Chapter 1 Law of Persons

1.1) In South Africa there are a number of sources of law.

• The Constitution(Supreme law of the land.

• Legislation(Statutes)

• Common Law(based on Roman Dutch Law and English Law)

• Customary Law

• Case Law (court decisions)

Law of persons falls under Private Law

• Private Law involves weighing + demarcating interests of an individuals/persons.

Private law consists of:

• The law of persons

• Family law

• Property law

• Law of personality

1.2)The Law of Persons: Defined as that part of the objective law regulating the coming into being, private law status and the coming to the end of a natural person/legal subject.

• Law of persons is part of objective law/National law and can be described as a norm complex.

• Legal norms allocate juristic capacities = Capacity to act,Capacity to litigate,Legal capacity to legal subjects

• The extent/existence of these capacities that a legal subject has determines their status/Standing in legal intercourse.

Objective law + subjective law must be distinguished from each other: Objective law is a norm complex/system of legal rules that allocate juristic capacities to legal subject while Subjective law regulates the relationship between legal subjects and their subjective rights to certain objects.

Four categories of legal objects:

• Real (corporeal) things: Tangible objects with value + capable of human dominion

Eg:Buildings ,land,vehicles ,money

The right=Real Right

• Acts/Performances;Conduct by which smth given/done/not done

Eg:a contract with a payment being/not being followed through

The right=Personal Right

• Intellectual Property:Intangible recreations/products of human intellect

Eg:Contents of a book,a discovery,work of art

The right=Intellectual Property Right

• Personality Property:Aspects of a persons personality

Eg; Physical integrity,good reputation,honour,dignity

The right=Personality Right

Each of these subjective rights bestow entitlements on the bearer ( the bearer of a property right is entitled to property)

The counterpart of a subjective right is an obligation.

The relationship btwn a legal subject and a legal object is known as a subject-object relationship which in turn involves a relationship btwn the legal subject and other persons known as a subject-subject relationship.

A legal subject is obligated to respect another legal subjects subjective rights.=duty

1.3)A Legal Subject: The bearer of juristic capacities , subjective rights(including appropriate entitlements) and legal duties.

In private law there a 2 catagories of legal subjects: Natural Persons and Juristic Persons

1.3.1)Natural Persons: In SA private law every living person is a legal subject.

1.3.2)Juristic Persons: Social Entities/Associations of people who according to law have an independent right of existence. Entities can be bearer of juristic capacities,subjective rights( and accompanying entitlements) and legal obligations.

Juristic persons obtain+excercise these rights/duties through their office bearers.

Not all eductaional institutuions,business enterpriseschurch associations,political parties,sports etc can claim to funtion as a legal subject. If a social entity wants to function as a legal subject it must comply with common law requirements/formalities to be established a juristic person.

juristic Persons divided into 3 catagories with refernce to these formalites:

1) Certain associtions that can only be established with States permission. Due to the States interest in the esam=blishment and functioning of these associtations their capacity to act as legal subject=regulated by statute.

Thefore universities aqquire legal subjectivty and various business enterprises of national interest (SABC,ESKOM) are also established in this way.

2) The state also controls 2nd catagory of associations with the interest of society BUt permission of executive authority not required for establishment of association. Associotion need only to register in terms of their relevant(general) statue.

Enterprises functioning for profit/gain are classified in this catagorya and the nature of the enterprise determineunder which statute the organisation must register under.

Eg; Most businesse rgister under Campanies Act or Close Coporations act. Banks Register in terms of BAnks Act,Mutual Banks under Mutual banks Act and Co-operatives under Co-operatives Act.

However not all busineses exist as a juristic person: Businesses operationg as a partnership and trusts do not not funcion a legal subjects.

3) 3rd group of associations exist as juristic persons without any state intervention due to fact that they meet common law requirements for establishment of a jursitic person.

These requirements entail the association must have perpetual succession= has to continuously exist despite fluctuations in its membership, it should be bearer of its own rights/duties irrespective of the rights/duties of its individual members AND entity must strive toward predetermined goal.

In this way church groups,polital parties + trade unions aqquire legal subjectivity.

1.4) Legal Subjectivity: Concerns the characteristic of being a legal subject in legal intercourse.

This definition acknowledges fact that legal subjects engage in other activites=commerce,social engagement HOWEVER as soon as they egange in lrgal intercourse their involvement is known as LEGAL SUBJECTIVITY.

Both Juristic+Natural Persons have legal subjectivity however Legal subjectivity is used to describe a natural person and legal personality used to describe juristic persons legal subjectivity.

Nobody other than human beings/ juristic persons can be vested with legal subjectivity.(NO ANIMALS OR DEAD PPL have legal subjectivity)

The Animals Protection Act 71 was made as cruelty to animals is criminalised and to regulate society NOT to catagorize aniamls as legal subjects.

1.4.1) Customary Law: Forms part of SA’s sources of law. The Constitution protects the existence of any rights/freedoms that are in custoary law as long as they are consistent with the Bill or Rights.

ustomary Law (Indigenous Law):

Customary law refers to the traditional customs and usages observed amongst the indigenous African people of South Africa and that forms part of the culture.

S.211(3) of the Constitution makes it clear that the court MUST apply customary law when it is applicable which leaves the court with no choice as to whether customary law should be used or not as long as it is

a) applicable to a dispute and

b) in line with the Constitution.

When is customary law applicable?

Two possibilities:

Agreed to be bound: If two parties are in agreement that customary law is applicable to them or it can be easily ascertainable taking into account previous actions conducted by the two parties.

Example: (Ukuvusa custom)The conclusion of lobola negotiations would serve as an indication that these parties have entered into a customary marriage.

If this is the case, the court can take judicial notice of these rules.

Judicial notice:

Judicial notice is: A court's acceptance, for purposes of convenience and without requiring a party's proof, of a well-known and indisputable fact. It pertains to the court's power to accept such a fact as law.

Indigenous law is living law, which means they continually develop and re-develop within the legal systems of the communities in which they apply.

If court does not take judicial notice, rules may be proven through presentation of oral evidence, judicial precedent, or written material.

Therefore the views of a community do indeed influence legal systems.

1.5) Status: The sum total of a legal subjects capacities.

Status not based on persons income,possessions or social standing. It refers to a subjects standing in the legal system and indicates individuals role/function in the eyes of the law.

Objective law allocates capacities to a person and the extent/existence of those capacities determines a persons status.

Several factors determine extent of a persons capacities:Domicile, age, mental disability and certain economic conditions such as prodigality(spending extravagantly) and insolvency(state of being unable to pay off debts)

The relevant capacities dealt with in private law are: Legal Capacity, Capacity to Act and Capacity to Litigate

1.5.1) Legal Capacity: The juristic capacity that vests the individual with legal subjectivity and enables him/her to hold offices as a legal subject.

No person in SA is without legal capacity. “Legal incapacity” is impossible. Each person has legal capacity,HOWEVER there are a number of factors that determine the extent of ones legal capacity resulting in limited capacity.

Eg:A person under age of puberty cant marry, person under age of 16 cant be a testator etc.

1.5.2) Capacity to Act: The juristic capacity to enter into legal transactions.

Capacity to Act indicates which juristic acts a LS is able to perform in legal intercourse. Unlike Legal capacity which is something every living person has the Capacity to Act is limited and some have no capacity to act at all. This is determined by a set of factors.

No Capacity to act: Infans(child under 7 yrs)

Limited Capacity to Act: Minors (can only act with assistance from parents/guardians as they still lack necessary experience) Minors can however accept donations without parents/guardians

Full Capacity to Act: Adults (Majors)

1.5.3) Capacity to Litigate: The juristic capacity that enables a person to act as a plaintiff, defendant, appellant or respondent in a private-law suit or civil action.

Same as Capacity to Act where either one has full Capacity to Litigate or no Capacity to Litigate at all.

No Capacity to Litigate: Infans = cannot sue/be sued in his/her own name.

Limited Capacity to Litigate: Minors= can sue/be sued but parent/guardian must litigate for + on behalf of minor

Full Capacity to Litigate: Adults (unless mental disability etc effects their status)

1.6) Law of Persons and Justice

Law of persons distinguishes between groups of people on the basis of factors.
Eg: Age
The law provides that girls can marry from the age of 12 years, but that boys of the same age cannot.
Boys can only marry from the age of 14 years. This is due to the scientific fact that girls reach puberty at the age of 12 while boys only reach at 14.

Each case of differentiation should be tested independently in order to determine if the basis is relevant to the specific case its applied to.

The age differentiation btwn boys and girls and the age of marriage is justified as its a scientific fact that proves that girls reach maturity sooner than boys and marriage is intimately linked to sexual maturity.

Law of Persons and the Constitution: SA is a democracy where the supremacy of the Constitution is acknowledged. Chpt 2 of Constitution is the Bill of Rights which is the cornerstone of democracy and enshrines fundamental rights of all people. THESE RIGHTS MUST BE RESPECTED BY THE STATE.

All people are equal before the law and the state cannot discriminate directly or indirectly against anyone.

The relationship btwn the state and the individual is known as the “vertical effect”

The relationship btwn individuals inter se is known as the “horizontal effect”

It can be stated that the Bill of Rights is intended to apply to both the relationship btwn the state and the individual(vertical effect) and the relationship btwn individuals inter se(horizontal effect). Therefore the principles of the law of persons should always be tested against our fundamental rights.

The Bill of Rights provides guidance when one must decide whether discrimination/differentiation is fair or not. The Bill of Rights may be limited only to the extent that the limitation is reasonable + justifiable based on these factors:

a) the nature of the right

b) the importance of the purpose of the limitation

c) the nature and extent of limitation

d) the relationship btwn the limitation and its purpose

Differentiation must be fair, reasonable and justifiable + in line with the Bill of Rights.