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INTRODUCTION

1.1 Definition of the law of persons

Loosely defined, the law of persons is that part of private law which determines which beings
are legal subjects, when legal personality begins and ends, what legal status involves, and
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what effect various factors (such as being born of unmarried parents, minority, and mental
incapacity) have on a person’s legal status.
Before the law of persons is discussed in detail a few basic legal concepts should be
explained.

1.2 Law and rights

The law can be viewed from different angles. On the one hand it is a system of norms of
conduct or rules posited by competent bodies to regulate relations between members of the
community in a peaceful and just manner. In this sense we are concerned with law in the
objective sense.1 Examples of such norms of law are that one should fulfil one’s contracts,
that one person should not cause damage to another, that one should have a driver’s
licence if one drives a motor vehicle on a public road, and so forth.
Viewing the law from another angle, it is not norms of conduct or rules that are at issue,
but rather a network of legal relationships amongst legal subjects. Here we are concerned
with rights, or law in the subjective sense.2 For example, if a person owns a motor vehicle,
he or she has a right to that motor vehicle, which all other legal subjects must respect, and,
if a person concludes a contract with somebody else, that person has a right to fulfilment of
the contractual obligations, which the other party to the contract must meet.
Rights thus concern a dual relationship:
(1) The legal relationship between the bearer of the right and other legal subjects. This is
the subject–subject relationship. The content of this relationship is a right and a cor-
responding obligation – the bearer of the right is entitled to the right as against other
legal subjects, who are obliged to respect it. After all, it makes little sense to speak of a
right if it does not operate against other legal subjects.
(2) The legal relationship between the bearer of the right and the object of the right. This
is the subject–object relationship. One can speak of a right only if the right relates to
an object. For example, one has a right to one’s motor vehicle (which operates against
all other legal subjects). It would be meaningless to have a right against others if that
right did not pertain to some object or another.3
The connection between law and right is that the norms of the law determine how far the
powers of the bearer of a right extend; in other words, the law determines the content and
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1 See further Hosten, Edwards, Bosman and Church Introduction to South African Law ch 1; Van Apeldoorn
Inleiding tot de Studie van het Nederlandse Recht 36 et seq, 128; Van der Vyver and Joubert Persone- en Familiereg
31 et seq; Van Zyl and Van der Vyver Inleiding tot die Regswetenskap 412 et seq.
2 Van der Vyver and Joubert Persone- en Familiereg 1 et seq; Van Zyl and Van der Vyver Inleiding tot die Regs-
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wetenskap 355 et seq; Joubert 1958 THRHR 12 et seq, 98 et seq.

3 See further Joubert 1958 THRHR 12 et seq, 98 et seq.

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