Presumption of Death

Chapter 2: The Beginning and End of Legal Personality

2.1 Nasciturus Rule

Concept of Nasciturus: Refers to an unborn child who is considered to have rights as if born alive when it benefits the unborn. Thus, legal protections are given to an unborn child particularly in matters affecting inheritance, property rights, and parental care.Legal Personality: Generally begins at birth; however, under certain conditions, the law protects the interests of the unborn until he/she is born alive. This legal fiction allows for the unborn to have rights and interests recognized by the law, primarily to ensure that their future well-being is safeguarded.Nasciturus Fiction: Asserts that from a legal perspective, rights extend to the unborn if it would be advantageous to them as if they had been born. This doctrine is significant in cases of wrongful death claims or inheritance issues, where the unborn's potential for life and rights must be considered.

2.2 Termination of Legal Personality

Death: Marks the end of a person’s legal personality; the deceased have no rights or obligations, but the law still protects the disposal of the body and assets. This means that while the individual no longer has legal standing, their estate and personal affairs must still be managed according to established legal protocols.Community Interests: Regulations around the disposal of the deceased's body exist to maintain public health and respect for relatives. Proper disposal methods and burial rites must be followed as they hold not only legal significance but also cultural and social importance.Legal Definition of Death: Adopted brain death as the legal criterion per the National Health Act of 2003. This definition aligns medical notions with legal frameworks to ensure clarity in situations of end-of-life care and estate management.

2.3 Proof of Death

Importance: Proof of death allows for the administration of the estate and permits the surviving spouse to remarry. It acts as a necessary legal document that facilitates various proceedings post-death. Methods of Proving Death: Through certificates issued by medical practitioners indicating natural causes. In cases of suspected unnatural causes, an inquest is conducted to determine the circumstances surrounding the death.Official Death Certificate: Issued post-reporting of death to the Director-General of Home Affairs, providing prima facie proof of death. It is essential for settling legal matters, including insurance claims and property transfer.

2.4 Presumption of Death (POD)

2.4.1 Common-law Procedure

Interested parties (creditors, heirs) may apply to the High Court for a presumption of death after a person has been missing for a period. The length of time required for this presumption varies but often depends on the context of the individual's disappearance.Criteria for Presumption: Bedrock is on a preponderance of probabilities. Absence and circumstances of the missing person evaluated but no fixed timeline; may be decided on various factors including health and age before disappearance, providing a flexible approach to cases.

2.4.2 Statutory Procedure

Inquests Act of 1959: Mandates that inquiries regarding deaths under unnatural circumstances must be conducted. This is crucial in ensuring that no foul play has occurred and to maintain public trust in the legal system.Judicial Findings: The judicial officer must record the identity, cause, and date of death, which all become part of the public record, serving both evidentiary and historical functions.

2.5 Effects of Presumption of Death

2.5.1 Rebuttable Presumption

Presuming death does not definitively mean the person is dead; it is rebuttable. Evidence can later emerge that may overturn this presumption, especially if the presumed deceased reappears. Estate Management: After presumption, the estate may be divided among heirs with provisions for restoration should the presumed deceased return, balancing the rights of the heirs with the potential future claims of the presumed individual.

2.5.2 Marriage or Civil Union

Dissolution Act (1979): Regulates the dissolution of marriages upon presumption of death, allowing the surviving spouse to apply for dissolution concurrent with the presumption of death. This act considers scenarios where a partner's disappearance leaves the other in prolonged uncertainty.**Automatic dissolution occurs upon confirmation of death in inquest findings, bypassing separate application, which simplifies the legal process for survivors.

2.6 Setting Aside Presumptions

Courts can set aside a presumption of death if evidence shows the presumed deceased is alive. This mechanism serves to ensure that individuals are not unfairly deprived of their rights or needlessly declared deceased. Interested parties may request that the order of presumption be vacated and recover any benefits received, making the legal framework adaptable to changing circumstances.

2.7 Registration of Deaths

Births and Deaths Registration Act: Obliges reporting of all deaths and stillbirths to the Director-General. This measure is essential for maintaining accurate public health records and demographics.Notification Requirement: Must report regardless of the cause; law recognizes procedural needs for both natural and unnatural deaths to ensure accountability and transparency in the legal system.

2.8 Duty to Bury the Deceased

Burial Order: Issued only after correct notification of death/stillbirth per the Act, ensuring no burial occurs without proper legal clearance.Foetal remains: Classified as medical waste for non-viable fetuses; legal rights of burial for infants who meet criteria—this distinction illustrates the varying legal treatment based on viability and recognized rights.High Court Ruling: Statement against the 26-week gestation period for stillbirth notification, citing constitutional rights. This seeks to ensure that individuals' rights to ensure dignity in death are respected and upheld.Compliance with Instructions: The deceased's last wishes regarding burial must be respected unless illegal or impractical, underlining the importance of individual autonomy even in death.