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lOMoARcPSD|8890370PVL1501 Law Persons Notes Cases 2008
Law Of Persons (University of Limpopo)
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INTRODUCTION TO THE LAW OF PERSONS
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
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
Functionaries act on its behalf – juristic person acquires rights, duties and
capacities.
Entities recognised as juristic persons in our law are associations:
a. Incorporated in terms of general enabling legislation (companies / banks / close corporations)
b. Especially created & recognised as juristic persons in separate legislation (universities / public
corporations / semi-state organisations)
c. Comply with following common-law requirements of legal personality of a juristic person:
i. Must continue to exist even if members vary
ii. Must have / be able to have its own rights / duties / capacities
iii. Its objective cannot be for the acquisition of gain
The following are not juristic persons:
1. Trust
2. Partnership
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.
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SA law – not yet authoritatively been decided how life must be proved after birth.
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).
Problem: Wanted twins registered as birth mother “mother” and other woman “parent”. Director Gen.
refused to register in this manner – woman applied to court for order directing him to do so.
Attacked constitutionality of Sec 5 of Childrens Status Act – children born by artificial
fertilisation are legitimate if birth mother married – not if partner in same-sex life partnership.
Outcome: Durban HC granted order and CC upheld finding of unconstitutionality. Now children born by
artificial fertilisation of woman partner in same-sex life partnership legitimate & registered
under surname of either partner / double-barrel surname.
If parents marry after birth registered – on application to Dir. Gen. registration will be changed as if were
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legally married at time of birth.
Application can be brought by either parent / child’s guardian (minor) or child itself (major).
In Births & Deaths Registration Act, “Child Born out of Wedlock” excludes a child whose parents married
before conception or thereafter before the birth.
“Marriage” expanded to include Customary marriages
Recognition of Customary Marriages Act recognises customary marriages for all purposes –
child born out of such marriages is registered as legitimate.
And marriages concluded / solemnised according to tenets of any religion
Not yet given full recognition – parents marriage is still invalid, thus cannot have status of
legitimate child for all purposes.
If a person changes forename / child’s surname changes it can be changed on the birth register to reflect the
change. Anyone can apply to Dir. Gen. for authority to assume different surname.
INTERESTS OF THE UNBORN CHILD (NASCITURUS)
Nasciturus = conceived, but unborn child – aka “fetus”
Person’s legal personality begins at birth
the conceived but unborn foetus is not a legal subject (can’t have rights,
duties and capacities).
Nasciturus Fiction:
If situation arises – law protects potential interests of nasciturus by employing the fiction (imaginary,
presumption, assumption) that the foetus is regarded as having been born at time of conception whenever it
is to her it’s advantage.
If appears nasciturus would’ve had certain claims / rights had it been born already – legal position kept in
abeyance (kept aside) until born & acquires legal personality / or until certain it will not become a legal
subject
If becomes legal subject – receives rights kept in abeyance for it.
Requirements for NF:
1. Nasciturus must have been conceived at the time benefit would’ve accrued to it.
2. Child must subsequently be born alive – if not born alive – considered as never been conceived.
A third person can only benefit from application of NF if benefit is a natural consequence of application of
fiction in favour of nasciturus, but fiction cannot be applied if only a third person will benefit from it’s
application.
Example of situation where application of NF will be to advantage of only third persons:
Unborn child would have been entitled to an inheritance had he or she been norn when the testator died. If
child dies shortly after birth, the NF will not be applied cause only person to benefit from its application would
be child’s intestate heirs and not child him/herself.
Example of situation where application of NF will be to advantage of both third person and nasciturus:
A parent is responsible for maintaining child, provided parent able to do so and child is incapable of
supporting itself. If unborn child is born alive and then inherits an estate large enough to support itself,
parents not liable for maintenance. This way parents will also benefit from it’s application. NF will be applied
since benefit parents get is from application of fiction in favour of nasciturus.
NF cannot be used to prejudice nasciturus – must be to unborn child’s advantage!!!
INTERESTS TAKEN INTO ACCOUNT
NF only had limited use in common law – modern SA law extended from a general principle & protects any
conceivable interests!
NF already been used in following fields:
1. Patrimonial intrests = succession & maintenance
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