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Covers all the needs in the law of persons for law first year students
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INTRODUCTION TO THE LAW OF PERSONSCHAPTER 1
Sub-sec of private law
Private law = persons “first law” – sphere of law that governs relationships with humans
= concepts & institutions – basic to all other branches of the law
Law of Person: (national law-norm system of legal rules)
Is the part of objective law that regulate the coming of being a private law and ending of being a natural
persons.
Law of Persons norms allocate the juristic capacity (legal capacity, capabity to act and capacity to litigate)
Legal objectivity
Is the legal entity that holds a legal subject with a right
CATEGORIES OF LEGAL OBJECTIVITY
1.Corporeal Property – Real/Property Right ex.Right to Property Land, House ,etc
2.Performance –Personal Right ex.Right to Claim
3.Intellectual Property –Copyright ex.Right of artists
4.Personality Property –Personality right ex.Right to good repute
Relationship between Legal objectivity---Subject-object relationship & subject-subject relationship
Legal subject:
Centre of legal world – bearer of rights, duties and capacities – persons in the eye of the
law (persona iurus)
The Law of Persons determines:
1. Which entities are legal subjects
2. When legal personality begins & ends
3. What legal status involves
4. What effect certain factors have on a person’s legal status
2 Diff kinds of legal subjects:
Legal personality is bestowed on legal subjects who are determined legal subjects by legal norms of a
particular community
1. Natural person:
Every human being (have rights, duties & capacities – vary depending on factors)
History – slaves were excluded from legal personality – they were legal objects. Monstra
(monsters) – seriously malformed children – not legal subjects – were regarded to be not of
human decent – could be killed.
Modern SA law – ALL beings of human decent = legal subjects!
2. Juristic person:
These are certain associations of natural persons to which legal personality is granted.
Legal existence is independent from its members / natural persons who create it
Entities recognised as juristic persons in our law are associations:
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, (companies / banks / close corporations)
(universities / public corporations / semi-state organisations)
a. Comply with following common-law requirements of legal personality of a juristic person:
i. Must continue to exist even if members vary
ii. COMPLY WITH PERPETUATION SUCCESION with enable Partnership to be.
iii. Must have / be able to have its own rights / duties / capacities
iv. Its objective cannot be for the acquisition of gain
The following are not juristic persons:
1. Trust
2. Partnership
Legal Subjectivity- containing characteristics of legal subject.
1.Animal Protection Act 71 of 1962 prohibits cruelty to animals(confers doesn’t legal subjectivity on animals)
-regulating the human behaviour on animals
Status
The sum total of legal subject`s capacities.
Factors influencing Status
-Domicile
-Age
-Mental disability
-prodigality
-Extra-marital birth
-Youth
-Physical illness or incapacity
1.Legal Capacity
Ex.An individual under 16 cannot be a testator,marriage
Legal capacity doesn’t extend equally far –
Some legal subjects can’t have rights / duties at all / cannot have certain rights / duties at a
specific moment = limited legal capacity (i.e. children under 7 yrs).
These legal subjects don’t have no legal capacity – but rather they are still capable
of having rights & duties – but their legal capacity is limited in so far as they cannot
have rights and duties.
No legal subject can be entirely without legal capacity!!
2.Capacity to Act
-Infans(-7) can`t act(intelligence poor development)
-Minor(8-17)have limited capacity to act(Requires Parental advisory)
-Major(18+) have the capacity to act
2.Capacity to Litigate
-Infans cant be sued
-Minor can be sued of behalf of the parents
-Major can be sued unless having mental disability.
3.Capacity to be held accountable for crimes & delicts
Accountability – age / mental condition – fault in the form of either intent / negligence is requirement
for criminal / delictual liability.
Coincides with capacity to act & litigage.
Law of Persons and Justice
Influenced by factors of Legal capacity
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,Law of persons differs from different group of people on basic number of factors
Will Act 7 of 1953 states that a person above puberty can write a will
Girls of 14 & Boys of 12 because of sexual maturity and psychological maturity.(Also applies to marriage)
Law of Persons & Constitution
Sections covers human dignity,equality and freedom.
Sec 9(1)- all persons are equal
Sec 9(3) –respect right
Sec 9(4) no discrimination
Sec 32(1)nature of right and limitation
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, CHAPTER 2
BEGINNING OF LEGAL PERSONALITY
Legal personality begins at birth – foetus not a legal subject.
Legal requirements for the beginning of legal personality:
1. Birth must be fully completed – complete separation between mother & foetus’s body – not a
requirement for umbilical cord to be severed.
2. Child must live after separation – even if for a short period.
SA law – not yet authoritatively been decided how life must be proved after birth.
Criminal Procedure Act 51 of 1977 with prohibits killing of newborn child
For criminal procedures where an accused is charged with the killing of a newborn child – child is
deemed to have been born alive if child proved to
have breathed.
The specific section of the Criminal Procedures Act doesn’t purport to set out material requirements
for determining lift after birth.
Courts thus rely on medical evidence > Although medical doctors usually establish whether
the child has breathed in order to determine if he / she was born alive, this is not the only
test, and any medical evidence that can prove that there was life should be acceptable.
“Viability” = Child must have reached a stage of development so it can exist independently of
mothers body.
Child must be viable before legal personality is conferred upon it.
o Doubtful if requirement was ever part of RD-L / RL – suggested
that it’s not requirement for commencement of legal personality
in SA law.
o Problem with it: vague concept – could lead to impossible
problems in evidence.
REGISTRATION OF BIRTHS
Births & Deaths Registration Act
Director General of Home Affairs / person transferred powers of duties to must be notified of birth of every
child born alive within 30 days of birth
Parents / person in charge of child / person parents or person in charge of child request to do so’s
duty.
Forename (first name) & surname must be assigned to child.
Legitimate child – notice of birth given under surname of either parent / double-barrel.
Extra-marital child:
Registered under surname of mother
Unless parents jointly require father’s surname to be used.
o Father must acknowledge paternity in writing in front of person
notice of birth is given & enter his particulars on notice of birth.
o Father who wants to acknowledge paternity and enter his
particulars after birth is registered – may do so with mother’s
consent – if mother withholds consent – father can apply to HC
for declaratory order confirming his paternity & dispensing with
the mother’s consent.
If child is registered under father’s surname – it can only
be changed with father’s written consent – court can
grant exemption from consent requirement.
Act doesn’t make provision for extra-marital child
registered under a double-barrel surname.
Case name: J v Director General, Department of Home Affairs
Facts: Woman in same-sex life partnership gave birth to twins conceived by artificial fertilisation (other
woman’s ovum & donor sperm).
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