PVL101-Q LAW OF PERSONS

SECTION ONE: INTRODUCTION TO THE MODULE:

Contents of the module:

Law of persons, focuses on the distinction the law makes between persons as natural persons and juristic persons
and also the point at which a persons legal personality begins, namely at birth and special rules applicable
(Nasciturus fiction) should the interests of an unborn child be affected.

Presumption of death, the end of legal personality including the rules applicable where a person disappears and it is
uncertain whether he/she is still alive.

Status of the legal subject i.e. a persons standing in law, legal capacity, to act/litigate and to be held accountable for
crimes and delicts.

Domicile, is an aspect of law that influences a persons status.

Extra-marital children.

Age, as an important factor influencing a persons status i.e. the capacity of infants. Termination of minority. Diverse
factors that influence a persons status i.e. mental illness, intoxication etc.

General Concepts

1. Agreement: Conscious meeting of minds (consensus ad idem) between 2 or more persons. An agreement
creating obligations is known as a contract.

2. Capacity to act: The capacity to perform valid juristic acts.

3. Capacity to litigate: The capacity to appear in court as party to a suit.

4. Contract: An agreement entered into with the intention to create an obligation

5. Curator: A person who manages another persons affairs on behalf of the latter because he or she is not
capable of doing so. A curator ventris acts, in general on behalf of an unborn child, A curator ad litem acts
on behalf of another only for the purposes of litigation and a curator bonis administers anothers property.

6. Damages: The amount which a person can claim as compensation for actual patrimonial loss he or she has
suffered as a consequence of deloct or breach of contract. See also reparation infra.

7. Delict: A wrongful and intentional or negligent act as a consequence of which another suffers a loss.
Wrongful signifies the infringement of a subjective right or the non- fulfilment of a legal duty.

8. Enrichment: Undue enrichment occurs where one person obtains a patrimonial benefit at the expense of
another without a valid legal ground existing for the transfer of the benefit.

9. Estoppel: The doctrine that provides that if someone culpably represents that a certain state of affairs
exists, and another person acts to his or her own disadvantage in consequence of such a representation,
the deceiver is precluded from raising the true facts.

10. Exceptio non adimpleti contractus: A defence which a party to a reciprocal contract may, under certain
circumstances, employ against the other party when the latter sues the former on the contract and latter
himself or herself has not performed or tendered performance.

11. Juristic act: A human act to which the law attaches at least some of the consequences desired by the party
or parties performing the act. The distinction between a void and voidable uristic act is important. A void
juristic act is void ab initio and devoid of all legal consequences. The position is simply as if the juristic act
had never taken place. A voidable juristic ac, on the other hand, is valid and has all the usual legal
consequences until it is nullified or set aside (i.e. by a party to the contract or a third party). It differs from a
valid juristic act un that it has some or other defect that might lead to its nullification, but does not render the
juristic act void from the outset.

12. Law of succession: The law of intestate succession determines how and on whom a persons estate
devolves when he or she dies without a valid will. The law of testate succession determines how and on
whom a persons estate devolves where a the testator has left a valid will.

13. Legal Capacity: The capacity to be the bearer of rights and duties

14. Legal/Juristic Fact: Fact to which the law attaches consequences.

15. Legal object: Anything to which a legal subject may have rights

16. Legal or juristic personality: The attribute of having, rights duties and capacities in the eyes of the law.
 17. Legal subject: A person or entity subject to the law. A legal subject is a member of the legal community to
whom the law applies and for whose benefit the law exists. Legal subjectivity is the capacity of being a legal
subject. Legal subjectivity is apparent from the fact that every legal subject is the bearer of rights, duties
and capacities

18. Liability: A person is legally liable if a performance which is due arising inter alia from contract or delict, can
be legally enforced against him or her.

19. Majors and minors and mondig and onmondig: Majors and minors indicate whether a person is older or
younger than 21 years, mondig en onmondig indicate a person is legally regarded as being capable of
conducting his/her own affairs or not.

20. Martital and extra-marital (legitimate and illegitimate) Children: (An extra-marital child is also called an
illegitimate child, but the preferred term is extra-marital) A Marital child is a child born from parent who are
legally married at the time of its conception, birth or at any intervening time, and is also probably a child
born from a putative marriage. Extra-marital children are all children who do not meet the requirements
stated above.

21. Negotiorum gestio: That is the administering of anothers affairs to his or her advantage, but without his or
her knowledge.

22. Obligation: A juristic bond in term of which on the one hand a person/s has a right to a performance and, on
the other hand, a person/s has a duty to render performance. A civil obligation is legally enforceable while a
natural obligation is unenforceable.

23. Performance: Human conduct which may consist of either doing or not doing something. An obligation
consists of a duty to render performance.

24. Presumption: An assumption made by the law on the basis of the available facts. An irrebuttable
presumption cannot be rebutted by proving facts to the contrary - in such a case the presumption is actually
a legal rule which states that a certain acceptance must be made by the law if certain facts are proved to
exist. A rebutable presumption is an acceptance which is made but which can be made rebutted by proving
the contrary.

25. Putative marriage: A void marriage where one or both of the parties to the marriage are bona fide unaware
of the defect invalidating the marriage. As long as one or both of the parties remain bona fide unaware of
the fact that the marriage is in fact invalid, the putative marriage has the legal consequences of a valid
marriage.

26. Ratification: That behaviour (tacit or express) whereby an error in a juristic act is rectified to that it acquires
full validity retrospectively.

27. Reparation (genoegdoening, solatium, satisfaction): Compensation which a person may claim in regard
to non-patremonial loss that he or she has suffered as a result of a delict. The word damages is often
used both in the sense of patrimonial and non-patrimonial loss. The distinction is nevertheless verry
important since different rules apply in regard to recovery of the tho types of loss. See also Damages
Supra.

28. Restitutio in Intergrum: A legal remedy by means of which the former position is restored, that is the
return of whatever had been performed in term of a contract.

List of technical terms for reference purposes (Not for exam):

Study Unit 2
Introduction to The Law of Persons

2.1 Introduction

Law of persons is a subsection of private law which governs a persons relation with other legal fellow human
beings/legal subjects.

2.2 Definition of Law of Persons

The law of persons is that part of private law which determines which beings or entities are legal subjects or persons, the
way in which legal personality begins and is terminated, which different classes of legal subjects are distinguished, and
the legal status of each of these classes of persons. The importance of being a person in the eyes of the law lies in the
fact that only a person can have rights, duties and capacities and can therefore participate in legal intercourse.

2.3 Four Categories of Legal objects:

1. Corporeal things: Physical, material things which are susceptible to human control and which are of value to
people
2. Performances: Human act and the right which one has to a performance.
3. Personality Property: A personality right is a persons right to his good name reputation etc
4. Immaterial Objects: The right to an immaterial object is an immaterial property right such as an artists right to
his painting or an inventor to his invention.

2.4 Different kinds of legal subjects (2 classes of legal subjects):

1. The Natural Person All Human beings, irrespective of for example age, mental condition or intellectual ability
are recognised as legal subjects that can have rights, duties and capacities.
2. The Juristic Person Certain entities or associations, the juristic person as a legal subject enjoys an existence
which is independent from that of its members or the natural persons who created it.

Juristic Persons recognised in South African law

a) Associations: Such as banks, companies and co-operatives

b) Associations or institutions especially created and recognised as juristic persons in separate legislation
i.e. Universities and Semi-government organisations.
c) Associations which comply with the common-law requirements for the recognition of juristic personality.
Our courts determined that they must meet the following requirements to be recognised as a juristic
person.
i. Must have a continues existence irrespective of the fact that its members may vary
ii. It must possess property or be able to possess property which belongs to the association
itself and not the individual members.
iii. Its object must not be the acquisition of gain. Any association having the acquisition of gain
as its object must be registered as company in order to obtain juristic personality as per the
Companies Act of 1973

Examples of juristic persons is i.e. Churches, political parties etc.

A partnership is not an Juristic person, the individual partners responsible for partnership debts out of their
private funds.

Possible Questions:
SECTION 2 The Beginning and End of Legal Personality

Study Unit 4
The Beginning of legal Personality

4.1 The Beginning of legal personality

Legal Personality begins at birth with the following requirements:

1. Birth must be fully completed (Complete separation between the mother and baby. For birth to be
completed it is not required that the umbilical cord be severed (cut off)
2. The child must be alive after separation even if only for a short period, legal personality is not obtained
b a stillborn foetus or a foetus which dies during birth.
3. The child must also be viable before legal personality is conferred upon her (the child must have
reached such a stage of development that an existence independent of its mothers body is possible)
(not valid to South African law.

4.2 Registration of Births

In terms of the Births and Deaths Registration Act 51 of 1992, notice of the birth of every child born alive must be given
within 30 days after the birth to the Director General of Home Affairs.
Notice of the birth of a legitimate child must be given under the surname of the father/mother or both and in the case of
an extra-marital child under the surname of the mother.
If an extra-marital child is registered under the surname of the father of the child, written consent to change the surname
from the father is no longer required where the mother has sole guardianship over the child.

Possible Questions:
Study Unit 5
The interest of the unborn child (Nasciturus)

5.2.1 Definition and requirements

Definition: Nasciturus
Nasciturus is a conceived but unborn child (foetus) not yet a legal subject. In the normal course of events the foetus will
become a legal subject (After birth). However, before the birth of a child, situations could arise which could have been to
the advantage of the Nasciturus had he/she already been born i.e. he/she could have been a beneficiary under a will.
When ever such a situation arises, the law protects the interests of the Nasciturus by employing the fiction that the foetus
is regarded as having been born at the time of conception whenever it is to its advantage.

Definition: Fiction

The fiction is based on a presumption or assumption that is not based on a fact, when applying Nasciturus fiction, the
unborn child is regarded as a living person, although it has not yet been born.

Nasciturus fiction implies that certain claims/rights or the legal position that could be to the advantage of the Nasciturus
is kept in abeyance for receipt upon birth. For Nasciturus fiction to come into operation, the foetus must have been
conceived at the time that the benefit would have accrued to him and the child must subsequently be born alive. If the
child is not born alive it is assumed, with regard to his interest, that he was never conceived.

* a 3rd person may benefit from the application of Nasciturus fiction if such benefit is a natural consequence of the
application of the fiction in favour of the Nasciturus, but n-fiction cannot be used if only a 3rd person will benefit from its
application. I.e. in the case where n-fiction is applied and the child dies soon after birth, then only the childs intestate
heirs.

5.2.2 The interest taken into account

In modern South African Law n-fiction has been extended and our law proceeds from a general principle and protects
any of the following conceivable interests.

1. Patrimonial Interests.

a. Succession

i. Intestate Succession

Where a person failed to leave a valid will, the estate devolves in terms of the law of intestate succession. N-fiction is
applied to protect potential interest of un unborn child as division of the assets is postponed until it is certain whether a
live person is born or not. If the child is born alive he/she inherits as if he/she was already born at the time of the
deceaseds death.

ii. Testate Succession

It has been held that if a testator does not appoint beneficiaries by name, but as members of a class, child is in that class
who was already conceived at the time of the testators death but was born only after the testators death can inherit.
The reason for the decision is that the testator presumably had the intention of benefiting already conceived but still
unborn persons belonging to the class.

b. Maintenance:

If the father of a Nasciturus is killed as a result of someone elses delict (or unlawful deed is an unlawful i.e. against the
norms of the law and culpable deed as a consequence of which another suffers a loss), the child can, after her birth,
institute an action/claim for damages as a result of the loss of support against the person who killed her father. The basis
for calculating the claim is the to put the child in the position she would have been if her father was not killed.

In Chisholm v ERPM 1909 TH 297, the court held that where the child is born after her fathers death, the Nasciturus
fiction may be used to grant the child a claim for damages for loss of support after his/her birth

2. Personality Interests

Question whether the foetus is also entitled to protection of his personality rights, for example his physical integrity. I.e.
the foetus is hurt in ventre matris (in the womb) and as a result is born with a brain defect. Does such an injury give rise
to and action for damages or solatium (satisfaction for the infringement of a personality right)?

In South African this question came b4 the court in Pinchin v Santam Insurance: Judge Hiemstra pointed out that the
only starting point in our common-sources for the protection of the interests of the foetus was to be found in the
Nasciturus fiction and mentioned that all commentators focused on succession and status only. He also consulted
English and American law and concluded that the principles of South African law are flexible enough to extend the fiction
to the field of delict. He accordingly held that a child does have an action to recover damages for pre-natal Injuries.

The Plaintiff was successful on the question of law but it was found on the facts that it had not been proved that the brain
damage was caused by the accident and the action was thus turned down.

3. Custody
Where a pregnant woman is party to divorce proceedings, the court may make provision in its order for the custody of
the child birth to limit further legal proceedings when the child is born.

4. Abortion

a) General

Formally the Abortion and sterilisation Act 2 of 1975 protected the interests of the foetus to be born alive and that any
person who killed or aborted an unborn child committed a crime. The act also defined in a few narrowly-defined
circumstances in which abortion was allowed, and contained rules in regard to the procedure to be followed when such
an abortion was performed. Abortion is now regulated by the Choice on Termination of Pregnancy act 92 of 1996,
which legalised abortion

b) Termination of pregnancy

A pregnancy may be terminated with the consent of the mother during:

a) The 1st 12 weeks of the gestation period by a medical practitioner/midwife.

b) From the 13th up to and including the 20th week of the gestation period if a medical practitioner, after
consultation with the pregnant woman is of the opinion that:
i. The continued pregnancy would pose a risk of injury to the womans physical or mental
health; or
ii. There is a substantial risk that the foetus would suffer from a severe physical or mental
abnormality; or
iii. The pregnancy resulted from rape or incest; or
iv. The continued pregnancy would significantly affect the womans social or economic
circumstances
c) After the 20th week of the gestation period a pregnancy may be terminated if a medical practitioner, after
consultation with another medical practitioner or a registered mid-wife is of the opinion that the continued
pregnancy would:
i. Would endanger the womans life
ii. Would result in a severe malformation of the foetus; or
iii Would pose a risk of injury to the foetus.

Only a medical practitioner may perform an abortion after the 12th week of the gestation period.

c) Consent

An abortion may only take place with the informed consent of the pregnant woman. No other consent that that of the
pregnant woman is required for the termination of a pregnancy unless, she is incapable of giving consent.

In the case of a pregnant minor (under 18) the medical practitioner or registered mid-wife must advise the minor to
consult with her parents, guardian, family members or friends b4 the pregnancy is terminated. She may however not be
denied the termination if she does not want to consult with any of the above.

The act also provides for the termination of the pregnancy of a woman who is severely mentally disabled or in a state of
continuous unconsciousness VERY IMPORTANT STUDY DECISION Christian Lawyers Association of South Africa v
The Minister of Health (Case Book [4]).

Before the above act came into operation, our courts held that the foetus does not have a right to life which can be
enforced on its behalf.

Abortion is a continuous constitutional issue, it is argued in sec 11 of the constitution of South Africa that (which
guarantees life) renders abortion unconstitutional.

5. Birth control and sterilisation

Birth control and sterilisation are permitted and governed by the sterilisation act 44 of 1998 which permits voluntary
sterilisation of anyone over the age of 18 who is capable of consenting

A person under the age of 18 may only be sterilised if failure to perform the sterilisation would jeopardise his/her life.

5.2.3 Is the Nasciturus a legal subject?

To find an answer to the issue, one must distinguish between the so called Nasciturus rule and the Nasciturus fiction.
Some jurists maintain that the protection afforded to the foetus is based on the Nasciturus rule and not on a fiction (They
argue that if a situation arises where it would been to the advantage of the unborn child, had he/she already been born,
all the rights that a normal person would have must also be afforded to the unborn child. The unborn child is thus a legal
subject from the date of conception. On the other hand; other authors argue that Nasciturus fiction should be applied
to protect his/her interests until the child is born, the unborn child is thus not regarded as a legal subject. DO TAPE FOR
PVL101-Q

Possible Questions:
Study Unit 6
The end of legal personality

6.2.1 The End of legal personality

The legal personality of a person is terminated by death, dead people can have neither rights nor obligation.

South African Law criteria to determine death: In South African law it is uncertain what criteria are to be applied
to determine when a person is legally dead. The courts rely mainly on medical evidence to determine death
and moment of death.

6.2.2 Proof of death

Legal position where a person disappears and it is uncertain whether he/she is alive:

A death certificate is prima facie proof of death. In private law proof of death is important for the administration
of the deceaseds estate and the surviving spouse can remarry.

Accordingly a problematic situation arises when a person disappears and it is not certain whether he/she is still
alive. In such cases the presumption of death is used to settle this unsatisfactory situation:

Two different procedures for obtaining a presumption of death order.

1. Common law presumption of death:

Should any interested 3rd party apply to the High Court to have a presumption of death expressed, it is
referred to as a Common-Law application as the application is brought in terms of the common law.

Criteria:

I. Any interested party i.e. creditor; surviving spouse.

II. Application to High Court whos jurisdiction extends to domicile of missing person
III. Applicant must prove on a predominance of probabilities that the missing person is dead.
IV. Initial 7 year rule was superseded by the rule that no fixed period of time is required.

Factor taken into consideration by the court before an order is granted:

 I. Length of absence (alone, not enough to base a presumption of death )
II. Date of disappearance.
III. The age of the person presumed to be dead
IV. The trade or occupation of the person presumed to be dead (Peaceful / danger)

Procedure the court will follow after hearing the application:

After the application has been heard, a return date is set on which the final order will be made. It is
then ordered by the court that all parties (as determined by the court) should be given notice of the
rule nisi and it must also be published in the local press and the Government Gazette. In doing so it is
ensured that opportunity is given to any interested parties to bring any further relevant facts or possible
objections to the notice of the court before the order is finalised.

2. Statutory presumption of death:

Legislature prescribed two alternative procedures to common-law presumption of death in respect of persons whos
death resulted from unnatural causes:

1. The Inquest Act 58 of 1959 provides that where it is suspected that a person died of unnatural causes, the
magistrate can hold an inquest. Sec 18 of the Act provides that if the corpse of the person concerned has not
been found or if it has been destroyed, and the evidence proves beyond a reasonable doubt that the person
concerned is dead, the magistrates findings in regard to the case concerned may be confirmed by a judge of
the High Court and that this order will have the same effect as an order presuming the death of the person by
that judge.

Two important aspects of this act must be emphasised:

I. The state takes the initiative in these cases as an unnatural death is suspected and this means that it is not
necessary for a private person to approach the court with regard to an order for the presumption of death
II. The Judicial officer must be certain beyond a reasonable doubt that the person is dead before he can record a
finding that the person is presumed dead. (In common law procedure differs = proved on a balance of
probabilities)

2. Section 12 of The Aviation Act 74 of 1962 Provides that an enquiry into an aviation accident above the Rep.
of South Africa or South African territorial waters or n which a South African aircraft was involved, can make use of
the procedure in sec 18 as explained as above.

6.2.3 The effect of an order of presumption of death.

The presumption of death order does not mean that the person concerned is dead. It is only a rebuttal presumption
(Reversal). The court can set aside the order on the basis of further evidence that the person concerned is alive. (This
can be done by an interested person or the missing person himself)

After death has been officially presumed, the persons estate may in principle be dealt with as if he/she were dead and
divided among the heirs. Subject to, in certain instances, security for the restoration of the property or its value, should
the missing person return.

The remarriage of the surviving spouse after the presumption of death order is regulated by the Dissolution of
Marriages on Presumption of Death Act 23 of 1979 which provides that the court which pronounces a presumption of
death is empowered to make an order dissolving the persons marriage at the same time that the presumption of death is
made or anytime thereafter.

The court may only grant the order on application from the surviving spouse and not out of its own initiative. The result of
the order is the marriage is deemed to be dissolved by death for all purposes.

The court may refuse to grant an order presuming the death of the missing person but may appoint a curator bonis to
administer the missing persons affairs.

6.2.4 Presumptions regarding sequence of death

Where few people die in the same disaster commorientes, it is important for purposes on inheritance to determine who
died first. In South African law, unless there is evidence to the contrary, the courts will find that commorientes died
simultaneously.

Possible Questions:
Study Unit 7
Revision of study units 4-6 [The beginning and end of legal personality]

SECTION 3
FACTORS WHICH DETERMINE STATUS.

Study unit 8
Status Definition of concepts

The law of persons id that part of private law which inter alia determines the legal status of the legal subject.

The concept status is derived from the Latin word stare which means to stand Therefore, status is concerned with a
persons standing in the law and this standing is determined by all those attributes a person has, or the condition in which
he finds himself to which the law attaches consequences.

1. Legal Capacity:

The competency to have rights, duties and capacities, all humans have this capacity irrespective of their personal
qualities. Something that can never have rights, duties and capacities is not a legal subject but can be a legal object.

2. Capacity to Act:

The Capacity to participate in legal interaction, that is to perform valid juristic acts. A juristic act is a human act to which
the law attaches at least some of the consequences desired by the party or parties performing the act.

3. The Capacity to litigate

This is the capacity to appear in court as a party to a suit. There is usually a close correlation between capacity to act
and capacity to litigate.

4. Capacity to be held accountable for crimes and delicts

This capacity is to a great extend influenced by a persons age and mental condition, because fault in the form of either
intent or negligence is, generally speaking, a requirement for criminal and delictual liability.