persons

and family law should embrace both private- and public-law

rights and duties is discussed further below.
The importance of being a person in the eyes of the law, both public
and private, lies in the fact that only a person can have rights and duties.
This is the essential characteristic that distinguishes a person from a
thing. The actual content of an individual’s rights and duties depends on
factors that vary from person to person, factors that collectively determine
legal status and capacity. But the capacity to be the bearer of rights and
duties is common to all persons. [4] Things, on the other hand, neither
have nor are they capable of having rights and duties: they are the
objects of the rights and duties of persons. This does not mean that the
law is indifferent to the way in which things are used or treated. Thus the
ancient requirement that we should use our property in a way that is not
harmful to other persons (sic utere tuo ut alienum non laedas), which
underlies our law of nuisance, [5] restrains the unbridled exercise of rights
of ownership. But the law’s stewardship over the exploitation of things is
conceived in the interest of the community at large, not of the things
themselves. Cruelty to animals is a statutory crime, and medical
experimentation using animals is subject to statutory controls, but it does
not follow that an animal has a legal right not to be treated cruelly; for an
animal, being a thing, lacks the capacity to have this right. [6]

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The purpose of such legislation is to protect the sensibilities of the

community. [7]

II Natural and Juristic Persons

Copyright © 1999. Juta & Company, Limited. All rights reserved.

Every human being is a person in law, [8] but not every person is a human
being. The law is at liberty to confer legal personality upon any entity that
it sees fit, thereby enabling it to acquire rights and duties on its own
account. [9] There are therefore two classes of persons in law: natural
persons and artificial or juristic persons. [10] The

Page 5

van, H. B. (1999). Boberg's law of persons and the family. Juta & Company, Limited.
Created from ujlink-ebooks on 2022-03-06 13:41:11.
 former category consists of human beings; the latter is made up of those
entities or associations of persons which, having fulfilled certain
requirements, are allowed by law to have rights and duties apart from the
individuals who compose them or direct their affairs. The most common
examples of juristic persons are ordinary commercial or trading
companies, though there are also concerns, often partly or even wholly
owned by the state, called corporations, such as Transnet, Eskom and
the SABC. Universities and law societies are also examples of corporate
bodies. Corporations of this kind are created by special or enabling
statutes. Corporate entities formed by ordinary citizens (companies and
close corporations) come into being upon registration in terms of the
Companies Act 61 of 1973 [11] or the Close Corporations Act 69 of
1984. [12]
Within the limitations inherent in the concept, juristic legal personality
is as effective as natural legal personality. [13] Thus a company or
corporation, though it acts through the agency of its members, does not
bind them by its misfortunes. Its debts are its own, not those of the
human beings who compose it. [14] Profits accruing to a

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company do not find their way automatically into the pockets of its
members, who may receive a share of them only by way of dividend,
loan, director’s fee or the like. The hands and mind of a company are
those of its human directors and officers, but it makes its own contracts,
holds property in its own right and pays its own income tax. Nor is its
identity altered by changes in its membership: it continues in existence
until it is deregistered or dissolved. [15] It is therefore said to enjoy
Copyright © 1999. Juta & Company, Limited. All rights reserved.

perpetual succession.
A partnership, on the other hand, is not endowed with legal personality
of its own. Though for some purposes it is treated as though it had a
separate identity, [16] it is in truth no more than an aggregate of the
individuals who compose it. And though they may shelter behind the
firm’s façade while all is well, in the last resort every partner is liable, to
the full extent of his or her private resources, for the debts of the
partnership. [17]

van, H. B. (1999). Boberg's law of persons and the family. Juta & Company, Limited.
Created from ujlink-ebooks on 2022-03-06 13:41:11.