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Law of Persons

The law of persons is that part of private law which

1. determines which entities are legal subjects,
2. when legal personality begins and ends,
3. what legal status involves (different classes of legal subjects)
4. and what effect various factors have on a person’s legal status (legal status of each class).

In respect of rights, we are concerned with a dual relationship:

i. Subject-subject relationship – a right and corresponding obligations
ii. Subject-object relationship – bearer of the right and the object of his right.

Legal subjects and legal objects

In the field of law, there is a difference between ‘legal subjects’ (persona iuris) and ‘legal
objects’. Legal subjects are people recognized by law as having rights, duties and capacities
bestowed upon them. The law then grants legal personality on such subjects. Whereas legal
objects are entities that have economic value and which the law has not bestowed the
capacity to have rights, duties and capacities. Legal objects can therefore not partake in legal
and commercial transactions.

Categorizing Legal Subject

Legal subject can be divided into two categories:
1. Natural persons (persona naturalia)
2. Juristic persons (juristic persona).
Legal subject is a general term used to refer to all entities that are recognized by law,
including both juristic and natural persons. A natural person is a human being discernible
through the intelligence and subject to physical laws, regardless of a person’s age, mental
capacity, or gender; they are recognized as legal subjects. A juristic person, sometimes
known as a legal person, is a legal entity through which the law allows a group of natural
persons to operate in ways resembling a single composite individual for certain purposes. A
juristic person enjoys a separate existence independent from that of its members or the
natural persons that created it.

Categorizing Legal Objects

There are perhaps five to six categories of legal objects.
1. Corporal things
These are separate, tangible items which are susceptible to human control and which are
of value to people. Eg: Motor vehicle
2. Performance
These are human acts by which something is given, done or not done. The right to
performance is a personal right or a claim. Eg: A has obligation to deliver, B has
obligation to pay.

3. Personality property
A person’s right to his good name (reputation), honor, personal integrity are examples of
personality rights.

4. Immaterial property (intellectual property)

An artist’s right to his painting (copyright). An author’s right to his books (copy right)
An inventor’s right to his invention (patent right). These are products of the human

The Beginning and End of Legal Personality

Legal personality is conferred on legal subjects only. A natural person’s legal personality
commences at birth. Prior to birth the fetus is not a legal subject. It simply forms part of the
mother’s viscera. There are certain requirements to acquire legal personality:

i. Birth must take place; it is a necessity to have a separation between the mother and
the child. However, there is no requirement that states the umbilical cord should be
ii. The child must be alive after separation. The child is obliged to breathe in order to
show signs of being alive. Hydrostatic test.
iii. The third requirement is open to debate as to whether it is necessary. Certain authors
proclaim that the child should also be ‘viable’ before they can acquire legal
personality. This means that the child must of reached a certain developmental stage
(an existence separate from its mother) before they can attain legal personality.
iv. Furthermore, a registration of birth should proceed.

Registration of Birth
The Director General of Home Affairs must be notified of the birth of every child who was
born alive. The notification must be given within 30 days of the child’s birth.

The Interest of the Unborn Child

The law protects the potential interests of the nasciturus by employing the fiction that the
fetus is regarded as having been born at the time of conception whenever it is to her
advantage. The Latin phrase “nasciturus pro iam nato habetur, quotiens de commodo eius
agitur” refers to law that allows a fetus to inherit if it is to benefit her.
Nasciturus Rule and Nasciturus Fiction
The phrase nasciturus rule and nasciturus fiction are sometimes both used as synonyms,
however they have different meanings. The nasciturus rule is used to refer to circumstances
which would occur and be to the benefit of the fetus if she had been born. This means that the
fetus is regarded as a legal subject from the date of her conception. Therefore legal
personality sometimes commences at birth or at conception. The nasciturus fiction refers to a
fetus that is regarded as having been born at the time of conception if the issue at hand is to
her advantage. The rights of the child who will be born is given protection. South Africa
follows the nasciturus fiction, henceforth it can be said that in Namibia we follow the same
application. This fiction has certain requirements:

i. An advantage/benefit that accrues to the fetus if he/she was alive

ii. The child must have been conceived
iii. Subsequent birth (the child must have been born alive)

*Nasciturus Rule: where there is a benefit for the child: at the time of conception, the child
becomes a legal subject.
*Nasciturus Fiction: Whatever benefit will have to be on hold until the child is born alive.

CASE: Ex Parte Boedel Steenkamp

In this case, a will provided that the residue of the testator’s estate was to devolve in equal
shares to his daughter M and her children of her first generation at the time of his death. M
had two children, D and G, and was pregnant with a third child (P), who was born 7 months
after the death of the testator. The Court regarded P as alive at the date of the testator’s death
and was entitled to share the inheritance. In this case, in can be clearly seen that the
nasciturus fiction was applied here for the benefit of the child born.

CASE: Ex Parte Administrators Estate Asmall

In this specific case, the testator made a will in 1936 which he bequest a monthly fee of £8
for his 3 sons: E, Y and H, and £3 for each of his 4 daughters: Ay, Am, K and J. The 7
children were all alive at the time. In 1942 when he executed a codicil, K had died but 3
more children were born: Ha, S and R. The testator simply said that £8 were to be paid to the
sons per month, and £4 to his daughter. Another daughter F was born. In 1944 the testator
died, and another son I was born after his death. The question the court was faced with was
whether or not F and I were entitled to inherit. In this case the Court applied the nasciturus
fiction and held that they were entitled to inherit, as it was to their benefit and was the
intention of the testator.

CASE: Pinchin v Santam Insurance Co. Ltd

In this case the Plaintiffs sued Santam as agent of what was the predecessor of the present
RAF for damages, where the pregnant mother was involved in a motor vehicle accident, and
her child was subsequently born and suffered from cerebral palsy. The Court in this case held
on the facts that the Plaintiffs had not succeeded in establishing that the child’s cerebral palsy
was caused by the injuries which her mother had sustained in the accident. However, the
Court in this case did conclude that a child has an action for damages in respect of injuries
sustained while a fetus. The Court applied the “nasciturus fiction”, derived from Roman law.

CASE: Road Accident Fund v Mtati

In this case, the Court had to deal with whether or not a child in utero which suffers an
injury and, after birth, suffers from consequence of that injury, has a right to sue for damages.
The Court held that it would be intolerable if our law did not grant an action to a child after
birth for damages in respect of pre-natal injuries suffered by that child. In this case, the Court
further cited the case Montreal Tramways Co v Leveille in which the Judge said that “… it is
but natural justice that a child, if born alive and viable, should be allowed to maintain an
action in the courts for injuries wrongfully committed upon its person while in the womb of
its mother". The Court held that the insured driver clearly owed a duty of care to Zukhanye
even though she was in utero at the time.

Effect of Presumption of Death

If a court pronounces a presumption of death this does not mean that the person is dead.
There is only a rebuttable presumption that she is dead. As the presumption is rebuttable, the
court which pronounced the presumption can set aside the original order if, on the basis of
further evidence, it becomes clear that the missing person is in face not dead.

The person’s estate may, in principle, be dealt with as if she were dead and her estate can
therefore be administered and divided among her heirs. But the heirs must furnish security
for the restoration of the property, or its value, should the missing person return.

A presumption of death automatically dissolves the person’s marriage. In other words, the
personal and patrimonial consequences of the termination of the marriage are exactly the
same as if the marriage were dissolved by the death of one of the spouses.

When you die, you are no longer a legal subject. The law protects 2 interests of a dead
person: 1. Respect for the dead
2. Disposal of the body (for public health)

Under private law (law of persons) it is important that proof of death is submitted.
1. To enable the liquidation and distribution of the deceased’s estate/assets to the heirs.
2. For the dissolution of the institution of marriage. (to enable the spouse to move on)
*A death certificate is necessary to prove that a person is dead.

Under what circumstances you would be presumed dead?

For the purposes of the law of succession, there are instances where you may apply to the
High Court for an application for an order presuming that a certain person is dead. For such
an order to be granted, the Court will look at certain factors.
1. The period of absence: in our law, there is no defined period
2. The age of the person when he/she disappeared.
3. The circumstances of his disappearance.
4. Whether that person was exposed to any calamity (eg: sleep walk, epileptic)
(whether he suffered from anything that disturbed his calamity)
5. Has the person disappeared in a period of unrest (war, disaster, etc)
6. The occupation of the person (hazardous/safe)

When the person disappears in times of tranquility (peace), the onus on you will be higher as
to convince the court that the person is dead. Even if the person has disappeared for a very
long time. In order for you to succeed you have to convince the court on a
balance/preponderance of probabilities.

CASE: Beaglehole, Re 1908 TS 49

B is a miller living in Somersethire in England. He had not been heard of by his relatives for
a period of 15 years. He had not been exposed to any peril and did not follow a dangerous
career. If he is still alive, he would have been 46 years old at the time of application. The
court found that the evidence brought before it was not sufficient to presume his death.

CASE: Ex Parte Graham 1963 (4) SA 145

In terms of her will, in the event that she died, her son would inherit her estate. But if her son
predeceased her, then her whole estate would devolve on her mother. The testatrix and her
son were both killed on an air disaster. The executrix awarded the whole to the testatrix’s
mother, but the registrar of deeds needed an order from court stating that the son died before
or simultaneously. The order was granted, stating that the testatrix and her son died

The word ‘status’ is derived from the Latin verb stare which means ‘to stand’. This concern
with a person’s “standing” in the law. This standing is determined by all those attributes a
person has, or the condition in which he finds himself to which the law attaches
consequences. The most significant attributes which determine a person’s staturs are:
Domicile, extra-marital birth, youth, physical illness or incapacity, mental illness or
incapacity, intoxication, prodigality and insolvency.

Legal Capacity
Legal capacity is the capacity to have rights and duties. All human beings have this capacity.
Distinction between the capacity to have rights and duties, and the particular rights and duties
that a specific person has at a specific time. Eg: Children below a certain age cannot marry.
They have limited legal capacity. Their status may differ from that of a person who may

Capacity to Act
Capacity to act refers to the capacity to perform valid juristic acts. A juristic act attaches at
least some of the consequences. It is clear that entering into legal transaction can have
implications, therefore the person must have achieved a certain level of intellectual
development before the law confers capacity to act on him. People under the age of 21 are
considered not to have the necessary maturity of judgment and must therefore be protected
by the law.

Capacity to Litigate
Capacity to litigate is the capacity to appear in court as a party to a lawsuit.

Capacity to be held accountable

Capacity to be held accountable for crimes and delicts. This capacity is greatly influenced by
a person’s age, mental conditions, intent (dolus), negligence (culpa). The person must be doli
capax or culpa capax. If some one is too young, then she cannot be held accountable for the
acts she has committed.

Domicile is the place where a person is legally deemed to be constantly present for the
purpose of exercising her rights and fulfilling her obligations, even in the event of her factual
absence. To acquire domicile in the legal sense the person must have the intention of settling
at the particular place for an indefinite period. Domicile and citizenship coincide.

Importance of domicile
Lex domicilii is significant. It determines whether a child is legitimate or extra-marital. Lex
domicilii is importance for the law of succession, the law of intestate succession, the capacity
to inherit, the system of law according to which a will is to be interpreted, the matrimonial
property regime of a marriage, the law of procedure.
Why is it important to know where the person is domiciled?
1. it determines the jurisdiction of court
2. Your right to enter into a contract

*Every person must have a domicile at all times. The Domicile Act provides that no one
loses her domicile until she has acquired another domicile.

Different Types of Domicile

1. Domicile of Origin
2. Domicile of Choice
3. Domicile by Operation of Law

 Domicile of Origin (domicilium originis)

This is the domicile the law assigns to her at birth. The Domicile Act provides that no one
loses her domicile until she ahs acquired another domicile, whether by choice or operation of

CASE: Grindal v Grindal 1997 (4) SA 137

A domicile of origin does not revive automatically if that person intends to abandon his or
her previous domicle. The person retains the domicle he or she ahs at that stage until he or
she acquires a new one, whether by choice or operation of law.

 Domicile of Choice
A domicile of choice is that domicile which someone who has capacity to act has chosen for
herself by exercising of her own free will. It is the most important kind of domicile. A person
over the age of 18 years (or having the status of a major) and having a mental capacity to
make rational choices are part of the requirements to attain a domicile of choice. However,
there are two more requirements:
1. The person must actually settle at the particular place (factum)
2. The person must have the intention of residing permanently at that place (animus)

These two requirements must at some time exist simultaneously.

Factum requirement
This is viewed objectively. No specific period of physical residence is required but the person
must not simply be visiting the place. The courts sometimes take into consideration the
duration of the physical presence to infer from whether the person had the intention of
remaining at that specific place. You must actually settle at the place where you choose to
CASE: Cook v Cook 1939 CPD 314
In order to acquire a domicile of choice at a particular place ther person must actually reside
there, and have the animus manendi, that is the intention to remain at that place. It should be
noted that although these requirements must at some stage exist simultaneously, they need
not come into being simultaneously.

Animus requirement
This is a subjective test. In other words, the intention of the particular person is determined;
the intention not to leave the particular place, and the intention of residing permanently at the
particular place. *the problem with this requirement is ‘intention’.

CASE: Johnson v Johnson 1930 (1) AD 391

The intention necessary for acquiring a domicile of choice exclude all contemplation of any
event in which the residence would cease.

CASE: Eilon v Eilon 1965 (1) SA 703

There should be fixed and deliberate intention to abandon his previous domicile, and to settle
permanently in the country of choice. Strict interpretation

 Domicile by operation of law

Anyone who does not have the capacity to acquire a domicile of choice at the place with
which she is most closely connected. The law assigns a domicile by operation of law for as
long as their minority or mental incapacity lasts, and that domicile is the place with which the
particular person is most closely connected. This type of domicile is called a domicile by
operation of law or an assigned domicile.
Child – a person under the age of 18