Private Law 171:
Law of Persons
The (objective) law
→ the rules / norms that regulate the conduct of legal subjects
• = Whole body of legal rules that’s applied
• Purpose: 2 regulate society in a peaceful, just manner. E.g. the law that orders people 2 drive on the left
side of the road
• Gives content 2 subjective rights
Subjective rights / law
• Network of legal relationships amongst legal subjects / natural persons
• E.g.: If you own a car, other people have 2 respect your property right
→ legal subject has a relationship with an object
Objective / positive law divided into: public law, private law, & commercial law
Public Law
• Legal rules that apply when the gov. acts with state authority
→ Legal relationship between state & its citizens… – vertical relationship
→ Also pertains 2 relationship between different state departments
Private Law
• Legal rules that apply in a horizontal relationship between legal subjects
Law of Persons
• * Part of objective law that regulates the coming in2 existence, private law status, & coming 2 an
end of a legal subject
• Deals with q. who qualifies as a legal subject, & what a legal subject is legally entitled 2 do (which
determines the status of the natural person)
• Focuses on natural persons!
• Legal subject: an entity that has legal subjectivity. Every person is a legal subject
• If entity not a legal subject: then = legal object [so includes animals!]
→ typically something with economic value
• A legal subject has a claim 2 a legal object: = a subjective right
• Only legal subjects have legal subjectivity
→ legal objects don’t have rights, duties, & capacities 2 participate in legal intercourse
In SA law: traditionally only 4 categories of legal objects: [the subjective right: referred 2 i.t.o. the nature of
the s. right]
1. Corporeal things (sake): things outside of the person – movable & immovable
→ real right
2. Immaterial property: products of your mind e.g. ideas 4 a book, music / intellectual property
→ immaterial property right
3. Personality property: aspect of person’s personality, e.g. integrity of a person’s body; his/her good
name & dignity → personality right
4. Performance: an act by some1 else. Can take form of dare (2 give something), facere (2 do something), or
non facere (not 2 do something)
→ personal right
In SA law: 2 categories of legal subjects: [carrier of juridical competencies, subjective rights & capacities, who can
participate in legal intercourse]
Natural persons [all people] Juristic (legal) persons
association of ppl, that as an entity = more than the sum of its
members, e.g. a company; a university]
Coming into existence & coming 2 end of legal subjectivity
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,Natural persons
• Legal subjectivity starts @ birth (not conception), & ends @ death.
Tjollo Ateljees Edms Bpk v Small: SCA confirmed (obiter dictum) that the Roman law rule relating 2 severely
deformed ppl (monstra) never formed part of SA law
→ all ppl = legal subjects, no matter how physically deformed / mentally deficient they are
• BUT: different legal subjectivity @ different ages
• Extent of participation in legal intercourse: determined by one’s legal status
→ E.g.: cannot draw up will @ one years of age, but are allowed 2 @ 16
• Age, mental health, insolvency: all affect status / ability 2 participate in legal intercourse
→ e.g. of legal intercourse: when person concludes a contract; enters in2 a marriage; executes a will
Legal persons
• Are different types of legal persons
→ formalities 4 the est. of a legal person: depends of the type of legal person
• Legal persons that can only be est. with permission from state / state exercises control in the interests
of the community
→ statutorily prescribed requirements need 2 be complied with
• Legal persons that not dependent on permission:
→ c.l. requirements 2 est. of a legal person need 2 be complied with
Status
* a legal subject’s standing in the legal world /
* role the person plays in legal intercourse / functions of the person in his/her capacity as legal subject
Sum total of your capacities
Determines whether or not & way in which person can participate in legal intercourse, as well as extent
thereof
E.g.: minor can’t participate in legal intercourse in same way & extent as grown-up person
→ parent / guardian must conclude contract 4 him on his behalf
Capacity
* indicates how person can participate in legal intercourse
– Capacity: = synonym 4 juridical ability
– Indicates that a legal subject can participate in legal intercourse,
→ e.g. concluding a contract, entering into a marriage, drawing up a will.
– Nature & extent of person’s capacities depends on certain factors
→ e.g. age, domicile, extra-marital birth
1. LEGAL CAPACITY
* Capacity 2 participate in legal intercourse as a subject
Includes the capacity 2 :
➢ Hold offices as a legal subject – e.g. 2 be a spouse, testator, company director
Juristic act: an act 2 which the
➢ To have the rights & obligations which result from holding such offices
law attaches the same
All legal subjects have legal capacity, but it can be limited – e.g. a minor consequences as those which
were intended by the acting
2. CAPACITY 2 ACT parties.
* The capacity 2 enter into legal transaction / capacity of a l.s. 2 conclude valid juristic acts
→ voluntary performance by the person – wants 2 bring about a specific legal consequence (e.g. contract,
will, marriage)
→ deals with lawful acts
BUT: 2 factors have an impact on person’s capacity 2 act: age & insanity
3 categories:
- No capacity 2 act alone → infant [ppl under 7 & ppl declared mentally insane… BUT: still have legal capacity]
- Limited capacity 2 act → minor [7 – 18. Need consent of parents/guardians]
- Full capacity 2 act → major
3. CAPACITY 2 LITIGATE [locus standi in iudicio] – take part in legal (civil?) proceedings
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,* Legal competency which enables a person 2 act as plaintiff, defendant, applicant or respondent in a private
law suit
Can sue & be sued
E.g.: infants can’t appear in court on own behalf. Minors can, but need parent/guardian 2 accompany them
4. CAPACITY 2 BE HELD ACCOUNTABLE
− Can act unlawfully
− Capacity 2 be held liable/accountable 4 unlawful acts / delicts
− Must be able 2 prove that person was able 2 draw distinction between right & wrong
➔ nature & extent of 4 capacities can differ from 1 person 2 another
Plaintiff: = person that claims
1st case: plaintiff v defendant
2nd case: appellant v respondent
COMMON LAW: The sum total of legal principles which formed part of Roman & Roman-Dutch law, &
became part of SA law. It also includes a limited influence of English law.
TARGETS: [Robinson p. 2-11]
− Distinction between objective law & subjective law [subjective rights]
− Definition of “legal subject” & legal object
“law of persons”
− Explain who / what can be classified as legal subjects
− Distinguish between 2 different types of legal subjects
− Explains term “status”
− Explain what is meant by the following competencies:
Legal capacity
Capacity 2 act
Capacity 2 litigate
Capacity 2 be held accountable 4 crimes & delicts
! STUDY UNIT 2 !
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, The beginning of legal subjectivity
BIRTH
P.O.D.: legal subjectivity only comes in2 existence @ birth.
But: definition differs depending on which context is used [good e.g. of test question, 10-12 marks]
❖ Context of criminal law proceedings
➔ Criminal Procedure Act, s 239(1)
Deemed 2 have been born alive: must prove 2 have breathed [test 4 oxygen in lungs]
have independent circulation
− Not nec. 4 baby 2 be entirely separated from mother
Authority 4 the question = Criminal Procedure Act
❖ Context of administrative law
Statutory duty 2 register birth
Births & Deaths Registration Act → s 1
− As long as the child is born alive
− No specific sign of life stated – any sign of life = sufficient
S 9 of Act: in case of child being born alive, either 1 of parents, or if parents unable 2 do so, the person who
has the child in their care… must give notification 30 days after birth
❖ Context of c.l.: Requirements 4 birth 4 granting legal subjectivity
1. Foetus must = separate from mother’s body [but cutting of umbilical chord need not have taken
place]
2. Foetus must have lived independently after separation from mother’s body. Any sign of life may
serve as evidence, e.g. able 2 prove child had breathed or cried.
Medical evidence = NB. E.g.: hydrostatic test 4 presence of oxygen in lungs
− Viability: child must’ve reached stage of dev within mother’s body so that (s)he could live
independently with or w/o aids, BUT without being fed from mother’s bloodstream
→ stage of dev of child’s most NB organs.
Viability is NOT a req. 2 legal subjectivity, in Roman or Roman-Dutch law. There’s no authority in c.l. that
viability is a req. – modern line of thought
Viability is a vague concept; it gives rise 2 a # of questions:
→ who determines viability
→ what happens if a non-viable baby survives?
REGISTRATION OF BIRTHS
Authority: Births & Deaths Registration Act
Where does 1 register? → Department of Home Affairs
When? → within 30 days after birth
If late, must give a reason
Who must register? → parents
OR: any1 who has care of the baby (e.g. when abandoned)
Child born of married parents
− Child registered under either mother’s or father’s surname, or double-barrelled surname
Child born of unmarried biological parents
− Child registered under mother’s surname, unless the parents jointly request in writing that a father’s
surname is 2 be used.
− Father must acknowledge paternity in writing in the presence of the relevant official when notice of birth is
given
− Not possible 2 have a double-barrelled surname
Forename & surname required 4 registration
→ no symbols are permissible
− Changes are possible → apply 2 Director-General
− Under 18: bring forth an application with assistance of parents
− If wife gets divorced or husband dies – woman can change back 2 maiden surname
− Not possible 4 man 2 take wife’s surname
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