Study Unit 1 2

STUDY UNIT 1: AN INTRODUCTION TO THE LAW OF PERSONS

Importance of Studying Law of Persons:
- The law of persons is a critical branch of law that affects all human beings, irrespective of their age or mental capacity.
- Understanding the law of persons is essential due to the increasing number of statutes and legislation that impact individual legal personality, particularly:
  - The Constitution
  - The Children’s Act
  - The Child Justice Act

The Constitution:
- The Bill of Rights in Chapter 2 of the Constitution enshrines fundamental rights, which are binding on the state.
- A significant right included is the right to equality (Section 9), underscoring that all individuals must be treated equally under the law.
Application of Right to Equality:
- Case Law:
  - J v Director General, Department of Home Affairs (2003): A child born of assisted fertilization from a lesbian life partner is considered equal to a child born to a married woman under similar circumstances.
  - VJV v Minister of Social Development (2023): This case reinforces that children born to women in heterosexual or same-sex partnerships through assisted fertilization are legally treated the same as those born to married women.

Judicial Precedents on Equality:
- Du Toit v Minister of Welfare and Population Development (2003): Legal endorsement for same-sex couples to adopt jointly, ensuring legal guardianship for their children.
- Bhe v Magistrate Khayelitsha (2005): The Constitutional Court deemed the primogeniture rule unconstitutional, which favored male heirs.
- Centre for Child Law v Director General: Department of Home Affairs (2022): Recognition that children from unmarried parents should be treated equally to those from married parents.

Concept Overview:
- The Constitution embodies transformative aims, promoting human dignity and equality.
- It replaces outdated race-based and sexist notions with principles prioritizing non-racialism and equality.
- This transformative application significantly impacts various legal areas including succession and socio-economic rights.

Key Provisions:
- Section 28(2) underscores that the best interests of a child are of paramount importance in all child-related matters.
- It is crucial to understand that this section is not an absolute right; it should be interpreted within a non-hierarchical rights framework where limitations are permissible.

Purpose and Impact:
- The Children’s Act enhances the protection of children's best interests beyond what is established in Section 28(2) of the Constitution.
- It introduces specific guiding factors to assess what constitutes a child’s best interest.
- Key changes initiated by the Act include:
  - Replacement of the term 'parental authority' with 'parental responsibilities and rights.'
  - Lowering the age of majority from 21 to 18 years.
  - Provision of parental rights and responsibilities to unmarried fathers under specified circumstances.

Core Provisions:
- Sets the minimum age for criminal capacity at 10 years.
- According to the Child Justice Amendment Act (2019):
  - Children under 12 years lack criminal capacity.
  - Children aged 12 to 14 years are presumed to lack criminal capacity unless proven otherwise by the state.

Importance of Customary Law:
- Customary law operates as a separate legal system that is applicable where relevant to the law of persons.

Identified Issues:
- The current legal framework requires reform in several areas:
  - Puberty laws and their implications.
  - Reevaluation of common law principles governing delictual liability of minors.
  - Addressing issues related to child marriages and establishing necessary legislative provisions to regulate marriages of minors.