LAP Chapter 1
Law of Persons
Definition
Part of private law which:
Determines which beings are legal subjects.
Specifies when legal personality begins and ends.
Involves considerations of status.
Outlines effects of various factors on a person's legal status.
Law and Rights
Two perspectives on law:
Objective Sense:
Posited by competent bodies.
Regulates relations peacefully and justly among community members (e.g., avoidance of damage, contract fulfillment).
Subjective Sense:
Focuses on legal relationships among legal subjects (e.g., ownership rights over a motor vehicle).
Rights Relationships
Two types of rights relationships:
Subject-Subject Relationship:
Legal relationship between rights bearer and other legal subjects.
Rights entail obligations for others to respect these rights.
Subject-Object Relationship:
Relationship between rights bearer and the object (e.g., ownership of a motor vehicle).
Legal rights are defined and limited by legal norms (e.g., one can drive a vehicle but cannot cause harm to others).
Legal Subject and Legal Object
Legal Subject
An entity able to acquire rights, duties, and capacities.
Generally refers to humans recognized by law.
Legal Object
An object that does not possess rights, duties, and capacities.
Cannot participate in legal and commercial traffic.
Examples include furniture, immovable property, and animals.
Categories and Types
Categories of Legal Objects (pages 2-3):
Corporeal things.
Performance.
Personality property.
Intellectual property.
Types of Legal Subjects (pages 3-4):
Natural person.
Juristic person.
Beginning and End of Legal Personality
According to South African law:
Legal personality begins at birth under specific conditions:
Birth must be fully completed (body separation).
Compliance with the "born alive" requirement.
A stillborn child or child who dies during birth does not acquire legal personality.
The Interest of an Unborn Child
Nasciturus Fiction:
Law does not recognize unborn children as legal subjects.
Protects unborn child's interests by pretending it has rights at conception for its benefit.
Application is dependent on specific situations where potential benefit is identified.
Requirements for Nasciturus Fiction
Must have been conceived when the benefit is intended to accrue.
Must be born alive for rights and duties to be acquired.
If not born alive, treated as if never conceived.
Application of this fiction must be to the benefit of the nasciturus, not third parties.
Applications of Nasciturus Fiction
Primarily in areas of succession:
Intestate Succession: Protects unborn's potential inheritance rights until it is certain a live birth occurs.
Testate Succession: Rights are considered under a valid will.
Related legal cases (e.g., Ex parte Boedel Steenkamp).
Also applied in maintenance, dependent's action for loss of support, pre-natal injury, and guardianship/care scenarios (e.g., Friedman v Glicksman).
Termination of Pregnancy
Legislation: The Choice on Termination of Pregnancy Act 92 of 1996.
Addresses the legality of pregnancy termination, especially in the context of illegal abortions.
Circumstances for Termination
Permitted on demand:
During the first 12 weeks.
After 12 weeks with specific grounds determined by a medical practitioner:
Risks to the woman’s physical/mental health.
Risk of severe abnormalities in the foetus.
Result of rape or incest.
Significant impact on the woman’s socio-economic situation.
After 20 weeks: Termination only if severe risks to woman or foetus are identified by qualified practitioners.
Consent Requirements
Only consent from the pregnant woman is required.
Pregnant minors should be advised to consult with guardians, but consent cannot be denied if they opt not to consult.
Referenced case: Christians Lawyers Association of South Africa v The Minister of Health.