Law of Persons - Flashcards

Flashcards for reviewing key concepts and cases in Law of Persons.

J v Director General, Department of Home Affairs 2003 (5) SA 621 (CC)

Placing a child born because of the artificial fertilization of a lesbian life partner on the same footing (status) as a child born because of the artificial fertilization of a married woman, for purposes of registration of birth.

J v Director General, Department of Home Affairs 2003 (5) SA 621 (CC) - Bill of Rights Influence

Demonstrated how the Bill of Rights in the Constitution influenced and changed the common law regarding family rights.

J v Director General, Department of Home Affairs 2003 (5) SA 621 (CC) - Equal Treatment

Represented a move toward equal treatment regardless of parents’ sexual orientation or marital status.

J v Director General, Department of Home Affairs 2003 (5) SA 621 (CC) - Transforming LOP

Early case that showed the Constitution was transforming the Law of Persons in South Africa.

Du Toit v Minister of Welfare and Population Development 2003 (2) SA 198 (CC)

Allowed for same-sex partners to adopt jointly, so their children can benefit from the legally recognized guardianship and care of both adoptive parents.

Du Toit v Minister of Welfare and Population Development 2003 (2) SA 198 (CC) - Bill of Rights Impact

Demonstrated the transformative impact of the Bill of Rights on family law.

Du Toit v Minister of Welfare and Population Development 2003 (2) SA 198 (CC) - Equal Rights

Advanced equal rights for same-sex couples in matters of adoption.

Du Toit v Minister of Welfare and Population Development 2003 (2) SA 198 (CC) - Children's Interests

Protected interests of children by ensuring they could have legal recognition of both their adoptive parents.

Du Toit v Minister of Welfare and Population Development 2003 (2) SA 198 (CC) - Reshaping LOP

Represented another early Constitutional Court decision that reshaped the Law of Persons in South Africa.

Bhe v Magistrate, Khayelitsha (Commissioner for Gender Equality as Amicus Curiae) 2005 (1) SA 580 (CC)

In customary law, ruled that the primogeniture rule that favored male heirs was unconstitutional, and found that there should be no distinction between children who are born in or outside of marriage.

Centre for Child Law v Director-General: Department of Home Affairs (CCT 101/20) [2021] ZACC 31

Court declared section 10 of the Birth and Deaths Registration Act 51 of 1992 unconstitutional as it did not allow unmarried fathers to register the births of their children in the absence of the mother.

Centre for Child Law v Director-General: Department of Home Affairs (CCT 101/20) [2021] ZACC 31 - Discrimination

Addressed discrimination against unmarried fathers, who previously could not register their children’s birth in their own name if the mother was unable or unwilling to do so.

Centre for Child Law v Director-General: Department of Home Affairs (CCT 101/20) [2021] ZACC 31 - Home Affairs Requirement

Home Affairs is now required to make more appropriate provisions when the mother is not available.

Centre for Child Law v Director-General: Department of Home Affairs (CCT 101/20) [2021] ZACC 31 - Rights of Unmarried fathers

Recognized the rights of unmarried fathers to register their children’s births independently under certain circumstances.

Centre for Child Law v Director-General: Department of Home Affairs (CCT 101/20) [2021] ZACC 31 - Equal Parental Rights

Advanced equal parental rights regardless of marital status.

S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC)

Provided important clarity on Section 28(2) of the Constitution regarding the best interests of the child.

S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) - Key Legal principle

Established that the best interests of the child are paramount but not absolute.

S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) - Legal principle established

Section 28(2) is a right, and as a right in a non-hierarchical system of rights, it is itself capable of limitation.

Minister of Welfare and Population Development v Fitzpatrick (Centre for Applied Legal Studies as Amicus Curiae) 2002 (3) SA 422 (CC)

Refined the interpretation of the paramountcy principle (child’s best interest is paramount).

Minister of Welfare and Population Development v Fitzpatrick (Centre for Applied Legal Studies as Amicus Curiae) 2002 (3) SA 422 (CC) - Balance

Established a more balanced approach to weighing children’s rights against other constitutional rights.

Minister of Welfare and Population Development v Fitzpatrick (Centre for Applied Legal Studies as Amicus Curiae) 2002 (3) SA 422 (CC) - Section 28(2)

Help courts to understand how to apply Section 28(2) in practice.

Minister of Welfare and Population Development v Fitzpatrick (Centre for Applied Legal Studies as Amicus Curiae) 2002 (3) SA 422 (CC) - Section 28(2) as key principal

Section 28(2) of the Constitution has become a key principle in the Bill of Rights jurisprudence.

Pinchin v Santam Insurance Co Ltd 1963 (2) SA 254 (W)

Applied the nasciturus fiction and concluded that the child could indeed claim compensation for injuries suffered by him as a foetus, though in this case, causation could not be proven.

Pinchin v Santam Insurance Co Ltd 1963 (2) SA 254 (W) - outcome

As can be gathered from Roman Law and authorities on Roman Dutch law, it is established that the interest of the unborn child is protected.

Lange v Lange 1945 AD 332

Although the man understood the nature of the juristic act (i.e. the wedding) at the time, the court held that the marriage should be declared null and void since his motivation to conclude the marriage was a delusion and an indication of his mental illness.

Lange v Lange 1945 AD 332 - outcome

Appellate Division held that a person is mentally ill not only if he or she cannot understand the nature of the transaction in question, but also if he or she does understand the nature and consequence of his or her juristic acts but motivated or influenced by delusions caused by his or her mental illness.

Delius v Delius 1960 (1) SA 270 (N) 275

Emphasized the necessity of publication and ordered that the court order be published in the Government Gazette and in a local newspaper.

Ex parte Graham 1963 (4) SA 145 (D)

Deals with the bequeathment of an estate in a commorientes setting.

Road Accident Fund v Mtati 2005 (6) SA 215 (SCA)

Father of a child instituted an action against the Road Accident Fund for damage suffered by the child in a car accident. The child was still in the womb at the time of the incident.

Road Accident Fund v Mtati 2005 (6) SA 215 (SCA) - questions

Related to the provisions of the legislation in terms of which the action was instituted (the Multilateral Motor Vehicle Accidents Fund Act 9 of 1989) which prescribed that the Fund is under obligation to compensate any ‘person’ for damage as result of injury

Road Accident Fund v Mtati 2005 (6) SA 215 (SCA) -questions

Was the nasciturus a person (legal subject) for purposes of the Act?

Road Accident Fund v Mtati 2005 (6) SA 215 (SCA) - outcome

The application of the nasciturus fiction in the field of the law of delict was therefore unnecessary & incorrect

S v Chretien 1981 (1) SA 1097 (A)

Appellate Division decided that even voluntary intoxication may exclude criminal responsibility

Voice of the Unborn Baby NPC v Minister of Home Affairs 2021 (4) SA 307 (GP)

Gauteng Division of the High Court declared the 26-week requirement unconstitutional as it violates the right to dignity of parents of foetuses that are miscarried before that time.

Voice of the Unborn Baby NPC v Minister of Home Affairs 2021 (4) SA 307 (GP) - time

Court suspended the declaration of the unconstitutionality for 12 months to give Parliament an opportunity to amend legislation.

Definition: Law of Persons

Regulates the legal existence, status & capacity of persons.

Core focus: Law of Persons

Who qualifies as a legal subject and what they can legally do. (E.g. Birth registration, death certificates, legal capacity determinations)

Objective law (also called positive law)

System of norms/rules prescribing conduct for everyone. Examples: Prescriptions that determine that a car must be driven on the left-hand side of the road; that one person may not unlawfully attack another; how a contract or a marriage must be concluded etc.

Subjective law

Network of legal relationships among legal subjects. Described as the claim that a legal subject has on a legal object.

Subject-Subject Relationship

Legal relationship between the bearer of rights and other legal subjects. This is the subject-subject relationship. This relationship consists of a right and a corresponding obligation. The legal subject’s right exists against all other legal subjects, and they are obliged to respect it.

Subject-Object Relationship

Legal relationship between the bearer of rights and the object of the right. This is the subject-object relationship.

Public Law

Broadly deals with those legal rules that apply when the State acts with State authority.

Private Law

A collection of legal rules that applies to a variety of legal relationships in which the acting legal subject in the relationship is called a person. Examples include relationship between contracting parties; relationship between testator and heir; family-law relationship between spouses.

Legal Subject

Entities that can have rights, duties, and capacities.

Legal Objects

Anything in respect of which a legal subject may have rights, duties and capacities. Refers to objects upon which the law has not conferred the capacity to have rights, duties & capacities, and which cannot participate in legal interaction.

Corporeal Things

Physical objects (land, cars, buildings).

Immaterial Property

Non-physical property (patents, copyrights).

Personality Property

Protected aspects of personality (dignity, reputation).

Performance

Actions demanded from others (services, payments).

Legal Subjects: Natural Persons

All human beings recognized as legal subjects irrespective of their mental or intellectual capacity. They have rights from birth until death.

Legal Subjects: Juristic Persons

A community or associations of people that, according to law, has an independent right of existence Legal entities separate from their members.

Rights

Legal claims a subject can enforce (bodily integrity, privacy).

Duties

Legal obligations a subject must fulfil (care, honouring contracts).

Legal Subjectivity

The characteristic of being a legal subject in legal interaction. It begins at birth.

Nasciturus Fiction

Latin principle - The unborn is deemed born whenever it is to its advantage.

Law of Intestate Succession

Determines who will inherit a person’s assets when the person dies without leaving a valid will.

Law of Testate Succession

Determines who will inherit a person’s assets when the person has left a valid will.

Consequences: Termination of Pregnancy Act Section 2

A woman's pregnancy may be terminated during the first 12 weeks of gestation at the request of the pregnant woman

Definition: Legal Status

Status refers to a person's standing in the legal world

Definition: Legal Capacity

The capacity to have rights and duties

Definition: Capacity to Act

Refers to the capacity to perform valid juristic acts

Definition: Capacity to litigate

The capacity to bring and defend an action at law

Capacity to Be Held Accountable for Crimes and Delicts

The capacity to be held responsible for crimes and delicts.

Definition: Domicile of Choice

A domicile of choice is the domicile of a person with capacity to act has chosen for himself or herself by the exercise of his or her free will

Definition: Domicile

The place where a person is legally deemed to be constantly present, for the purpose of exercising rights & fulfilling obligations, even when factually absent.

Domicile of a Minor

A minor is domiciled at the place with which he or she is most closely connected Section 2(2) of the Domicile Act contains a rebuttable presumption that if a minor normally has his or her home with one or both his or her parents, the parental home is the minor’s domicile.

Children of Married Parents

A child born of married parents, includes children whose parents subsequently married each other – irrespective of whether they could have married each other at the time of conception or birth of the child.

Children of Unmarried Parents

Children whose parents were not married or civil union at conception, birth or between. Also include children of single adoptive parents and only the adopted parent has parental responsibilities & rights towards that child

Artificial Fertilisation

Introduction by means other than natural means of male gamete into internal reproductive organs of female reproductive organs (defined in Children’s Act 38 of 2005)

Definition: Emancipation to Minors

Is like situation where a minor performs a valid juristic acts w/ the assistance of his/her guardian

Definition: Adoption

Creates new legal relationships between the child and his or her adoptive parents that did not exist prior to the adoption, obliterates the parental responsibilities & rights between the child and his or her biological parents (creates a new legal relationship)

Legal status of Infans (Under 7 Years)

The legal status of an infans

Mentally Ill Persons: Legal Status Minors (7-18 years)

Cannot validly conclude juristic acts incurring obligations. Require parental/guardian consent for valid marriages

Curatorship

Legal mechanism where a court appoints someone to manage affairs of an incapacitated person

Curator Ad Litem

Is appointed to assist someone in legal proceedings that the assisted person cannot conduct himself or herself-reprensents incapacitated person in legal proceedings.

Curator Bonis

Appointed to look after the patrimonial interests of the person under the curatorship-administers financial affairs and property.

Curator Persona

Appointed to take care of the personal needs of the person under curatorship.-takes care of the persona needs of a person.

Prodigality

Person with normal mental abilities who squanders assets irresponsibly due to character or will defects Status Change: Occurs only after declaration and prohibition from self-management

Private Law determined by domicile

In SA law a person’s status in private law is generally determined by the law of the place where the person is domiciled-legal doc based.