Presumption of Death

The Beginning and End of Legal Personality

2.1 Nasciturus Fiction

Concept:

The concept of nasciturus refers to a fetus in the womb, taking into account its legal status before birth. Legal protection of the nasciturus is not primarily focused on the rights of the fetus itself, but rather on the future rights of the child once born. If a child is not born alive, the legal recognition and protection of the nasciturus cease entirely.

Legal Personality:

Legal personality is established at the moment of birth. According to legal principles, a nasciturus is considered 'born' only when a living child emerges from the womb.

Nasciturus Fiction:

This principle acknowledges a fetus' interests indirectly by extending certain protections, which are activated only upon the successful birth of the child.

Two Views:

• Nasciturus Rule: Recognizes specific circumstances under which legal personality may begin at conception, primarily focused on certain rights that may be necessary to safeguard the child's future interests.

• Nasciturus Fiction: Maintains that legal personality commences at birth, regarding conception mainly as advantageous without conferring any legal status upon the fetus itself.

2.2 Termination of Legal Personality

2.2.1 General Aspects

Legal Personality Termination: A person's legal personality concludes with their death. Upon death, individuals have no rights or obligations enforceable by law. The law mandates a duty of care for the deceased body, ensuring its dignified disposal, which is informed by societal interests and values surrounding respect for the dead. Former assets of the deceased are subsequently regulated to ensure creditors are paid and heirs inherit equitably, focusing on the economic implications rather than the deceased's interests.

2.2.2 Definition of Death

Before the National Health Act 61 of 2003, South African law lacked a precise legal definition of death. The Act introduced the concept of brain death as the benchmark for legal death, relevant primarily in contexts of health services and organ donation. However, courts retain the discretion to interpret death beyond the confines of this Act in other contexts, allowing for more nuanced understandings of what constitutes death legally.

2.3 Proof of Death

Importance:

Proving death is crucial in legal contexts, especially concerning the administration of estates and the entitlements of survivors, such as a spouse's right to remarry.

Methods of Proof:

Natural deaths are generally confirmed through a medical certificate, while evidence for unnatural deaths may require official inquests to ascertain the circumstances. An official death certificate, once issued, serves as prima facie proof of death, facilitating processes like inheritance and civil status changes.

2.4 Presumption of Death (POD)

2.4.1 Common-Law Procedure

Process: Interested parties can file with the High Court to establish a presumption of death if someone's whereabouts are unknown. The burden lies on the applicant to present evidence suggesting that the missing person is likely deceased. Previously, a strict seven-year absence rule was enforced, but this has been relaxed considerably in recent times.

2.4.2 Legislative Presumption

The Inquests Act 58 of 1959 outlines procedures when death is suspected but unconfirmed. A magistrate must hold an inquest in instances where foul play or unnatural causes are presumed.

2.5 Effects of Presumption of Death

2.5.1 Rebuttable Presumption

An order presuming death is not a conclusive declaration of death; rather, it is a rebuttable presumption, allowing the introduction of future evidence to challenge this assumption.

2.5.2 Estate Distribution

Upon establishing a presumption of death, the estate may be managed as if the individual is deceased. However, if the presumed dead person later reappears, heirs might be required to provide security for the return of any assets distributed.

2.5.3 Dissolution of Marriage or Civil Union

The Dissolution of Marriages on Presumption of Death Act 23 of 1979 grants courts the authority to dissolve marriages or civil unions when the spouse's death is presumed. Surviving partners have the right to apply for dissolution; however, the court holds discretionary power in deciding such cases, emphasizing the importance of due consideration of each circumstance.

2.6 Setting Aside a Death Presumption

A presumption of death can be rescinded by the court if new evidence emerges that indicates the presumed deceased individual is, in fact, alive. Interested parties are entitled to approach the court to prevent further distribution of the estate until clarification is obtained, safeguarding rightful claims.

2.7 Registration of Deaths

The Births and Deaths Registration Act mandates the reporting of all deaths to relevant authorities, regardless of the underlying cause.

Stillbirths:

Stillbirths are defined by a minimum gestational period of 26 weeks to qualify for death reporting and applicable burial orders. This provision ensures that stillbirths receive appropriate acknowledgment within legal frameworks.

2.8 Duty to Bury the Deceased

Burial Orders:

No burial or cremation may occur without a burial order, which is issued following the reporting of death. Legal reverence necessitates that burial instructions be kept, and if no instructions exist, legal responsibilities default to the deceased's heirs.

2.9 Conclusion

The legal framework governing the transitions of legal personality, from birth to death, integrates essential procedures and protections for individuals while addressing the rights of the living and the treated dignity of the deceased.