THE END OF

LEGAL
SUBJECTIVITY
REVISION EXERCISE
• 1. Name two rights, that are contained in the Bill of
Rights in the Constitution, that are important for South
African Law of Persons and the Family. (2)
• 2. Explain briefly why animals are not “legal persons”
in South African law. (3)
• 3. Briefly describe what happened (facts) in the case of
Ex Parte Boedel Steenkamp and the decision of the court
(judgment). (5)
 DEATH OF THE LEGAL
SUBJECT
THE TERMINATION OF
LEGAL SUBJECTIVITY
• By death
• Criteria used to determine death?
Somatic death terminates legal subjectivity
= permanent cessation of the functions of the
vital nerve centres of the brain-stem =
individual ceases to exist as a functional whole
• Other cells in the body can continue
“functioning” after death
• Until molecular death sets in.
• S v Williams
Shot, went to hospital, two days later turned off
ventilator
Was this a novus actus interveniens? No
Deceased was already dead…
COMMORIENTES
 COMMORIENTES
• People who die more or less simultaneously in the
same disaster..
• Why important to know who died first? Inheritance..
• Current position: presumed to have died
simultaneously.
• If allege one outlived the other then must prove this
on a balance of probabilities.
• Ex Parte Graham 1963 4 SA 145 (D)
HOMEWORK

• Summarise the case of Ex Parte

Graham 1963 4 SA 145 (D)
PROOF OF DEATH OF A LEGAL
SUBJECT
• Death certificate (issued by medical
doctor or magistrate)
• Direct evidence (person saw body of
the deceased)
 CONSEQUENCES OF DEATH

• Deceased’s marriage is dissolved

• Life policies paid out
• Deceased may no longer hold any offices
• No longer taxable
• Criminal actions lapse
• Private law actions for compensation lapse
(unless stage of litis contestatio reached)
 MISSING PERSONS

•No body
•What do we do now?
•- can we administer the estate?
•- can heirs inherit?
•- can the spouse remarry?
•IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE
TOWN) In the ex parte application of: MILLECENT MATROSE Applicant Re: Application
for presumption of death of: BERNARD NDLOVU Missing person NOTICE OF MOTION
BE PLEASED TO TAKE NOTICE that the Applicant intends to make application to this
court on 2 February 2015 at 10h00 or as soon thereafter as the matter may be heard for an
order in the following terms: 1. A rule nisi be issued, calling upon all interested persons to
show cause, if any, to this Honourable Court at 10h00 on 4 March 2015 as to why an order in
the following terms should not be granted: 1.1 That BERNARD NDLOVU, born on 15 July
1970, be presumed to have died on or about 18 September 2011. 2. This rule nisi shall be
published in the form prescribed by the Registrar as follows: 2.1 In one edition of the Cape
Argus in English; 2.2 In one edition of a local newspaper circulating in Eersterivier area in
Xhosa; 2.3 Once in the Government Gazette, both in English and in Xhosa. BY ORDER OF
COURT HIGH COURT REGISTRAR (9929154)
 ORDER OF PRESUMPTION OF
DEATH
• In terms of common law
• Or statutory procedure – only where
person died of unnatural causes
• But can still use common law instead of
the statutory procedure
ORDER OF PRESUMPTION OF DEATH
IN TERMS OF THE COMMON LAW

• Who can apply?

Any person who has interest in the death of the missing
person
• Where must they apply?
To the High Court in whose area the missing person lived
at the time of his or her disappearance
• Burden of proof?
On a balance of probabilities (know this vs “beyond a
DOES THE COURT MAKE AN ORDER
THAT THE PERSON IS DEAD?

• No!
• Only an order that the missing person
is presumed to be dead.
MUST PERSON BE MISSING FOR A
SPECIFIC PERIOD OF TIME?
FACTORS CONSIDERED BY THE COURT
* Circumstances under which the person
disappeared. Eg. dangerous situation
• Period of time missing
• Age of the missing person
• Health of the missing person
 CONSEQUENCES OF AN ORDER
OF PRESUMPTION OF DEATH
• Creates a rebuttable presumption that the person
is dead
• Estate of missing person is divided between
heirs , heirs must provide security
• Life policies paid out…
• Apply for dissolution of marriage in terms of
Dissolution of Marriages on Presumption of
Death Act
 TO DO

• Read through section on order of

presumption of death in terms of the
Inquests Act ; anatomical donations
and violation of a body or grave.
ORDER OF PRESUMPTION OF DEATH:
INQUESTS ACT

• Person dies under circumstances that raise doubt

as to whether death was due to natural causes
• Body found or not found
• Police official – investigate circumstances of
death
• Report to the magistrate of the district
IF THERE IS A BODY?
• District surgeon must examine
• Ascertain cause of death
• Police official submit report to public prosecutor who submits
report to magistrate.
IF THERE IS NO BODY?

• S 16 if the evidence proves beyond a

reasonable doubt that death has occurred then:
- Magistrate records:
* Identity of deceased;
*Cause or probable cause of death;
* Whether or not death caused by actions that
prima facie appear to be a crime
CONSEQUENCES OF ORDER OF
PRESUMPTION OF DEATH

• Same as those of common law

• S 2 Dissolution of Marriages on
Presumption of Death Act = automatic
dissolution of marriage
 WHAT ARE THE
DIFFERENCES BETWEEN
THE COMMON LAW AND
STATUTORY PROCEDURES?

Draw a
table
 ANATOMICAL DONATIONS

Human Tissues Act 65 of 1983

• Consent by donor (will/document signed by donor
and two witnesses/oral statement with two
witnesses). Must be over age of 14.
• Consent by spouse/major child/ parent or guardian
or major brother or sister.
• District surgeon consent – cannot reach family
and tissues necessary to save life of recipient
ANATOMICAL DONATIONS

• May not receive compensation

• May state purpose for which his or her
body or tissue from body may be used
• May revoke donation in the same way
as which it was made
 PURPOSE FOR WHICH BODY OR
TISSUE MAY BE USED

• Therapy
• Research
• Beneficiaries: hospitals; universities (medical or
dental research or training); institutions authorised
to deal with bodies; medical practitioners; dentists;
person who requires tissue for therapy.
WHEN MAY TISSUE BE
REMOVED?

• After somatic death has set in

• Before molecular death

• May not reveal identity of the donor

(unless consented)!
VIOLATION OF A DEAD BODY
AND GRAVE
• Improper treatment of deceased bodies –
criminal prohibitions
• Specific requirements must be complied
with or guilty of an offence
 REVISION QUESTIONS

• Define the Law of Persons.

• Define a “legal subject”.
• Define a “juristic person”.
• Define “status”.
• What sections of the Constitution are
especially relevant for the Law of Persons?
 REVISION QUESTIONS
• Explain briefly what section 239 of the
Criminal Procedure Act 51 of 1997 states with
regards to the requirement for evidence in
respect of child murder or concealment of
birth.
• What are the common law requirements for
birth for the purposes of the granting of legal
subjectivity?
 REVISION QUESTIONS
• Explain what is meant by the “nasciturus
adage” and list the requirements for the
application of the adage.
• Explain briefly what happened in the case
of Ex parte Boedel Steenkamp.
 REVISION QUESTIONS

• When may a woman terminate her

pregnancy? Briefly describe the
stipulations of the Choice on
Termination of Pregnancy Act 92 of
1996.