Law of Persons 2019

8. THE END OF LEGAL PERSONALITY

The significance of the end of legal personality

Legal requirements for death

Presumptions of death

Common law procedure

Ex parte Govender 1993 (3) SA 721 (D)
Statutory law procedure
The Dissolution of Marriages on Presumption of Death Act 23 of 1979

8.1 The significance of the end of legal personality

A person’s legal personality is terminated by DEATH

This means the person does not have rights nor obligations

Death is a juristic fact that has concequences

e.g. a marriage can be terminated by divorce or death

HOWEVER, the law protects the deceades body and regulates its disposal, not because of the
deceaseds right but for publics interest e.g. public health, respects for the feelings and sensibilities
of the deceased relatives and respect for the dead.

8.2 Legal Requirements for death

 Rely on medical evidence to prove that someone is legally dead
 As well as evidence of the moment of death

8.3 Presumption of death

Statute
Common Law
In certain cases the state
Application broad to the takes the initiative when
court by an interested party unnatural death is
suspected
 Law of Persons 2019

8.3.1 Common Law Procedure

 A missing person cannot be declared dead but the state can make the presumption of
death
 A death certificate cannot be issued unless a body is found
 Any interested party may approach the court whose area of jurisdiction the missing
person domiciled to grant permission for presumption of death

NB: Only the High Court can be approached for such matters

i. The case will be broght as an applicaition

ii. The applicant must prove on a balance of probabilities that the person is dead
iii. The person must bring various factors to the Courts Attention which include
a. The age of the missing person
b. The length of the persons absence from home
c. The missing persons trade or occupation
d. Whether the person was involved in a trade that would ordinarily put his
life in danger
iv. The mere fact that the person has not been heard of for a number of days is
enough for the court to issue a presumption of death
v. Upon hearing the matter the court will the rule risi for the person to be published
in the newspaper or the gazette

8.3.2 Statutory Procedure

 Inquest Act 58 of 1959

S 16(1) The judicial officer must be certain beyond reasonable doubt that the personis
dead before the finding that the person is presumably dead is made

S 5(2) If a magistrate is of the view that the death was due to unnatural causes , he
must take steps to ensure an inquest as to:
-the circumstances
-and the cause of death

-If a body if available the district surgeon will examine it to ascertain the cause of death.

-If the is no body or it alleged to have been destroyed and evidence proves beyond reasonable
doubt that the person is dead , the judicial officer must record his finding with regards to:

1. The deceased’s identity

2. The cause or the likely cause of death

3. The date of death

 Law of Persons 2019

4. Whether the death was caused by an act or omission in which prima facie amounted
to an offence by anyone

 Aviation Act 74 of 1962

This Act provides for the second alternative to the Common Law Procedure.

Section 2 (1): If an aircraft is involved in an accident

- In the Republic
- Above the republic
- Above its territorial waters
- If an SA craft is involved in an accident anywhere

The Minister of Transport may appoint a board of enquiry to investigate the accident.

 If there was any loss of life in any such accident, the same procedure as described in the
Statutory Inquests Act is followed.
 As with the Inquest’s Act, the Aviation Act does also not preclude the Common Law
Procedure.
 As with the Inquests Act it must be proved BEYOND A REASONABLE DOUBT that
the person is dead before an order presuming his death will be issued.

8.4 The Effects of the Presumption of Death

-If the Court grants the order clearly it does not mean that the person is dead. There is a
REBUTTABLE presumption that the person is dead.

- This means that the presumption of death order can be set aside if on further evidence it
becomes clear that the person is alive.

-Any interested person or the missing person himself can bring the application to have the order
set aside.

 Ex parte Govender 1993 (3) SA 721 (D)

Disappearance and absence alone are insufficient to warrant a presumption of death.