Objective and subjective law
As a discipline, the law of persons forms part of South Africa's positive law, or the norms and rules which order the conduct or misconduct of the citizens. Objective law is distinguished from law in the subjective sense, which is 'a network of legal relationships and messes among legal subjects',Kruger & Skelton 12. and which deals with rights,Davel & Jordaan 2. or 'the claim that a legal subject has on a legal object'. These relationships may be divided into two broad types: # The subject-subject relationship, between the bearer of the right and other legal subjects. This comprises both a right and an obligation: 'The legal subject's right exists against all other legal subjects, and they are obliged to respect it'. # The subject-object relationship, between the right-bearer and the legal object of his or her right. Objective law, on the other hand, is often divided into public and private law. The former deals with the law as it applies to the exercise of state authority, while the latter applies to the varieties of legal relationships between persons, described above.Legal subjects and objects
The term ''person'' in the law of persons is roughly interchangeable with ''legal subject''. A legal subject is an entity capable of holding rights, duties and capacities. A legal object is an entity which the law does not thus recognise, because it cannot legally interact; it is merely something ''in respect of which'' a legal subject may hold rights, duties and capacities.Kruger & Skelton 13. There are widely agreed to be four kinds of subjective rights and four corresponding legal objects over which a legal subject exercises said rights: * Patrimonial rights: ** Real right: a legal subject exercises a real right (''Natural and juristic persons
Every human being, for the purposes of South African law, is recognised as a person, but not every legal person is a human being. The distinction is best understood with reference to the two classes of person recognised by the law: namely, natural and juristic. (Only these two have legal personality. Animals and deceased people are excluded.)Natural persons
Although in 21st-century South Africa every human enjoys non-derogable status as a legal subject, this has not always and everywhere been the case. InJuristic persons
A juristic person is a social entity, a community or an association of people which has an independent right of existence under the law.Davel & Jordaan 4. It can be 'the bearer of judicial capacities and subjective rights,’ and the accompanying legal entitlements and obligations, just like a natural person. Although it is independent of the natural persons who are its members, it acts through them. Three categories of juristic person are recognised. * Associations established in separate legislation: These may be constituted only with governmental permission, usually where the government has an extensive interest in their operation.Beginning of legal subjectivity
Legal subjectivity begins at birth,Kruger & Skelton 22. prior to which the foetus is generally regarded not as a legal person but merely as a part of the mother. It therefore (in general) has no rights or duties or capacities. Determinations as to whether a legitimate or lawful birth has occurred, and hence whether or not the ''infans'' has achieved legal subjectivity, can be especially significant for the purposes of the law of succession.Kruger & Skelton 225. The term ''birth'' is regulated by two common law requirements. * The delivery must be fully completed; there must be total separation between the body of the mother and that of the ''infans'' * The child must be or have been alive, and lived independently, after separation. Even if for a short period of time. AAt criminal proceedings at which an accused is charged with the killing of a newly-born child, such child shall be deemed to have been born alive ''if the child is proved to have breathed'', whether or not the child had an independent circulation, and it shall not be necessary to prove that such child was, at the time of its death, entirely separated from the body of its mother.For the determination of whether or not a child took breath after birth, questions such as whether or not it cried or registered heart activity, and especially the
= Protection of the interests of the unborn child
= Although in general, being without legal subjectivity, the foetus has no rights or duties or capacities, there are certain measures in South African law which provide for its protection if it is subsequently born. Aside from some statutory security and a number of common delictual principles, there is, most notably, the ''nasciturus'' fiction, which indie toepassing van die nasciturus-fiksie nie die ongeborene met enige regspersoonlikeheid beklee nie. Dit verseker slegs dat voordele wat die ongebore vrug na geboorte mag toeval in suspenso gehou word tot sy geboorte'In English, roughly speaking: No legal personality is actually granted to the foetus by deployment of the ''nasciturus'' fiction; it remains without legal subjectivity, and does not have a right (to life, for instance) that can be enforced on its behalf. The benefits accruing to it through the fiction are held 'in suspense' until it is born, at which point the fiction is no longer, so to speak, fictional.
Succession The ''nasciturus'' fiction derives its importance in South African law primarily from its operation in the law of succession. This subjects has to do with the inheritance of the heirs/beneficiaries that the deceased left behind.
Intestate succession Intestate succession covers those rules which apply if a deceased person failed to leave behind a legally valid will to determine who would inherit his assets, in which case prospective heirs may only inherit if alive at the time of ''delatio'', when the estate falls open. Were this rule left to stand on its own, and strictly applied, a conceived but unborn child would be unqualified for intestate inheritance. The ''nasciturus'' fiction, however, typically operates in just such cases. If, at the time of ''delatio'', the ''nasciturus'' has already been conceived, the fiction is applied to keep its interests in abeyance, and the division of the estate is postponed until such time as the ''nasciturus'' is born in the legal-technical sense. If the child is eventually born alive, he will share in the estate as if he had already been born at the time of the testator's death.Kruger & Skelton 26. ''Delatio'' must, however, occur ''after'' the moment of conception.
Testate succession Testate succession covers those rules which apply if the deceased left behind a legally valid will to determine who would inherit his assets. The ''nasciturus'' fiction was expressly included for the purposes of testate succession, and thus became part of statutory law, in the Wills Act:
any benefit allocated to the children of a person, or to the members of a class of persons mentioned in the will shall vest in the children of that person or those members of the class of persons who are alive at the time of the devolution of the benefit, or who have already been conceived at that time and who are later born alive.In other words, all persons are eligible for inheritance in terms of a will who are alive at the time of the devolution of its benefits, or who had been conceived before that time and were later born alive. The testator in this scenario dies prior to the birth of the heir, but after the heir's conception. The Act introduced a rebuttable presumption that the testator wished to benefit not only those children or members of a class of persons who are alive at the time of his death, but also those who have already been conceived and will later be born alive. In ''Ex Parte Boedel Steenkamp'', an important case decided prior to the addition of section 2D(1)(c) to the Wills Act, and often seen as a precursor to the Law of Succession Amendment Act, the court made clear its unwillingness to act to the prejudice of the ''nasciturus'' fiction. If the testator desired to preclude its use in the division of his estate, he had to express this intention very clearly.
Wrongful life actions The role of the ''nasciturus'' fiction in wrongful life actions may best be understood with reference to the cases of ''Stewart v Botha'' and ''Friedman v Glicksman''.
Other methods of preserving the interests of the unborn child Among the other common-law methods available in South Africa for the preservation of the interests of unborn children is their nomination in wills and trust deeds. Statutory measures for the protection of unborn children may be found in the following legislation: * Immovable Property (Removal or Modification of Restrictions) Act. * General Law Amendment Act. * Administration of Estates Act.
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Choice on Termination of Pregnancy Act Established in 1996 to repeal the Abortion and Sterilisation Act (to the extent that the latter was applicable to abortion), the Choice on Termination of Pregnancy Act stressed that 'termination of pregnancy is not a form of contraception or population control,’ and divided pregnancy into three trimesters. # During the first twelve weeks of gestation, an abortion may be provided 'on demand'—that is, at the request of the pregnant woman—and may be carried out by a medical practitioner, a registered midwife or a registered nurse with the needful training. # From the thirteenth week to the twentieth, a pregnancy may be terminated only under four conditions. After consultation with the pregnant woman, a medical practitioner must be of the view that ## continuation of the pregnancy would risk injury to the woman's mental or physical health; or ## the risk is substantial that the child would suffer a severe physical or mental abnormality; or ## the pregnancy resulted from rape or
Constitutional issues The courts consistently ruled and held, even before the enactment of the
End of legal subjectivity
Legal subjectivity is terminated at death, such that the deceased, like the unborn and the unconceived, have no legal rights or duties, and—obviously—no capacities. A dead body is thus only a legal object or 'thing', but there are, in the interests of public health and out of respect for the dead and the feelings and sensibilities of relatives, certain protections in South African law. The handling and disposal of human detritus is regulated, for example, and necrophilia is a crime; likewise the violation of a grave.= Legal requirements for death
= There is as yet no general legal definition of death in South African law. Where previously the test for death was met by the irreversible absence of natural= Registration of death
= The registration of deaths in South Africa is governed by the Births and Deaths Registration Act. All deaths must be reported, by anyone present at or aware of them, or directing their funerals, to the Director-General of Home Affairs, or to a person duly authorised by the Director-General, irrespective of whether the death was due to natural or unnatural causes. The Director-General will then register the death and issue an official death certificate. Where unnatural causes are suspected, the death must additionally be reported, either by the Director-General or by the relevant medical practitioner, to the police.= Presumption of death
= In South Africa when a person disappears and there is no evidence either way as to whether or not he is still alive. There is no corpse in respect of which a doctor can issue a death certificate, and no-one who can testify that the person is actually dead. In these circumstances a presumption of death may be ordered, in respect either of common law or of statutory provisions. Anyone with an interest in the death of a missing person may apply in this regard to whichever High Court has jurisdiction over the area in which the missing person lived at the time of disappearance, and must convince the court, on a balance of probabilities, that the missing person is dead. Deaths are not presumed lightly, in other words; the court must be confident that the missing person is more likely dead than alive.A court cannot declare someone dead but presume that the person is more likely dead than alive.The circumstances under which the person left under,are also taken into consideration and also the age of the person is taken into consideration.Common law Because Roman-Dutch law is so unclear on the period of absence required for a presumption of death, South Africa initially followed the English rule in terms of which the missing person must have been absent for an uninterrupted period of seven years. This was later replaced, in '' Re Beaglehole'', with the rule that no fixed period of absence is required. Each case is judged on its own merits, and a variety of factors is now considered. Length of absence is one, and often it is decisive, but the court will also take into account the circumstances in which the person disappeared, his age and his health. '' Ex parte Pieters'' cited the general rule, established in ''In re Cuthbert'', that prolonged absence is not enough in itself persuade the court to make a presumption of death, especially where there is absolutely no evidence otherwise to suggest it. There are, of course, exceptions to the rule, but for the most part they entail some substitute for the presumption. In ''Ex parte Pieters'', the court issued a rule ''nisi'', declining to presume Pieters death, and authorised the Master to distribute his estate (only around R6,000, which was a factor in the court's considerations) among his children.
Statutory procedure In addition to the common law on presumption of death, there is the Inquests Act, which provides for circumstances in which there is a suspicion of unnatural causes. If the Magistrate considers someone's death to have been due to unnatural causes, he must hold an inquest. A record of the findings, if they establish the deceased's identity and date of death, must be submitted to the relevant High Court for review. If the High Court confirms the findings, the effect is the same as for a presumption-of-death order.
Effect It is worth stressing that the effect of the court's order is not to declare that a person is dead but only to make a rebuttable presumption to that effect. Should it transpire that the person is actually alive, a simple application to the relevant court (which may be brought by any interested party, or by the living person himself) will usually suffice to have its order set aside. The first consequence of an order of presumption of death is that the estate of the missing person is divided, as if he were dead, among his heirs.Kruger & Skelton 51. It is not always required for this, however, that a court be willing to grant a presumption of death; the court also has the option of appointing a '' curator bonis'' to administer the missing person's affairs without granting a presumption-of-death order, the precedent for which was established in '' In re Kannemeyer'', where the heirs were required to give security for the inherited estate in the event that the missing person reappeared. A second consequence is that the missing person's life policies are paid out to the beneficiaries, on the condition that '' cautio de restituendo'' be provided. A third consequence is on the missing person's marriage, which is not automatically dissolved by a presumption-of-death order. The remarriage of the surviving spouse is regulated by the Dissolution of Marriages on Presumption of Death Act: Should she wish to remarry or enter a new civil union, she must bring an application for a court order dissolving the marriage or civil union of the missing person. The dissolution will take effect from a date determined by the court, and the application may be brought alongside an application for presumption of death, or any time after the presumption is made. The court will not grant the application ''mero motu''—but only on application by the spouse or civil partner of the missing person. The necessary implication of a successful application for the dissolution of a marriage or civil union is that it will remain dissolved even if the missing person reappears.Van der Vyver & Joubert 425.
See also
*Bibliography
Books
* C.J. Davel & R.A. Jordaan. ''Law of Persons'', 4th edn. Cape Town: Juta, 2005. * Herman R. Hahlo & Ellison Kahn. ''The South African Legal System and its Background''. Cape Town: Juta, 1968. * Jacqueline Heaton. ''The South African Law of Persons'', 3rd edn. Durban: Butterworths, 2008. ** current: Jacqueline Heaton & D.S.P. Cronjé. ''The South African Law of Persons'', 5th edn. Durban: LexisNexis, 2017. * Hanneretha Kruger & Ann Skelton, eds. ''The Law of Persons in South Africa''. Cape Town: Oxford University Press Southern Africa, 2010. * C.R. Snyman. ''Criminal Law'', 5th edn. Durban: Butterworths, 2008. * J.D. van der Vyver & David Johannes Joubert. ''Persone- en familiereg'', 3rd edn. Cape Town: Juta, 1991. * Frederik Jacobus van Zyl & J.D. van der Vyver. ''Inleiding tot die regswetenskap'', 2nd edn. Durban: Butterworths, 1982.Cases
* '' Chisolm v East Rand Proprietary Mines Ltd'' 1909 TH 297. * ''Christian Lawyers Association of South Africa v Minister of Health'' 1998 (11) BCLR 1434 (T). * ''Christian League of Southern Africa v Rall'' 1981 (2) SA 821 (O). * ''Ex parte Boedel Steenkamp'' 1962 (3) SA 954 (O). * ''Ex parte Engelbrecht'' 1956 (1) SA 408 (E). * ''Ex parte Maclean'' 1968 (2) SA 644 (C). * ''Ex Parte Pieters'' 1993 (3) SA 379 (D). * ''Friedman v Glicksman'' 1996 (1) SA 1134 (W). * ''In re Booysen'' 1880 Foord 187. * ''In re Cuthbert'' 1932 NLR 615. * ''In re Kannemeyer: Ex parte Kannemeyer'' (1899) 16 SC 407. * ''J v Director-General, Department of Home Affairs'' 2003 (5) BCLR 463 (CC). * '' Pinchin and Another v Santam Insurance Co Ltd'' 1963 (2) SA 254 (W). * ''Re Beaglehole'' 1908 TS 49. * '' Road Accident Fund v Mtati'' 2005 (6) SA 215 (SCA). * ''S v Mashumpa and Another'' 2008 (1) SACR 126 (E). * ''S v Williams'' 1986 (4) SA 1188. * ''Statutes
* Abortion and Sterilization Act 2 of 1975. * Administration of Estates Act 66 of 1965. * Banks Act 94 of 1990. * Births and Deaths Registration Act 51 of 1992. * Broadcasting Act 4 of 1999. * Children's Act 38 of 2005. * Children's Status Act 82 of 1987. * Choice on Termination of Pregnancy Act 92 of 1996. * Close Corporations Act 69 of 1984. * Companies Act 61 of 1973. * Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. * Criminal Procedure Act 51 of 1977. * Dissolution of Marriages on Presumption of Death Act 23 of 1979. * Electricity Act 41 of 1987. * General Law Amendment Act 62 of 1955. * Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965. * Inquests Act 58 of 1959. * Law of Succession Amendment Act 43 of 1992. * Mutual Banks Act 124 of 1993. * National Health Act 61 of 2003. * Wills Act 7 of 1953.Notes
{{DEFAULTSORT:Law of Persons in South Africa Law of South Africa