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Introduction to Law - Comparative Law Notes
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Grahamstown • 6140 • South AfricaFACULTY OF LAW • Tel: (046) 603 8427/8 • Fax: (046) 6228960
Web Page: http://www.ru.ac.za/law
INTRODUCTION TO LAW – 2018
CAPACITIES AND RIGHTS OF THE LEGAL SUBJECT
Lecturer: Justin Ramages
Outcomes:
Upon the completion of this module, students should be able to:
1. Know what/who legal subjects are.
2. Explain what is meant by ‘capacities’ and discuss the different types of capacities.
3. Explain what a legal right is, with reference to
a. the basic elements of a legal right
b. the relationship between rights and duties;
c. two viewpoints of the legal system namely the (i) subject-state viewpoint and
(ii) the subject-subject viewpoint
d. the “two-fold” relationship between subject and object, and subject and third
parties;
4. Identify and discuss the different “kinds” of rights and explain how they are
conferred on legal subjects.
5. Explain what an object is and discuss the categories according to which the objects
of rights can be classified.
6. Recognise and discuss the different kinds of objects and rights in a problem-solving
context.
7. Explain the importance of the Bill of Rights (Chapter 2) in the Constitution of the
Republic of South Africa, 1996 and very briefly list and explain the human rights
entrenched therein. Students will be expected to refer to case law as discussed in
class.
8. Identify and discuss the different generations of human rights with reference to the
nature of the benefits and obligations arising under each generation of human
rights. Students will be expected to refer to case law as discussed in class.
,GENERAL INTRODUCTION:
The module “Capacities and Rights of the Legal Subject” is incorporated in the Legal
Theory 1 course with the purpose of introducing the concept of “legal rights”. The
focus of this module will mainly be on the operation of rights between persons. In other
words, we will discuss the law in the subjective sense as a system of rights and duties
that apply to and between legal subjects.1
We will begin this module by answering the question of “Who or what is a legal
subject?” We will then discuss the different capacities of legal subjects. The law
provides legal subjects with certain capacities according to which they are allowed to
take part in the legal environment where individuals’ rights are to be respected,
protected and promoted. Of course, this has an influence on the relationship between
legal subjects, especially with regard to duties that arise by virtue of legal rights. The
discussion of legal subjectivity and capacities of legal subjects will thus serve as
background for the discussion of the meaning of “legal rights”.
During our discussions of legal rights, we will identify the basic elements of a right. We
will furthermore address issues such as the extent and enforcement of rights. Different
kinds of rights will be identified and explained in terms of both the private and public
law spheres. In terms of the private law sphere we will examine the different kinds of
subjective rights. In terms of the public law sphere we will discuss human rights with
specific reference to the Bill of Rights contained in chapter 2 of The Constitution of the
Republic of South Africa of 1996.
During lectures, reference will be made to case law as part of the discussion of the
work. These cases must be referred to and applied in assignments, tests and
examination answers.
1Kleyn D, Viljoen F Beginner’s Guide for Law Students 3ed (2004) 112-113 (Juta Law, A Division of Juta& Co, Lansdowne,
SA).Hereafter ‘Kleyn and Viljoen’.
Page 2 of 16
, A WHO OR WHAT IS A LEGAL SUBJECT?
The term “legal subject” can be defined as a bearer of juristic competencies, subjective
rights (with the inherent powers or entitlements) and legal duties.2 In South African law
there are two categories of legal subjects: (i) natural persons and (ii) juristic persons.
All human beings are referred to as natural persons and are thus legal subjects.
Juristic persons, however, can be defined as certain associations of natural persons,
such as companies and universities. 3 They are viewed as entities and are also
considered to be “persons” and thus legal subjects in terms of the law.
B CAPACITIES OF LEGAL SUBJECTS
The law provides legal subjects (the bearers of rights and duties) with the ability
(capacity) to participate in legal activities.4 The content and purport of a legal subject’s
capacities is very important since it determines the subject’s status, and therefore
extent of participation, in the legal system.5
Not all legal subjects have the exact same capacities. There are four different types of
capacities that legal subjects can have.
1. The first type, called legal capacity, can be described as a legal subject’s ability
to bear rights and duties. 6 It is therefore essentially the same as legal
subjectivity, because it is acquired through being a person. In other words, all
legal subjects have legal capacity simply because they are recognised by the
law as “persons with rights and duties”.
2. The second type, capacity to act, refers to a legal subject’s ability to perform
juristic acts. Juristic acts are purposeful lawful acts to which the law attaches
the consequences envisaged by the party or parties who performed them.
Juristic acts create, amend and terminate rights and duties. Examples of juristic
acts are the conclusion of a contract, the making of a will, the entering into a
marriage etc. Contrary to the situation with legal capacity (where all legal
subjects share the same capacity), not all legal subjects have the same
capacity to act. Depending on factors such as a person’s age, mental health,
2 Davel CJ, Jordaan RA PersoneregStudentehandboek 2ed (1998) 3 (Juta& Co, Lansdowne, SA).Hereafter Davel and
Jordaan.
3Kleyn and Viljoen 113.
4 Legal activities include the making of a will, entering into a contract, getting married, the setting up of a company etc.
5Davel and Jordaan 1.
6Kleyn and Viljoen 113.
Page 3 of 16
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