Study Unit 1 2

STUDY UNIT 1: AN INTRODUCTION TO THE LAW OF PERSONS

1. INTRODUCTION

• 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

2. LEGISLATION & THE LAW OF PERSONS

• 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.

3. FURTHER APPLICATIONS OF THE CONSTITUTION IN LAW OF PERSONS

• 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.

4. TRANSFORMATIVE CONSTITUTIONALISM

• 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  • It replaces outdated race-based and sexist notions with principles prioritizing non-racialism and equality.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.

5. SECTION 28(2) OF THE CONSTITUTION

• 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.

6. THE CHILDREN’S ACT 38 OF 2005

• 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.

7. THE CHILD JUSTICE ACT 75 OF 2008

• 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.

8. APPLICATION OF CUSTOMARY LAW IN THE LAW OF PERSONS

• Importance of Customary Law:

  • Customary law operates as a separate legal system that is applicable where relevant to the law of persons.

9. AREAS IN NEED OF REFORM

• 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.