LAW OF PERSONS

CHAPTER 1
 Words are the tools of the law.
 In law, words and concepts have precise meanings.
 In law we study the definitions of words and concepts.

What is a person?

1. Someone or something that can have rights and duties

2. Natural persons or artificial person
3. Legal subject –anyone who can have legal rights – the same as legal person.
Legal subjects have rights over legal objects

What are right and duties?

Rights = legal entitlement, enforceable by law
Duties (obligations) = legal duty, something you must do (performance)

Definition
Part of private law that determines which entities are legal subjects, when legal
personality begins and ends. What legal status involves and what effects various
factors have on legal status.

What is a “person” and why does it matter?

 Natural persons
 Artificial persons
 Legal subject rather than “person”?
 Legal personality
 Legal subjectivity
 Legal rights and duties
Categories Of Legal Subjects
1. The natural person
- Human beings ( all )

2. The juristic person

- Certain associations of natural persons
- 1. Associations incorporated into a general enabling act, eg company
- 2. Associations created and recognized separate legislation, eg SABC
- 3. Association complying with common law requirements = continued
existance + rights and duties + not for gain

Rights, duties and legal objects

- The law determines the content and limit of every right.
- All rights give rise to corresponding duties.
- The kind of duty or obligation depends on the right that gives rise to it.
- Real right = duty to not interfere with right of ownership.

Legal subject & Legal Objects

Legal subject
- Any entity that has
1. Rights
2. Duties
3. Capacities
4. Recognised as such by the law of SA
5. All equal legal personality
Legal objects
- Any object that has
1. Economic value
2. No rights, duties, capacities
3. Cannot participate in legal and commercial traffic

Types of Legal objects

1. Corporeal things
- Separate
- Tangible
- Real rights

2. Performance
- Human act
- Something is given done or not done
- Personal rights
 3. Personality property
- Aspects of a persons personality
- Ex, dignity
- Personality rights

4. Immaterial property
- Product of the human intellect (the idea contained in product)
- Immaterial property rights

Constitutional Rights
Human rights impact us individuals.
Public law rights.
Constitution is supreme.
No rule of law should violate the constitution.

Capacity
1. Ability to have legal rights/ duties
2. Ability to act in law
3. Passive legal capacity =the ability to have rights and duties – all natural
persons have legal capacity.e.g. babies
4. Capacity to perform juristic acts = capacity to change legal position.e.g.
entering into contracts
5. Capacity to be held accountable ( minors cannot be held)
6. Ability to be liable.
7. Capacity to litigate – ability to go to court and sue.

 Passive legal capacity

- The capacity to merely have legal rights and duties.
 Capacity to perform juristic acts
- The capacity to actively change his or her legal position by e.g. doing
things to acquire legal rights or incur legal obligations.
 Capacity to be held accountable for wrongdoing ( delicts and crimes )
- The capacity to be held accountable for his or her wrongdoings.
 Capacity to litigate
- The capacity to be a party to a lawsuit, either as a plaintiff (person who
brings the case) or defendant (person against whom the case is brought).
Status
- Your standing in the eyes of the law.
- Your status determine your capacities
- NB FACTORS / EXAMPLES OF STATUS: marriage, age( minority) ,
insolvency, domicile.

Liability
1. Criminal liability
- Criminal liability to the state = assault , murder, rape
2. Civil liability
- Civil liability to another legal subject = medical costs, loss of income
- Contractual = liable to contract / breach
- Delictual = wrongful, harmful act , damage
- Unjustified enrichment = wealth is increased for no reason

Remedies, defences, doctrines

1. Rei vindicatio – roman law
2. Condictio- back cash
3. Exceptio non adimpleti contractus-
4. Aquilian action
5. Action for pain and suffering
6. Doctrine of estoppel

1) Rei vindicatio:
Property-based remedy
Allows the owner of a thing to recover it from anyone who is in possession of
it
2) Condictio:
Used to recover money when one person enriched at the expense of another
3) Exceptio non adimpleti contractus
Defence available where parties owe reciprocal obligations
If A sues for performance but has failed to perform, B can raise this defence
to withhold his performance
4) Aquilian action:
Delictual ( wrongful harmful act) remedy
Used to claim damages for patrimonial loss ( financial damage)
5) Action for pain and suffering
Delictual remedy ( pain to body and personality )
For non-patrimonial loss caused by physical injury
E.g. pain, suffering, disfigurement
6) Doctrine of Estoppel
Where a person has lied to you, they may not rely on the truth. ( difficult to
use the lie )
Where A has lied
And B has relied on that lie to his disadvantage
A will be prevented (estopped) from relying on the truth in his defence
 The interests of the unborn
NASCITURUS

- Legal personality begins at birth

- Birth must be completed
- Baby must be alive after birth

Nasciturus Fiction

- Creates a fiction = born at conception if benefits to advantage

- Rights kept in abeyance until birth
- Alive = gets benefit
- Dead = as if never conceived

- Situation arises = would have benefitted if already born

- Law protects potential interests of nasciturus

- Conceived, unborn fetus = NOT a legal subject but in time will become legal
subject

Requirements
1. Conceived at time = benefit / advantage accrued
2. Child must be born alive

Only applies

1. Not in termination of pregnancy

2. Not in pre natal injury
3. Not in loss of support
4. Not in guardianship
5. Not in maintenance
6. Not in sterilization
7. But in succession

Succession
5. Testate
- Will dictates = testators intent
6. Intestate
- No will – rules
- Must be alive at time of persons dealth = inherit
- Protects unborn
CHAPTER 2

Legal Personality
- Legal person have legal personality have rights, duties and capacities

1. Natural persons
2. Juristic persons

- When bestowed with legal personality, an entity requires status.

- Status determine legal capacity.

- Legal subjects can have different kinds of rights and duties, depending on the
kinds of legal objects to which the rights and duties relate.

Birth & Natural persons

Requirements
1. Birth must be fully completed
2. Child must live before separation ( even only few seconds )
3. The umbilical cord does not have to be cut
4. The child must have lived after its death
5. Did the child draw breath
- Hydrostatic test

The IRAC Method

1. Identify the legal question

- What is the problem you have to solve / question you are asked to answer?
Hint: Often the question in the test / exam already contains this information.

2. Recite the law applicable

- Explain all the legal theory around the problem / question you identified in
your first step. At this stage you do NOT refer to the facts provided in the test
or exam paper.

3. Apply the law to the set of facts

- Now you apply the theory you explained to the facts in the exam paper, e.g.
identifying whether the requirements for an engagement have been met, and
if not – which one and how
 4. Conclusion
- You are now ready to come to a conclusion regarding the problem / question
in you first step above. E.g. “No this is not a valid engagement, because…”

Proof of Paternity
- Proof of biological parents of child

1. Maternity
- Not problematic legally ( who is the mother )
- Surrogacy = medico-legal challenges

2. Paternity
- The state of beings someone’s father
- When married woman gives birth to a child, husband is presumed to be child’s
father.

Rebuttable presumption
1. Proving impotence
2. Sterility
3. Absence of sexual intercourse of portable period of conception

Types of Presumptions
1. Rebuttable
- Husband is the father
- Prove impotence
- Sterility
- Absence of sexual intercourse over probable period of conception

2. Irrebuttable
- Can prove with evidence
- Cant prove contrary

Consequences of Legal Personality

Married Parents
1. If parents are married , either parent can give notice to department of home
affairs
2. The child can get the surname of the father or the mother or a double barrel
surname
Unmarried Parents
1. The mother has an obligation to give notice of birth
2. Takes surname of the mother.
3. Can take surname of father with consent from father

Child from Rape

1. Follows the normal rules of naming
2. Possibly best interest of child should be used.

Births and Deaths Registration Act 51 of 1992 – Legislation Law

Child Care Act

Minority

Effect of age on status

- minority factors influence status which impacts your capacities
1. 0-7 years = infant
2. 7-18 years = minor
3. 18 years older = majority
Under 18 Years
- Law sees you as not fully developed yet = limited capacity

1. Passive legal capacity

2. Capacity to perform a juristic acts
3. Capacity to be held accountable
4. Capacity to litigate

1. Passive legal capacity

- Capacity merely to have legal rights and duties

2. Capacity to perform juristic acts

- Understand the nature and consequences of your
- actions.
• Entering into contracts
• Acquiring and alienating property
• Getting married
• Consenting to medical treatment
• Holding offices and other positions
• Making a will
• Specific juristic acts governed by statute
 3. Capacity to be held accountable for wrongdoing
- Crimes and delicts

4. Capacity to litigate
- Capacity to be party to a lawsuit

Minority and Contractual capacity : The unassisted minor

Infants: ( 0 – 7 )
VOID and of no legal effect. No contract. Enters a contract = void
Parties must be restored to the same position before purported contract. =
restitution
Can infants acquire contractual rights and duties? YES – if guardian concludes
contract on their behalf.

Minors (7-18):
- Limited capacity to contract. Conclude contracts WITH ASSISTANCE
- Can enter with assistance of a guardian
Can minors conclude contracts without assistance if the contract confers RIGHTS
and imposes NO duties?
- Contracts of donation
- Contracts releasing minor from debt
- Contract in name of minor ( not guardian)
As long as NO RECIPROCAL OBLIGATIONS.
- If you marry under 17 you become a major automatically.
- Minor is liable on a contract, not guardian.

A minor only incurs contractual liability if assisted by their guardian but if the
guardian assists then minor is fully liable.

Guardians Assistance
- Guardian will be deemed (i.e. as if) to have “assisted” a minor if they have
given ‘informed consent’ to a contract .
- Must know the material (important essential) terms of the contract and the
surrounding circumstances.
- INFORMED CONSENT (no specific rules re WHEN assistance is given, or
FORM)
- Must know the material term of contract. Ratification = consent afterwards
- Ways in which assistance can be given?
Consequences of contract entered into without assistance

 Does the contract place obligations (duties) on the minor?

 If so, the minor needs the assistance of the guardian to contract.
 Voet (16th century Dutch writer) states: “contract will go limping if authority is
lacking”.
 Boberg (Academic writer) calls it the “limping contract”.

Minor
- Limited contractual capacity;
- NOT BOUND =
- No contractual obligations)
Adult
- Other party BOUND =
- Full contractual capacity

 Minor has a natural obligation under the contract. This means:

 1. Obligation not enforceable against the minor.
 2. The minor cannot be sued for performance.
 But can rather be ratified
What does it mean if the minor can ‘resile with impunity’.

1. Minor can withdraw from the contract, without fearing the consequences.
2. Minor can choose to REPUDIATE (i.e. to cancel or reject).
3. Minor party cannot do anything about it!

Can the minor FORCE the major to perform while the minor refuses to perform?
1. The minor must FIRST make good on his side of the agreement.
2. Edelstein case: For the minor to enforce performance from the major party,
the minor will need the GUARDIAN to assist, or the minor to RATIFY later.

Basic rule: Minor wants to enforce an contract, if its unassisted

If minor wishes to enforce performance by other party, she must:
1. Fulfil her own corresponding obligations.
2. Major cannot enforce performance from the minor.
3. If major sues minor for performance, minor can RAISE minority as a defence.
4. Would be void
5. Must get ratification from guardian = resurrect contract
6. Minor would need to perform, then they can claim performance
7. If the minor wants the contract.
8. Reverse is not true, major can never sue minor for unassisted contract for
performance.
What if minor has already performed?
- Reclaim performance
- Condicto
- Rei vindicato
What if the major party has already performed, and minor no longer wants to
perform?
- Minor repudiates contract
- Major party cannot rely on CONTRACT to claim anything back or enforce the
contract.
- Major party can use UNJUSTIFIED ENRICHMENT
- UNJUSTIFIED ENRICHMENT = WEAKER THAN CONTRACTUAL REMEDY

Basic rule: UNDUE ENRICHMENT

1. Plaintiff can only sue for amount by which he/she is in fact impoverished
2. He can only sue for amount by which the minor defendant remains enriched –
on the day he institutes action.
How can minor parties reduce the extent of their remaining enrichment?

1. Minor loses or destroys the thing.

2. Minor may sell the thing for less than its actual value.
3. Minor may sell the thing and spend the proceeds on luxuries that they would
ordinarily buy.

Claim unjustified enrichment

1. Smaller amount of enrichment ( minor )
2. Smaller amount of impoverishment ( major )
3. Time of instituting action ( litis contestation )
- Look at actual value of product bought and not at contract price
Risk
- Broken , destroyed , gone = no claim
- Patrimonial advantage at expense of another without ground to justify

Obligations
Natural Obligations
1. Unenforceable against minor
2. Guardian decides yes or no
3. Guardian says yes = ratify continues
4. Guardian says no = repudiation
5. Can recover performance via Rei vindication ( property )
6. Or claim condictio ( money )
Civil Obligations
1. Enforceable against major
2. Must abide by guardian’s decision
3. Cannot use exception non adimpleti contractus
4. ‘ I only perform if you perform ‘
5. Minor does not have to perform

Calculation of Enrichment
Lessor of : minors enrichment or majors impoverishment
1. Majors decreased estate ( impoverishment )
- Amount = true value of performance
- Not contract price

2. Minors increased state ( enrichment )

- Minor still has performance = give back even if value decreased
 - Minor lost / or destroyed = no claim
- Minor sold it =
 Give back proceeds (if any) @ litis contestatio
 Bought luxuries – give back value / or item
 Bought stuff that no longer has – no claim
 Bought household necessaries = liable for amount (even if GONE) (food, rent,
clothes, meds)

Minority : The guardians assistance

What if minors conclude contracts that place OBLIGATIONS on the minor?

1. contracts concluded with assistance

- The RULE: They incur binding contractual obligations in the same way as
majors.
2. contracts concluded without assistance
- The RULE: They cannot incur binding contractual obligations.
Restitutio in integrum: restoring the party to the previous position

 A minor may use this remedy to escape liability in terms of an agreement

concluded by him or her with the assistance of his or her guardian 
 Cannot be used in marriage – no contract/ therefore void.

 Requirements for remedy: 

- The contract was entered into with the guardian’s consent or assistance, or by
the guardian on behalf of the minor. It is also available if the parent or
guardian ratified a contract concluded by the minor without the necessary
assistance

- The contract was prejudicial(harmful to someone or something ) to the minor

at the moment it was concluded.

 Purpose of restitutio in integrum:

- The purpose of restitutio in integrum is to restore the previous position 

- Complete restitution from both sides must take place, placing the parties in
the position they would have been in had they never entered into the contract 

- Each party must return everything he or she received in terms of the contract,
as well as the proceeds, or any advantage derived from the contract 

- Further, each party must compensate the other party for any damages
suffered as a result of the contract ( questionable – no liability on minor )

What happens if the minor is not contractually liable or there is doubt?

 If minor is not contractually liable, he/she need not rely on restitutio in

integrum – no contract / contract is void.
 if doubt exists regarding whether minor contractually liable, minor can apply
for restitutio in integrum but will have to prove that the contract was to his
detriment.
 The overall impact is similar because parties are restored. Restitution requires
prejudice.
 NB: Minor can invoke remedy in situations where he has suffered prejudice;
 Cannot be used to set aside a marriage or to escape delictual / criminal
liability. Marriage is not a contract therefore cannot be implemented.
When can a minor apply for restitutio in integrum?
 before attaining majority with the assistance of his guardian or the guardian
can do so on behalf of the minor
 if guardian fails to assist minor, a curator ad litem may be appointed
 minor can await majority ( only if close to turning 18 )
 NB: restitutio in integrum accorded to a minor does not release someone who
has bound himself as a surety for a minor

The fraudulent minor NB EXAM

 A minor who misrepresents himself to be a major or to be emancipated or to

have the necessary consent
 AND thereby misleads someone to enter into a contract with him
 Misrepresentation can be express (i.e. lying about age) or tacit (i.e. saying
nothing)
 Writ tacit misrepresentation:
- whether minor’s conduct amounts to a misrepresentation depends on the
circumstances of each case
- if minor knows that other party thinks he is a major and does nothing to
remove the erroneous belief, he commits a misrepresentation
- BUT: minor must be old enough to be mistaken for a major (Louw case)

Grounds on which a minor could be held liable:

 Everyone agrees that the minor should be liable in some way
 The other party should not suffer due to the minor’s misrepresentation
 But the minor should still be protected against the immaturity of his judgment
 Two possible bases of liability: contractual liability and delictual liability

1. Contractual liability ( inapporiopate for the fraugalent minor,

misinterpretation shouldn’t elevate the minor and minor has other remedies )
 Arguments in support of contractual liability:
- Fraudulent minor should be denied restitutio in integrum. Thus, bound to
contract
- See Fouche v Battenhausen & Co. 1939 CPD 228 where minor denied
restitutio and contractually bound
- Problem with argument: fraudulent minor’s unassisted contract does not need
setting aside by restitutio in integrum because not contractually liable and can
simply use rei vindicatio or condictio to recover performance rendered under
unenforceable contract
 
Doctrine of Estoppel

 Meaning: Where one party (the estoppel raiser) has a reasonable belief in
misrepresentation ( law creates fiction and pretends the lie is real ) made by
the other party (the estoppel denier) and relies thereon to his own detriment,
the estoppel raiser my hold the estoppel denier to the misrepresentation.
Example, when a person lies, the person has to rely on the lie.
 Alternative remedy for the major.
 Comes from English law. ‘ we will uphold the lie, the law creates a fiction and
pretend the lie is true and therefore the contract is valid. ‘
 Purists do not like estoppel.
A successful pleas of estoppel has the effect that the mispreprsented facts are
upheld as if they were correct.

 if minor misrepresents himself as a major and another person enters into a

contract with him because of the misrepresentation, the minor cannot raise his
minority as a defence and is therefore liable on the contract as if he were a
major when the contract was concluded
 Therefore: the major can sue minor on the contract and then use estoppel to
prevent the minor from using minority as a defence
 Minor will then be contractually liable which is problematic for reasons below
- Agreed that not acceptable to hold fraudulent minor liable in contract
- Doing so would give them the power to alter their own legal capacity by lying
- Which defeats purpose of limiting their capacity to act which is there to protect
them

Requirements

1. Must be misinterpretation
2. The misinterpretation must be made by minor and not anyone else.
3. The third party relied on the misinterpretation
4. The third party suffered damage ( financial )

2. Delictual Liability

- Modern authors agree that fraudulent minor should be liable on the basis of
delict
- Argument behind this: if old enough to convince others that they are majors or
emancipated, then old enough to incur delictual liability
- Delictual liability will however only ensue if all elements of a delict satisfied
 - In particular must prove: causal link between minor’s misrepresentation and
their damage, i.e. they were induced as a consequence of misrepresentation;
and the other party must have suffered a loss
- Once misrepresentation prove, onus shifts to minor to show that major not
misled

Wills
- What is the capacity of a minor with regard to wills?
- A person who is 14 year old and over may be a witness to a will
- 16 year old: may make his own will and dispose of his property as he chooses
in his will (No consent required)
- All wills need 2 witnesses

Marriages and civil unions

1. Consent Requirement
a) Civil marriages
- General rule: Minors have no capacity to marry
- Minor may enter into marriage if he/she has requisite consent
- Who must give consent? all guardians of minor must consent to marriage
unless court orders otherwise
- boy below age of 18 / girl below age of 15 must obtain consent of Minister of
Home Affairs in addition to obtaining guardian’s consent – S26(1) of
Marriages Act
- NB: Minister’s consent applies only to girls between the ages of 12-15 years
and boys between 14-18 years
- Statatory rape – 3 years difference or more between the two
- If guardian is absent or in any other way incompetent to consent to minor’s
marriage, the COMMISSIONER of child welfare may grant consent – S25 of
Marriages Act
- Commissioner must also determine whether it is in minor’s best interest to
enter into an antenuptial contract
-  if it is, commissioner must ensure that an antenuptial contract is entered into
before he consents to the marriage and commissioner must assist minor in
the execution of the contract – S25(2) and (3) of Marriages Act
- if commissioner refuses to consent to marriage, minor may approach the High
Court for consent – S25(4) of Marriages Act
- Minor may also approach high court if one / more of his guardian’s withhold
consent
- court may grant such consent only if it is of the opinion that the refusal to
grant consent is without adequate reason and contrary to the minor’s interests
- if court grants consent, it may also order that a particular matrimonial property
system must apply to the marriage
- NB: a minor who has been married before does not require consent to
remarry – S24(2) of Marriages Act
- Best interests of minors are looked at.
 - Once a minor is married they become a major, if divorce they do not need
consent as they auto become a major.

Customary Marriages
- Recognition of Customary Marriages Act – S3(1)(a)(i) and (4)(a): minor may
not enter into a customary marriage unless he has the written consent of the
Minister of Home Affairs or a duly authorized officer in the public service

- c) civil unions

- Civil Union Act restricts civil unions to persons who have already reached the
age of 18 years
- therefore a minor cannot enter into a civil union even if he is assisted by his
guardian

Effect of absence of consent ( marriages without consent )

1. Civil Marriages
a) Validity of marriage

 If the consent of the Minister was needed but not obtained, the minor’s
marriage is null and void
 The Minister may declare the civil marriage valid if the marriage is desirable,
and in the parties’ interests, and in all other respects complies with the
Marriage Act 25 of 1961
 If a minor fails to obtain the required consent from his or her parents,
guardians, or the commissioner of child welfare, the marriage is voidable 
 The marriage may be dissolved by the court on application by: 
- The minor’s parents or guardian, before the minor attains majority and within
six weeks of the date on which they become aware of the existence of the
marriage
- The minor, before attaining majority or within three months thereafter.
- Putative marriage – find out they trans after they married or do not want sex
only after marriage. Marriage that’s based on false presumption. Either party
can apply to high court or minister of affair for consent retrospectively. ( going
back in time , make the marriage valid as if the consent was given at the start.
)
- Guardians can apply to have the marriage dissolved. But its unlikely the court
order is necessary as there is no marriage to dissolve . Because it is null and
void. It is possible to get it validated but also manage to get marriage
dissolved yet if two minors get married they are not legally married.
Patrimonial consequences

 Regulated by Matrimonial Property Act 88 of 1984 section 24

 If the marriage is dissolved due to lack of consent, the court may make any
order with regard to the division of the matrimonial property that it deems just
 If the marriage is not dissolved, the patrimonial consequences are the same
as if the minor were of age when the civil marriage was entered into
 Any antenuptial contract in terms of which the accrual system is included and
which was executed with a view to the marriage is regarded to be valid.

. Medical treatment, operations, HIV tests and contraceptives, abortions

Medical treatment and operations

 S129 of Children’s Act: a minor aged over 12 may independently consent to
medical treatment being performed on him or his child, provided he is
sufficiently mature and has the mental capacity to understand the benefits,
risks, social and other implications of the treatment (S129(2))
 If he is insufficiently mature or unable to understand the benefits, risks, social
and other implications of the treatment, his guardian’s consent is required
(S129(4))
 A child who has turned 12 may also consent to an operation on himself if he is
sufficiently mature and has the mental capacity to understand the benefits,
risks, social and other implications of the operation, but must still be duly
assisted by his guardian (S129(3))
 If he is insufficiently mature or unable to understand the benefits, risks, social
and other implications of the operation, his guardian’s consent is required
(S129(5)).
 Guardian may not refuse to assist minor in respect of an operation or withhold
consent to medical treatment or an operation purely on the ground of religious
or other beliefs, unless the guardian can show that there is a medically
accepted alternative to the operation or medical treatment (129(10)).
 If minor or guardian unreasonably withholds consent to treatment or an
operation, the Minister may give consent (129(7)(a) and (8)). Same rules
apply where guardian unreasonably refuses to assist a minor over the age of
12 for an operation (129(7)(a)).
 Minister may also consent where guardian is incapable of consenting,
assisting the child, cannot readily be traced or is deceased (S129(7)(b)-(d)).
termination of pregnancy

 If Minister, minor or guardian refuses or is unable to give consent, the High

Court or Children’s Court may give consent (S129(9)).
 If the treatment or operation is necessary to preserve the child’s life or to save
the child from serious and lasting physical injury or disability and that the need
for treatment or operation is so urgent that it cannot be postponed to obtain
the requisite consent, the superintendent or in the absence of the
superintendent, the person who is in charge of the hospital may consent to it
(S126(6))
 Any woman over the age of 12 can give informed consent, the guardians
consent is not necessary but can be proof the consent is informed.

Can a minor consent to termination of pregnancy?

In terms of the Choice on Termination of Pregnancy Act, a pregnant minor of any
age may independently consent to the termination of her pregnancy

HIV Testing ( diff to normal rules of testing )

What are the rules on HIV test on a child?

( exceptions , all still need high court order )
S130(1) to 133 of the Children’s Act: HIV tests (already in operation)
 A child may undergo an HIV test only under the following circumstances:
- if the test is necessary to establish whether a health worker may have
contracted HIV due to contact in the course of a medical procedure with any
substance from the child’s body that may transmit HIV
- if any other person may have contracted HIV due to contact with a substance
from the child’s body that may transmit HIV, and the court has authorised the
test
- if the test is in the child’s best interests and the necessary consent has been
given for the test
- Children may not be forced to take a HIV test
- If its required by the provisions for Child care act ( adoption )

When can HIV positive status be disclosed?

 S133(1): HIV positive status without consent may be disclosed only in the
following circumstances:
- if the person who makes the disclosure does so within the scope of his
powers and duties ito the Children’s Act or any other law;
 - if the disclosure is necessary for purposes of carrying out the provisions of the
Children’s Act;
- if the disclosure takes place for purposes of legal proceedings
- if the disclosure is made into a court order

Access to contraceptives by children

 Regulated by Children’s Act s134

 No person may refuse to sell condoms to a child over the age of 12, or refuse
to provide a child over the age of 12 with condoms on request where the
condoms are provided or distributed free of charge
 If a child is over the age of 12, proper medical advice is given to the child, and
the child is medically examined to determine whether there are any medical
reasons why contraceptives should not be provided to the child,
contraceptives other than condoms may be provided to the child on his or her
request without the consent of the child’s parent or caregiver.
 But if they are for sale, the child has no right to free condoms.

Capacity to litigate
- ability of minor being sued or sue

 As a general rule, a minor has limited locus standi in civil proceedings

( limited capacity to litigate )
 minor’s guardian may either sue or be sued on minor’s behalf or minor may
sue or be sued in his own name with guardian’s assistance ( sue with
assistance )
 if minor does not have a guardian, a curator ad litem is usually appointed to
assist the minor ( case in name of minor )
 Traditionally, a curator ad litem is appointed for a minor in the following
circumstances:
- The minor has no guardian
- The guardian cannot be found
- The guardian unreasonably refuses to assist the minor
- The interests of the minor are in conflict with those of the parent
- The litigation is against the guardian.
- Guardian is in prison
- Conflict of interest – interest of guardian are in conflict with interest of minor.
- For example, guardian sold house to minor. Or minor suing guardian or vise
versa
 In some civil proceedings a minor may litigate without assistance:
- A minor may litigate without assistance if the High Court grants him or her
venia agendi
- An inquiry in terms of the Maintenance Act 23 of 1963 is a sui generis
procedure which is not subject to the common-law rule that a minor must be
 assisted by his or her guardian in civil proceedings, except of minor may be
prejudiced by the absence of a guardian
- If the minor applies for permission to get married without the guardian’s
consent.

Capacity to incur delictual and criminal liability

1. . Criminal accountability:
- Regulated by Child Justice Act 75 of 2008
- A child below 10 years is completely unaccountable for his or her crimes
(Children’s Justice Act)
- Whilst as a child between 10 -14 years will be presumed to be
unaccountable. There is a presumption operating in their favour that they
aren’t accountable. ( don’t know right from wrong )
- Once child turns 10, evidence may be presented to show that he is indeed
criminally accountable
- Minors between 14-18 years are rebuttably presumed to be criminally
accountable

2. . Delictual Liability
- He/she must have the mental ability to distinguish between right from wrong
and act accordingly
- Common law: rebuttably presumed that minors between the ages of 7 and
puberty are not accountable for their delicts
- puberty for boys: 14
- puberty for girls: 12
 once boy turned 14 years and girl turned 12, evidence may be presented to
show that the particular child is indeed accountable for a delict he / she
committed
 Boys between 14-18 years and girls between 12 – 18 years are rebuttably
presumed to be delictually accountable: they are considered accountable until
the opposite is proved

Other factors that affect status and capacity

1. Mental illness
- sources ( laws that are applicable ) of rules relating to mental illness
- When a person is unable to understand the nature and consequences of his
or her acts.
- The law will NOT attach consequences to the acts or expressions of will of a
person who is mentally ill.
- There is no act as someone who is mentally ill as they cannot be held
accountable so it will be void.
Effects of declaration of mental illness

ILLNESS / RECEPTION (in terms of Mental Health Care Act)

- It is not conclusive proof of mental illness at the time of performance of
juristic act BUT it shifts the ONUS OF PROOF!
- ONUS rests on person who alleges that medically certified person
experienced a lucid interval.
- A person can be declared mentally insane
- if you are declared mentally insane, there is a presump that you are mentally
ill therefore this person can have contractual capacity. If the presump can be
rebutted. A mentally ill person can have a lucid moment , aka mentally sane.

ONUS
- who needs to disprove the presumption?
- on the person alleging incapacity because of mental illness. the onus is on
the person alleging the lucid moment.
- for a person how is sane, theres a resumption that they’re sane and therefore
there is no shift of onus

PRESUMPTION
- Everybody is presumed to be in full possession of his or her mental faculties
and to have capacity to act, till the opposite is proven.

BURDEN OF PROOF?
- How much you have to prove
1. Balance of probabilities
- The facts suggest there is higher than 50% chance they are insane
2. Beyond reasonable doubt
- 99% probability ( murder etc )
curatorship & administration:
- The curator looks after interest of mentally ill person.
- As a bonus paterfamilias (a reasonable person)
- Exe parte application to the high court to become a curator
Types
1. Curator personae
- Looks after day to day person
2. Curator bonis
- Looks after finances
3. Curator ad litem
- Sues on behalf of person

mental illness and the commission of delicts and crimes

 Presumption: Every person is presumed to be in command of his or her
mental faculties, unless disproved.
 Onus: On he / she who alleges it.
Lucid interval
Fit to stand trial?
 delict : the do not have the fault requirement ( neg of intent )
In severe cases of mental illness, there may not be a act and no criminal
capability
 can they distinguish between right and wrong and act in accordance with
that understanding?
(i.e. not appreciate the wrongfulness of their action)

Intoxication
Onus
- The person who alleges the intoxication must prove it
Effect
- Contract is void ab initio
- Restoration
- Cannot be ratified
Delict / crime
- Affects capacity to be held accountable
TEST: where the influence of drugs or alcohol is so strong as to make a person of
unsound mind i.e. to understand and appreciate the nature and consequences of
their actions. Not just reckless, pliable or willing. There needs to be extreme
intoxication.
When
- Temporary = loss of capacity to act
- Alcohol / drugs must deprive a person of their powers of reasoning
- Contract = person must be unaware of entering into contract and of provisions
of contract
 intoxication and the commission of delicts and crimes

Delict
- negligence to get so drunk / drugged, and usually not an excuse

Crime
- a person can escape criminal liability if so intoxicated that cannot
understand and appreciate the unlawfulness of his action. (s v chretien)
charge of murder is permissible

Prodigality
- Person with normal mental capacity, who squanders their assets, in an
irresponsible and reckless way, due to a defect in their power of judgment.
- Threatens to reduce himself or dependents to destitution.
- Cannot handle their finances, they spend all the time. Reckless with money
- Only get powers back through court order

Procedure
- Court application by notice of motion;
- Respondent notified.
- Sometimes rule nisi is asked for.
- Court order must be published

 Court application by notice of motion;

 Respondent notified.
 Sometimes rule nisi is asked for.

Constitutional
 Controversy
 Probably not ( Heaton )
 The duty to support is probably an insufficient justification for infringing on the
prodigals rights
Delicts and crimes
 Liable
Capacity to hold office
 Cannot be director of company, executor of deceased estate or trustee
insolvent estate.
Capacity to litigate
 No , not usually without curator if it relates to their estate
 Yes, for divorce or having prodigality court order set aside
Legal capacity
 Participation in commercial dealings and handling finances
 No capacity to litigate on property
Capacity to perform juristic act
 Legal position = like a minor
 Need to be assisted by this curator
 If prodigal acts without curator = in contempt of court and contract voidable at
instance of curator

Insolvency
Ends
 Upon rehabilitation by an order of the high court

Capacity

 Capacity to perform juristic acts – With written consent of trustee. If not =

VOIDABLE
 Section 23(2) of Insolvency Act
 Section 23(3) – needs permission for certain professions /occupations
 Capacity to litigate – may sue or be sued, as long as not a matter affecting
estate
 (See textbook par. 9.3.3)
 Capacity to hold office – cannot hold certain positions.
 Accountable for delicts and crimes – still has this capacity
Definition
 A person whose liabilities exceeds his assets = sequestration order against
them by High court
Estate
 Turned over to the Master of the High Court UNTILL…
 A trustee is appointed.
 Temporary management
 What types of property vests in trustee?
 Contractual capacity is limited in 2 situations
 1. cant sell your property
  2. cant hold certain positions
 Cant work at general dealership of manufacturing
Capacity in general
 Generally does have full capacity to act
 Has ability to understand the nature and legal consequences of acts

Disability
Who
 Physical disabled – knows and understands the nature and consequences of
their actions.
 E.g. deaf, dumb and those with chronic diseases / serious illness; epilepsy;
old age; mental weakness or retardation (but not mental illness).
Legal capacities
 Does not in itself affect the person’s capacity to act or other capacities.
 Curator’s role is to ASSIST when such person finds it difficult or impossible to
handle his or her affairs.
 VALID transaction – if person capable of performing legal transaction.
 Question of fact – depends on the actual capacities at the time of acting

Curator
 Common law – our courts does have power to appoint a curator.
 For those who due to bodily defect are unable to take charge of their affairs.
 High Court still appoints curators today.
 Court ASKS whether person has consented – as such person is perfectly
able to understand the nature and consequences of their actions.
 Ex parte Wilson: In re Morrison – court dismissed application for appointment
for curator bonis for 90 year old lady.
Domicile
 A persons legal home
 Is legally deemed to be constantly present / resides
 For the purpose = exercising / fulfilling duties
 Even if factually absent

When is it important to know where a person is domiciled ?

 2 reasons
1. Which country’s laws apply?
2. Which court has jurisdiction?

 Status in SA is determined by the law of the country where a person is

domiciled ( not a citizen )
 SA law uses Lex loci domcili
 Domicile is different to nationality citizenship or residence ( public law
relationship )
 Domicile is concerned with PRIVATE LAW matters

Choice of law problem

 A conflict of law problem can be unclear which countries law is applicable
 Example = A lives in New york and B lives in cape town , then contract is
signed in london.
Personal status
 Depends on personal domicile
 Example = majority
Marriage regime
 Depends on domicile of the husband

Succession
 Ruled by where a person was domiciled on the date of their date

Fields of private law where domicile is

1. Personal status
 Is a person a minor or a major?
  E.g. 19 year old in SA a major, but perhaps a minor
elsewhere.
 This then impacts: Capacity to
 marry or to contract etc.

2. Matrimonial property system

 If no ante-nuptial contract, then the couple’s
 matrimonial domicile applies.
 Determined by husband’s domicile at time of marriage (wedding). Gender
specific law.
 BUT: What about same sex partners??
 See example on p. 119 of textbook.
 See case law.

3. Jurisdiction
 Court where defendant is domiciled has jurisdiction
 Also specific to certain applications eg, presumption of death

4. Succession
 Deceased’s domicile on the day of his death determines
 Law of intestate succession;
 Capacity to make a will;
 Capacity to inherit;
 Rules of interpretation used

Where is a person domiciled

1. Domicile of choice
 Capacity to act
 Choose domicile for him / herself

2. Domicile of closest connection

 Does not have the capacity to acquire a domicile of choice

1. Domicile of choice

 Factum requirement
- Physically present is always a requirement.
- Lawfully present – not
- illegal immigrants.
 - Does not apply to criminals on the run !
 Animus requirement
- Intention to settle for indefinite period.
- Should not contemplate ending
- residence.
- Johnson v Johnson; Eilon v Eilon (Need not be to remain permanently, just
indefinitely)
- TEST: Subjective

Section 1 (2) domicile act

- Lawfully present ( factum ) in a place with intention ( animus ) to settle there
indefinitely
- 1. Is the person competent to establish a domicile of choice
- 2. Has the person in fact established a domicile of choice
Section 1 ( 1) domicile act
- All majors ( 18+ years / married) who have mental capacity to make rational
choices ( is of sound mind )
- Regardless of gender or maritual status

What if you have no free will

- Military staff – yes both where they are stationed or another place
- Diplomats – yes even if they are in SA on behalf of a foreign country
- Prisoners- not at prison because of lack of free will but yes automatically at
prison if life imprisonment

Domicile of closest connection

1. Mentally incapacitated
- Place most closely connected to
- Not curators domicile
2. Minors
- Place most closely connected to
- Assumed to be parental home
- Unless rebutted

Domicile of origin ( no longer one of official domiciles but can be used as evidence
for other domicles
- Domicile of origin is a person’s FIRST DOMICILE.
- In terms of common law a baby’s first domicile would have been the domicile
of origin i.e. the domicile of the guardian.
- The law has changed – not it is the domicile of closest connection.
 - Domicile of origin not so relevant anymore. See par. 6.
General principles
1. You must have a domicile always
2. No one loses their old domicile before acquiring a new one
3. You can only have one domicile at a time

Proving domicile
- Based on balance of probability
- Above 50%
END OF LEGAL PERSONALITY
DEATH

1. Death terminates legal personality

2. Being dead does not end legal personality
3. Proof of death ends legal personality
4. Proof of death = death certificate
5. Death certificate = prima facie proof of death

When are you dead

1. Legal approach = death certificate
2. Biological approach:
A) TRADITONAL APPROACH: heart and lung activity measured ( has a
disadvantage in that humans can reach deep levels of consciousness with
deep breathing )
B) MODERN APPROACH: also looks at brain activity via EEG Machine ( uses
A as well ) brain dead = dead

- NATIONAL HEALTH CARE ACT

- DEATH = BRAIN DEAD

PRESUMPTION OF DEATH
1. Ito common law
- Private person approaches court
- It must be proved on balance of probability that the person is dead

2. Ito statutory procedure

 States takes initiative ( charge of murder )
 Magistrate must be certain beyond reasonable doubt that the person is
dead

Significance of presumption of death order

1. Marriage
 Can be necessary to terminate existing marriage to remarry
2. Succession ( inheritance )
  Not possible to inherit unless they are dead or presumed dead
Sequence of death
 Commorientes: people who die more or less simultaneously in the
same disaster
 Q: Why is it important to establish which of the commorientes died
first?
 A: important in order to determine whether one inherited from another
 General rule: moment of death of commorientes is a question of
fact
 Unless there is evidence to the contrary, a court will make an order that
the persons died simultaneously.
 South African case law states that where a person survives an extra
day the rule does not apply

Returning from the dead

 Where it transpires that the person presumed dead is alive, she/he or any
interested party may approach the relevant court for:
- An order setting aside the presumption of her death and an order that
her/his estate not be further divided.
 Relevant court: the High Court of the area where the missing person was
domiciled at the time of his or her disappearance has jurisdiction to pronounce
or set aside an order presuming his or her death
 Some of the consequences of a presumption of death order cannot be
changed.
 E.g.: if the marriage is dissolved, it does not revive when the presumption of
death order is cancelled.
 However patrimonial consequences of such an order can be reversed, you
can get what money is left back
 E.g. Heirs must either return anything that they received or its value.
 Should they fail to do so, they can be sued by means of an enrichment action,
the condictio indebiti.

Other aspects relating to the dead

 post-mortem examination
- Examination done to discover the identity of the deceased and the cause of
death.
- Post-mortem examination is considered a permissible infringement of the
integrity of the corpse
- Regulated by the Inquests Act 58 of 1959 and the National Health Act 61 of
2003.
 - If a person has died as a result of the crime, the body will not be released for
burial until the examination is complete and relevant tissue has been secured.

 crimes involving a human corpse

- body snatching and grave robbing
o Body snatching is the removal of a corpse (or parts thereof) from its place of
internment.
o It cannot be regarded as theft since a dead body cannot be owned (res extra
commercium)
o It is therefore not ownership rights that need protection by the law, but the
interests of the community at large.
o Grave-robbing is the disturbance of a grave or consecrated ground.
o Usually to forage for artefacts for collection or sale
o Both body snatching and grave robbing is criminalised as “violating a grave”

 Necrophilia
- a crime under the Criminal Law (Sexual Offences and Related matters)
Amendment Act 32 of 2007.
- S16: “A person who unlawfully and intentionally commits a sexual act with a
human corpse is guilty of the offence of committing a sexual act with a
corpse”.
- Sex crimes, e.g. zoophilia/bestiality and necrophilia, are categorised as
“crimes against the community” / “crimes against sexual morality”.

Returning from dead and cryogenics ( freezing your body )

 Physical death is not the same as legal death
 Presumption of death makes it possible for a person’s legal personality to be
terminated by court order, only to be reinstated later when the person returns
 Cryogenics is the study of what happens when things are frozen to very low
temperature so as to preserve life
 It may become possible in the future to preserve a human body in this way for
purposes of revival later on
 If this does occur, the law will need to be adapted to cater for humans who are
re-vitalised at a later time