed of the congenital defects of her
foetus.

[25] Sections 2724, 28(1)(d)25 and 28(2)26 of the Constitution is relevant to the
evaluation of considerations of public policy but in giving content to those rights the
question where liability in the present context should rest, is not answered. Nobody
would deny that Brian’s best interest would be served if he had access to all possible
medical provision for his condition, but the question remains who should be liable.

[26] It is clear that the debate is wide ranging, diverse and complex even before
religious, theological or philosophical arguments are considered.

[27] In those jurisdictions where these claims have been allowed the debate has
not been resolved, but an answer has simply been favoured on selected policy

23 Section 12(2)(a): ‘Everyone has the right to bodily and psychological integrity, which includes the
right to make decisions concerning reproduction.’
24 Section 27of the Constitution provides for the right of everyone to health care services, sufficient
food and water, social security, social assistance and emergency medical treatment and the
obligation of the state to take reasonable legislative measures, within its resources, to achieve the
realisation of these rights.
25 Section 28(1)(d):  ‘Every child has the right to be protected from maltreatment, neglect, abuse or
degradation.’
26 Section 28(2):  ‘A child’s best interests are of paramount importance in every matter concerning the
child.’

considerations without striking a balance that takes all the relevant norms and
demands of justice into account and without resolving the impossible comparison
between life with disabilities and non-existence. When one considers the content of
the duty owed to the child by the medical practitioners, the corresponding right,
wrongfulness, harm or damages, the choice between life with disabilities on the one
hand and non-existence on the other, is unavoidable. Making that choice in favour of
non-existence not only involves a disregard for the sanctity of life and the dignity of
the child,27 but involves an arbitrary, subjective preference for some policy
considerations and the denial of others.

[28] The essential question that is asked when enquiring into wrongfulness for
purposes of delictual liability is whether the law should recognise an action for
damages caused by negligent conduct28 and that is the question that falls to be
answered in this case.  I have pointed out that from whatever perspective one views
the matter the essential question that a court will be called upon to answer if it is
called upon to adjudicate a claim of this kind is whether the particular child should
have been born at all.  That is a question that goes so deeply to the heart of what it
is to be human that it should not even be asked of the law.  For that reason in my
view this court should not recognise an action of this kind.

[29] For these reasons I conclude that the court below correctly refused the claim
on exception.

[30] The appeal is dismissed with costs.

…………………….
S SNYDERS
ACTING JUDGE OF APPEAL
Concur:
STREICHER
NUGENT
HEHER
CACHALIA JJA

27 Sections 10 and 11 of the Constitution 1996.
28 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) para 12 E-F.

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

Case number : 340/07

In the matter between :

ELIZABETH GEORGINA ELZONA STEWART
FIRST APPELLANT
BRIAN STEWART

SECOND APPELLANT

and

DR M BOTHA

FIRST RESPONDENT
DR S SMAL

SECOND RESPONDENT

From: The Registrar, Supreme Court of Appeal
Date: 2008-06-03
Status: Immediate

The Supreme Court of Appeal this morning dismissed the claim of a child, born with severe
defects including spina bifida and hydrocephalus, against the doctors who treated his
mother during her pregnancy and negligently failed to advise her that her foetus suffered
from congenital defects.  The judgment recognises the parents’ claim for the recovery of
medical expenses, maintenance, special schooling and past and future medical expenses
flowing from the child’s condition, and refused that of the child for the same damages.  A
vital distinction is drawn between the parents’ claim and that of the child, namely that the
child’s claim necessarily involves a decision that the child’s life is worth less than non-
existence.  Whether that is so, depends on fundamentally subjective answers which are
informed by individual theological, philosophical, emotional, moral and other values.  The
court concluded that as the question goes so deeply to the heart of what it is to be human, it
should not be asked of the law.