The South African Law of Persons

INTRODUCTION TO THE LAW OF PERSONS

Definition of the Law of Persons: Loosely defined as the part of private law determining which beings are legal subjects, when legal personality begins and ends, what legal status involves, and the effect of factors like minority or mental incapacity on status.
Objective and Subjective Law:
    * Objective Law: A system of norms or rules regulating community relations (e.g., fulfilling contracts, having a driver's licence).
    * Subjective Law (Rights): A network of legal relationships among subjects. Includes a dual relationship:
        * Subject-Subject: The relationship between the bearer of the right and other subjects (who have a corresponding obligation).
        * Subject-Object: The relationship between the bearer and the object of the right.
Legal Subjects vs. Legal Objects:
    * Legal Subject: An entity capable of having rights, duties, and capacities (legal personality). Includes Natural Persons (human beings) and Juristic Persons (associations like companies).
    * Legal Object: Anything in respect of which a subject can have rights but which cannot itself have rights. Categories include:
        * Corporeal things (tangible items).
        * Performance (human acts of doing or not doing).
        * Personality property (reputation, physical integrity).
        * Intellectual property (copyright, patents).
The Constitution and Transformative Constitutionalism:
* The Constitution of 1996 is the supreme law. All law and public power must comply with it.
* Transformative Constitutionalism: Using the Constitution as an instrument to move society toward justice, equality, and human rights. Every aspect of the law of persons must be evaluated through this lens.

THE BEGINNING AND END OF LEGAL PERSONALITY

Beginning of Legal Personality:
    * Requirements:
        1. Completion of Birth: Complete separation of the body of the mother and the child (severing the umbilical cord is not required).
        2. Born-alive Rule: The child must live after separation, even for a short period. Proof usually involves evidence of breathing or other medical data.
    * Viability: Some argue viability (ability to exist independently) is a requirement, but it is generally rejected in South African law due to its vagueness.
Registration of Births:
    * Governed by the Births and Deaths Registration Act 51 of 1992.
    * Notice must usually be given within 30 days. Both parents must give notice where possible.
    * Surnames: Following the Constitutional Court decision in Centre for Child Law v Director-General: Department of Home Affairs (2021), the distinction between the registration of surnames for children of married and unmarried parents was removed as unconstitutional. Now, all children can be registered under the surname of either parent or a double-barrel surname.
The Interests of the Unborn (Nasciturus Fiction):
    * The Adage: Nasciturus pro iam nato habetur, quotiens de commodo eius agitur (The unborn is considered born whenever it is to its advantage).
    * Requirements: Must have been conceived at the time of the benefit and must subsequently be born alive.
    * Fields of Application:
        * Succession: Distribution of estates is postponed to see if a live child is born. Applies to intestate and testate (class gifts) succession.
        * Maintenance: Courts may provide for an unborn child's maintenance in divorce orders for convenience, though this is not a strict application of the fiction.
        * Dependant's Action: A child born alive can claim damages for the loss of a breadwinner killed before the child's birth (Chisholm v East Rand Proprietary Mines Ltd).
        * Pre-natal Injury: In Road Accident Fund v Mtati (2005), the Supreme Court of Appeal held that a child can claim for pre-natal injuries once born alive using ordinary delictual principles, rendering the nasciturus fiction unnecessary in this field.
Termination of Pregnancy:
    * Governed by the Choice on Termination of Pregnancy Act 92 of 1996.
    * Permitted on demand within the first 12 weeks. Specialized grounds required from 13 to 20 weeks and after 20 weeks.
    * Minors: A minor may consent independently to termination, though they are advised to consult parents.
    * Constitutionality: The High Court in Christian Lawyers Association v Minister of Health (1998) ruled that a foetus does not have a constitutional right to life under section 11, as legal personality begins at birth.
End of Legal Personality:
    * Legal personality ends at death. Deceased persons have no rights or duties, though their bodies and former estates are legally protected.
    * Brain Death: The National Health Act 61 of 2003 adopts brain death as the standard for specific medical purposes.
    * Presumption of Death:
        * Common Law: An interested party applies to the High Court. No fixed period of absence is required; probability of death must be proven on a balance of probabilities.
        * Statutory: Under the Inquests Act 58 of 1959, the state takes initiative if an unnatural death is suspected. Requires proof beyond reasonable doubt.
    * Commorientes: If persons die in the same disaster and the sequence cannot be proven, there is no presumption of survival; they are generally found to have died simultaneously.

STATUS AND CAPACITIES

Concept of Status: A person's legal "standing" or the aggregate of their capacities, determined by attributes like age, domicile, or mental state.
Four Recognized Capacities:
    1. Legal Capacity: The capacity to have rights and duties. Everyone has this (even a newborn or mentally ill person), though the extent varies.
    2. Capacity to Act: The capacity to perform valid juristic acts (acts intended to result in legal consequences). Those lacking this (e.g., children under 7, mentally ill) cannot create binding contracts.
    3. Capacity to Litigate: The capacity to appear in court as a party to a lawsuit.
    4. Accountability (Criminal/Delictual): The capacity to be held responsible for wrongdoings, based on the mental ability to distinguish right from wrong.

DOMICILE

Definition: The place where a person is legally deemed to be constantly present for the purpose of exercising rights and fulfilling obligations.
The Domicile Act 3 of 1992:
* Replaced much of the common law. Abolished the revival of the domicile of origin.
* Principles: Everyone must have a domicile at all times; no one loses a domicile until they acquire a new one.
Kinds of Domicile:
    1. Domicile of Origin: Assigned by law at birth.
    2. Domicile of Choice: Acquired by an adult (18+) or major with mental capacity who is lawfully present at a place and intends to settle indefinitely.
    3. Assigned Domicile (Closest Connection): Assigned to those lacking capacity to choose (minors and mentally incapacitated). A minor's domicile is rebuttably presumed to be the parental home.

CHILDREN BORN OF UNMARRIED PARENTS

Terminology: The Children's Act 38 of 2005 moved away from "legitimacy" to terminology based on whether parents are married or unmarried.
Artificial Fertilisation:
* Children born of artificial fertilisation of a woman during a marriage/civil union are considered children of the spouses, provided the spouse consented.
* Gamete donors generally have no parental responsibilities or rights.
Parental Responsibilities and Rights (PRR):
    * Includes Care, Contact, Guardianship, and Maintenance.
    * Mothers: All biological mothers (except surrogates) acquire full PRR automatically.
    * Fathers:
        * Married fathers: Acquire PRR automatically.
        * Unmarried fathers: Acquire PRR automatically IF they lived with the mother in a permanent life partnership at birth OR they identified as the father and contributed to the child's upbringing and maintenance.
Maintenance: Both parents have a common-law duty to support, regardless of PRR. The case Petersen v Maintenance Officer extended the duty of support to paternal grandparents of children born of unmarried parents.

MINORITY

The Age of Majority: Lowered to 18 years by the Children's Act (2007).
Status of an Infans (Under 7):
    * Zero capacity to act; guardian must act on their behalf.
    * Zero capacity to litigate.
    * Zero criminal/delictual accountability.
Status of a Minor (7 to 18):
    * Limited Capacity to Act: Generally needs a guardian's assistance for contracts. Unassisted contracts are "limping"—enforceable against the other party but not the minor (unless ratified).
    * Statutory Exceptions: Minors 12+ can consent to their own medical treatment (if mature); minors 16+ can make a will.
    * Marriage: Minors need guardian consent and sometimes Ministerial consent (females <15, males <18) for civil marriages. They cannot conclude civil unions.
    * Unjustified Enrichment: An unassisted minor who receives a benefit may be liable to return the extent of their enrichment, even if they aren't contractually liable.
    * Restitutio in Integrum: A minor who entered a binding contract (with assistance) that was prejudicial from the start can apply to have the status quo ante restored.
Termination of Minority: Occurs via attainment of age 18, marriage, or (historically) venia aetatis or emancipation.

MENTAL ILLNESS AND INCAPACITY

Legal Status: A mentally ill person who cannot understand a transaction has no capacity to act. Their juristic acts are void ab initio. This applies even during lucid intervals if a supplier under the Consumer Protection Act should have known of a court order.
Certification: Does not strictly determine status but shifts the burden of proof regarding sanity.
Mental Health Care Act 17 of 2002: Regulates assisted and involuntary treatment and the appointment of an administrator for property.
Curatorship:
    * Curator ad litem: Represents the person in litigation.
    * Curator bonis: Administers their property/estate.
    * Curator personae: Makes decisions regarding the person’s body/well-being.

PRODIGALITY, ALCOHOL, AND INSOLVENCY

Intoxication: Alcohol/drugs only affect capacity if they deprive the person of the power of reasoning. The resulting act is void.
Prodigality: A person who reckless squanders assets. Status is only restricted once they are interdicted by a court. They are treated similarly to minors (needing a curator for juristic acts).
Insolvency: Sequestration divests the insolvent of their estate (vesting it in the Master/Trustee). The insolvent retains limited capacity to enter contracts (with written trustee consent if affecting the estate) and retains locus standi for personal matters (e.g., status, work remuneration after sequestration).