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Summary Unisa Law of persons 1501 summaries 2022
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This document contains the entire summary of Heaton 6th edition South African law of persons in correlation with the study guide and Tutorial letter 103
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PVL1501 ASSIGNMENT 2 QUIZ MEMO - SEMESTER 2 - 2023 - UNISA - (UNIQUE NUMBER: - 678596 ) (DISTINCTION GUARANTEED) – DUE DATE 7 SEPTEMBER 2023
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Heaton 6th edition
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PVL1501-2022Learning Unit 2 – Introduction to Law
of persons LEARNING OUTCOMES
(1) explain what the law of persons is, and why you start the study of law with the
law of persons
(2) explain what the different kinds of legal subjects are
(3) explain the concept “transformative constitutionalism”, with reference to
examples
(4) explain the concept “customary law”, indicate the characteristics of
customary law, and distinguish between “living” and “official” customary law
DEFINITION OF LAW OF PERSONS
• Law of persons is a part of private law
• Determines which beings are legal subjects
• Beginning & End of legal personality
• Determines effects of various factors on legal status
DIFFERENT KINDS OF LEGAL SUBJECTS
Legal subjects can be defined as any entity with rights duties
and capacities 2 Kinds of legal subjects
(1) Natural Person – All human beings are recognised as legal subjects
regardless of their age, or intellectual or physical ability.
(2) Juristic Person – Legal personality can be bestowed on certain associations
of natural persons
Associations incorporated in terms of general enabling legislation
• Banks, Mutual Banks, co-operatives
Associations especially created and recognised as juristic persons in separate
legislation.
• Universities, state-owned enterprises, other public entities (SABC, Telkom,
Eskom)
Associations which comply with the common-law requirements (universitates)
(a) Associations must have continued existence irrespective of the fact that
members may change
(b) Must have rights, duties, and capacities or be able to have rights, duties, and
capacities.
(c) The object must not be the acquisition of gain.
• Churches, political parties, and trade unions
Trust and partnerships are not regarded as juristic persons
TRANSFORMATIVE CONSTITUTIONALISM
The constitution of South Africa 1996 is the supreme law
in the country Any law inconsistent with the constitution
will be declared invalid
The law does not automatically change it needs to be repealed
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by parliament Types of transformative constitutionalism
(a) Social economic transformation – aims to equalise socio economic rights
• Child support Grand
• Old persons Grand
• Disability Grand
(b) Transformation of legal culture. – aims to transform
legal education Study Pg1 Unit 2 of PVL Cases
CUSTOMARY LAW
• The Constitution recognises customary law as a legal system in section
211(3) Customary law is also indirectly recognised in sections 30 and 31
• Customary law can be defined as “the customs and usages traditionally
observed among the indigenous African peoples of South Africa and
which form part of the culture of those peoples
characteristics of customary law:
• Customary laws are largely unwritten. An exception is KwaZulu-Natal,
where customary law has been partly codified.8
• Customary law continually changes and develops.
• There are many tribal differences within each
culture and religion. 2 Types of Customary law
A distinction is made between “living” and “official” customary law:
• Living customary law is “the customs, traditions, beliefs and values by
which people govern themselves”
• Official customary law is the laws and rules applied by the courts in the
Western legal tradition. This version of customary law is sometimes
criticized for being an incorrect representation of customary law
Learning Unit 3 – Beginning of legal personality
LEARNING OUTCOMES
(1) explain the legal requirements for the beginning of legal personality
(2) explain the provisions of the Births and Deaths
Registration Act 51 of 1992 that deal with the
registration of births
(3) apply these principles to a given set of fact
THE BEGINNING OF LEGAL PERSONALITY
Requirements for the beginning of legal personality.
1. Birth must be fully completed, body of mother and child must be
completely separated, the umbilical cord does not need to be severed
2. Child must live after separation if only for a short period, this is called the
born alive rule, any evidence that the child breathed is accepted.
REGISTRATION OF BIRTHS
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1. In terms of the birth and deaths registration Act 51 of 1992 the Director-
General of home affairs must be notified of every child born alive
2. Notice of birth is a prerequisite for obtaining a birth certificate
3. Birth certificate is proof of child’s birth without birth certificate child is invisible.
4. Notice of birth must be given within 30days of child’s birth
• Where possible notice must be given by both parents
• If parents are not available notice must be given by guardian
• If child is 18 notices can be given in person
5. Notice of birth
(A) Notice given within 30 days must be accompanied by the following documents
• Proof of birth from medical practitioner who attended birth
• Affidavit of SA citizen who witnessed birth if birth happened
outside a medical institution
• Child, foot, or fingerprint of child
• Fingerprints of parents
• Certified copies of parents ID
(B) Notice of birth given after 30 days before a year
• Proof of birth from medical practitioner who attended birth
• Affidavit of SA citizen who witnessed birth if birth happened outside a
medical institution
• Child, foot, or fingerprint of child
• Fingerprints of parents
• Certified copies of parents ID
• Form setting out reason for late notice
(C) Notice of birth given after 1 year before 7 years
• Proof of birth from medical practitioner who attended birth
• Affidavit of SA citizen who witnessed birth if birth happened outside a
medical institution
• Child, foot, or fingerprint of child
• Fingerprints of parents
• Certified copies of parents ID
• Form setting out reason for late notice
(D) Notice of birth given after 7 years
• Proof of birth from medical practitioner who attended birth
• Affidavit of SA citizen who witnessed birth if birth happened outside a
medical institution
• Child, foot, or fingerprint of child
• Fingerprints of parents
• Certified copies of parents ID
• Form setting out reason for late notice
• Photo of child
(E) Child seeking to register his or her own
birth
• Form providing details of live events Including: Place of birth,
religious ceremonies performed, preschool attended, schools and
tertiary education attended, and employment record
6. No birth may be registered without a forename and a surname
7. Notice of birth of children born of married and unmarried parents can be given
• Under fathers’ surname
• Mothers surname
• Joint together double-barreled
8. A gamete donor or the father of a child conceived of rape or incest may
not be registered as a child’s father.
9. If parents marry after the birth of a child, the registration may be
amended to a child born of married parents.
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10. If a child born of married parents father die the child’s surname may be
change back to the mother’s surname
11. If a marriage is dissolved by divorce the child’s surname may be
changed to the mother’s surname
• If mother has sole guardianship
• If father gives consent
• Court may dispense with father consent
12. The Mother may apply to change the child surname to her new husband
surname if she has
• Written consent from the child’s father
• Unless she has sole guardianship, or the court dispense with the
consent
• If her new husband consent to the change in surname
13. The surname of any person may be changed with sufficient reason
• In case of a minor the guardian applies for the change in surname
• In case of an adult the request to change surname may be made by the
person
14. Any person may change their forename
• In case of a minor the guardian applies for the change in surname
• In case of an adult the request to change surname may be made by the
person
Learning Unit 4 – Interests of the unborn child
LEARNING OUTCOMES
(1) define the nasciturus fiction
(2) state the requirements that are necessary for this fiction to come into operation
(3) identify those interests in respect of which the fiction has been applied in our law,
and explain how the fiction is applied with each interest
(4) consider the question of whether the nasciturus is a legal subject, and distinguish
between the nasciturus fiction and the nasciturus rule
(5) apply the principles to a given sets of facts, with reference to authority
(6) briefly summarise the Choice on Termination of Pregnancy Act 92 of 1996 that
deals with the termination of pregnancy
DEFINITION AND REQUIREMENTS
Definition of nasciturus - A nasciturus is a conceived but unborn child. If you want to,
you may also use the term “foetus” instead of “unborn child”
What is a fiction? - Please take note that a fiction is something that is imaginary, a
presumption or an assumption that is not based on fact
Meaning of “in abeyance” - This only means that the interests are kept aside until the
child is born, and at birth the child receives the interests.
Nasciturus must benefit - Please take note that for the application of the nasciturus
fiction there is a condition that it must be to the unborn child’s advantage. This
condition will be complied with should the child and a third person, for example
parent, benefit together. The benefit must not, however, exist only to the advantage
of a third person
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