PRIVATE LAW 171 – STUDY NOTES
Study Unit 1: Definition of Concepts and Terminology
1.1 OBJECTIVE LAW – the natural laws of the country
• Norms and prescriptions
• Subdivided into private and public law
• Public law – legal rules that apply when the government acts with state authority
• Private law – legal rules that apply to a variety of legal relationships in which the acting
person is called a legal subject
1.2 SUBJECTIVE RIGHTS
• A network of legal relationships amongst legal subjects
• Only if there is an object involved
• Legal objects – 4 categories:
1. Things – movable and immovable property
2. Performance – service; something that is done
3. Immaterial property – intellectual property; ideas, music etc
4. Personality property – name, reputation, personal dignity etc
5. Personal immaterial property – earning capacity, credit worthiness
6. Trade secrets – how to make products
1.2.1 RIGHTS ATTACHED TO LEGAL OBJECTS
Legal Object Subjective Right Example
Corporeal thing Real right Property right
Performance Personal right Right to claim payment
Immaterial property Immaterial property right Copyright
Personality property Personality right Right to a good name
1.3 CONNECTION?
• Law determines the content and limit of every right
• Objective determines subjective
2.1 THE LAW OF PERSONS
• Part of the objective law
• Regulates he coming into existence, legal status and coming to an end of a legal subject
2.1.1 PART OF THE OBJECTIVE LAW
• Must be studied within the law of SA as a whole
• Characteristics of legal rules from the objective law are positivised by an organ of state with the
authority to lay down legal rules
2.1.2 COMING INTO EXISTENCE, COMING TO AN END OF A LEGAL SUBJECT
(a) Who or what is a legal subject?
- The carrier of juridical competencies, subjective rights and capacities
, 2
1. Natural Persons
• South Africa – From moment of birth
• Roman-Dutch Law – slaves and deformed people (monstra) had no legal rights – were legal
objects
2. Juristic Persons
• A group or association (entity): e.g. University, church etc
• Legal subject in terms of the law
• Existence independent of members
3. Possible Recognition of Other Entities as Legal Subjects
• Only allows natural and legal persons to be legal subjects
(b) The Beginning and Coming to an End of a Legal Subject
• Legal subjectivity starts at birth
2.1.3 PRIVATE LAW STATUS
• Standing in the legal world
• Individual’s role or function in legal intercourse
(a) Legal Capacity
• Capacity to hold office as a legal subject e.g. be a spouse, testator, company director etc
• To have rights and obligations that result from holding such offices
• All persons have legal capacity – may be limited e.g. have to be 16 to be a testator
(b) Capacity to Act
• Capacity to enter into legal transactions – capacity to conclude juridically relevant acts
• Voluntary performance – wants to bring about a specific legal consequence
• Lawful acts
• Capacity to perform legally relevant acts
- No capacity to act alone: infant
- Limited capacity to act: minor
- Full capacity to act: major
(c) Capacity to Litigate
• Legal competency which enables a person to act as a plaintiff, defendant, respondent or
applicant in a private law suit
- No capacity to act alone – cannot be sued in own name
- Limited capacity to act – can sue or be sued in own name with the assistance of a
parent or guardian to litigate on their behalf
- Full capacity to litigate – unless mental capacity influences his/her status
(d) Factors of Influence
• Age
• Mental Health
• Prodigality
• Domicile
Study Unit 2: The Beginning of Legal Subjectivity
1.1 BIRTH
• Legal subjectivity comes into existence at birth
• Criminal Procedure Act 51 Section 239
- Child proved to have breathed; does not have to be separate from the mother
- Do not need to prove that child died before, at or after birth
, 3
- Only a living person can be killed – NB to determine the beginning of legal subjectivity
1.2 REGISTRATION OF BIRTHS
• Registration of Births and Deaths Act 51 Section 1
- Statutory duty to register births, compulsory according to administrative law
- Birth = living birth – child deemed to have been born alive if there are any signs of life
- No legal subjectivity – only register the birth
• Common law
- Completion of birth – must be separate from the mother
- Any sign of life
- Viability – considered but not a requirement
• Registration of Births and Deaths Act 51 of 1992
- Birth of a child born alive
- Register at the Department of Home Affairs
- Within 30 days after the birth
- By parent or someone trusted
• Registration of Babies
- Surrogacy – by donor parents
- Family-less mother dies – guardian or caregiver
- Abandoned people – social worker or empowered person (e.g. magistrate)
- Name; surname; nationality; town
• Why are children registered?
- Child allowance given by the state
• Surnames
- Child born out of marriage – mother or father’s surname or a combination
- Child born out of wedlock – given mother’s surname unless both parents give a written
request for the father’s surname
- Father has to be with a Home Affairs official to declare paternity in person
- No combination of surnames
• Name and Surname Restrictions
- No symbols or numbers
- Can change name:
➢ <18 – need parents’ permission
➢ 18+ can apply to change your name yourself
➢ Changes = possible
➢ Can change name as many times as you want
- Exceptions (no formal application needed):
➢ Marriage
➢ Divorce (when the woman wants to return to her maiden name)
• Law of Homosexual Marriages:
- Woman can take each other’s name or a combination
- Men can’t take each other’s name
1.3 GENDER CHANGE
• Past:
- Did not recognize gender change
- Look at biological components
- Lawful reason
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