Law of Persons 144
Topic 1: Introduction to the Law of Persons and Terminology:
Definition of law of persons:
- Part of the objective law that regulates the coming into existence private law
status and coming to end of a natural person as a legal subject
Introduction:
- Law of persons is a subdivision of the objective law (national law)
o Regarded as body of legal rules that applies as a system in SA law
- Divided into:
o Public law: regulates relationship between individuals and the state
o Private law: harmonises the relationship between persons to ensure
society remains orderly and peaceful
Ensure property is respected, contracts are adhered to
o Subjective law is the manner in which the private law regulates the
relationship between persons through concepts of subjective rights
Legal Subject:
- Anyone or anything that can be the bearer of rights, duties, and
capacities
Natural persons:
- Humans, legal subjectivity begins at birth and ends at death
- Roman Dutch Law – slaves & monstra excluded
Juristic persons:
- Group or association of persons who operate apart from their members
(natural / juristic)
- Can have rights and duties but do not possess all rights and capacities of
legal subjects
- Existence independent of members
o The University of Stellenbosch can enter into a contract with SIMUNA,
a company through which they purchase laboratory equipment every
five years. The burden to pay for the goods provided for in the contract
falls onto the university board and not the individual members such as
lecture staff or students. Thus, they operate independently from their
members.
- SA Law:
o Societies incorporated in terms of general enabling act (company)
, o Societies created and recognised in separate legislation (university or
school)
o Societies that meet common law requirements (church or political
party)
Subjective Rights:
- Network of legal relationships that exist between legal subjects as well as
legal subjects and legal objects
- Closely related to legal powers and how they may be exercised in relation to
legal objects and legal subjects
- Different rights and duties which apply between persons
Legal Objects:
- Do not have legal capacity
- Four categories:
o Things
o Performance
o Intellectual property
o Personality property
- Categories give rise to different subjective rights
- The objective law determines the content and limits of every subjective right
o Animals do not have legal capacity and are regarded as legal objects
Do have semblance of rights but only in sense of being
protected against ill treatment and cruelty
Animal Protection Act protects animals against maltreatment
o As animals do not possess legal capacity, they cannot be held liable for
their actions – owners of animals can be held liable for damages or
harm caused
Correlation between subjective rights and the legal object to which it relates:
Legal Object Subjective Right Example
Things Real right Ownership
Performance Personal right (right to Right to claim payment
performance)
Intellectual property Intellectual property right Copyright
Personality property Personality right Right to a good reputation
,Status:
- Sum total of legal subject’s juridical capacities (legal capacity)
- Refers to standing in terms of the law as well as a person’s role and function
in legal intercourse
- Factors affecting nature and extent of person’s capacities
o Age
o Mental incapacity
o Prodigality
- Every legal subject has legal subjectivity and can participate in legal
intercourse however status affects manner and extent of participation
Legal capacity:
- The capacity to have rights and duties and thus the capacity to be a
legal subject
o Legal subjectivity
o Animals seen as legal objects in the sense that should a person suffer
personal, or property damages caused by an animal, the animal itself
cannot be held accountable or taken to court
o Owner becomes liable
- Capacity to hold office
- Categories:
o Capacity to act
o Capacity to litigate
o Accountability
Capacity to act:
- Capacity to participate in legal intercourse – to perform valid juristic
acts
- Juristic act: human act to which law attaches at least some of consequences
desired by party performing act
- No capacity to act:
o Child under the age of 7 (infans) and people with psychological
disabilities have no capacity to act and needs someone to act on their
behalf
- Limited capacity to act:
o Minors between ages of 7 and 18 can perform some juristic acts but for
others they need permission of guardian or parent
- Full capacity to act:
o People who can perform all juristic acts themselves: usually people
over age of 18 (majors) without any psychological disabilities
, Capacity to litigate:
- Capacity to be party to court case in civil claim
- Capacity to act as plaintiff or defendant, applicant, or respondent in civil
proceedings
Accountability:
- Ability to distinguish between right and wrong and act in accordance
with such distinction
- May be held liable for unlawful acts
o If an individual is unable to distinguish between right and wrong, they
cannot be held accountable for unlawful acts
o Doli et culpae incapax: those who cannot be held liable for unlawful
acts
Justice:
- Can be brought as the idea that people should be treated fairly, reasonably
and properly by the law and those who enforce it
o To ensure that people are protected from harm and should harm occur,
there will be action taken to rectify the imbalance
o Both parties to a dispute are to receive the morally correct and just
consequence for their actions
- Legal structure that is designed to judge who should receive the benefit or
burden when the law is applied to an individual’s factual circumstances
Constitution of the Republic of South Africa, 1996:
- S2: Supremacy Clause:
o Constitution is the supreme law of the republic; law or conduct
inconsistent with it is invalid, and the obligations imposed by it must be
fulfilled
- S9: Equality Clause:
o Everyone is equal before the law and has the right to equal protection
and benefit of the law
- S28: Children’s Rights:
o (3): child means person under 18 years
o (2): best interests of the child
o (1)(b): right to family care, parental care or appropriate alternative care
when removed from family environment
- S36: Limitation Clause:
o Rights in Bill of Rights may be limited in terms of the law of general
application to the extent that the limitation is reasonable and justifiable
is an open democratic society based on human dignity, equality and
freedom, taking into account all relevant factors
Topic 1: Introduction to the Law of Persons and Terminology:
Definition of law of persons:
- Part of the objective law that regulates the coming into existence private law
status and coming to end of a natural person as a legal subject
Introduction:
- Law of persons is a subdivision of the objective law (national law)
o Regarded as body of legal rules that applies as a system in SA law
- Divided into:
o Public law: regulates relationship between individuals and the state
o Private law: harmonises the relationship between persons to ensure
society remains orderly and peaceful
Ensure property is respected, contracts are adhered to
o Subjective law is the manner in which the private law regulates the
relationship between persons through concepts of subjective rights
Legal Subject:
- Anyone or anything that can be the bearer of rights, duties, and
capacities
Natural persons:
- Humans, legal subjectivity begins at birth and ends at death
- Roman Dutch Law – slaves & monstra excluded
Juristic persons:
- Group or association of persons who operate apart from their members
(natural / juristic)
- Can have rights and duties but do not possess all rights and capacities of
legal subjects
- Existence independent of members
o The University of Stellenbosch can enter into a contract with SIMUNA,
a company through which they purchase laboratory equipment every
five years. The burden to pay for the goods provided for in the contract
falls onto the university board and not the individual members such as
lecture staff or students. Thus, they operate independently from their
members.
- SA Law:
o Societies incorporated in terms of general enabling act (company)
, o Societies created and recognised in separate legislation (university or
school)
o Societies that meet common law requirements (church or political
party)
Subjective Rights:
- Network of legal relationships that exist between legal subjects as well as
legal subjects and legal objects
- Closely related to legal powers and how they may be exercised in relation to
legal objects and legal subjects
- Different rights and duties which apply between persons
Legal Objects:
- Do not have legal capacity
- Four categories:
o Things
o Performance
o Intellectual property
o Personality property
- Categories give rise to different subjective rights
- The objective law determines the content and limits of every subjective right
o Animals do not have legal capacity and are regarded as legal objects
Do have semblance of rights but only in sense of being
protected against ill treatment and cruelty
Animal Protection Act protects animals against maltreatment
o As animals do not possess legal capacity, they cannot be held liable for
their actions – owners of animals can be held liable for damages or
harm caused
Correlation between subjective rights and the legal object to which it relates:
Legal Object Subjective Right Example
Things Real right Ownership
Performance Personal right (right to Right to claim payment
performance)
Intellectual property Intellectual property right Copyright
Personality property Personality right Right to a good reputation
,Status:
- Sum total of legal subject’s juridical capacities (legal capacity)
- Refers to standing in terms of the law as well as a person’s role and function
in legal intercourse
- Factors affecting nature and extent of person’s capacities
o Age
o Mental incapacity
o Prodigality
- Every legal subject has legal subjectivity and can participate in legal
intercourse however status affects manner and extent of participation
Legal capacity:
- The capacity to have rights and duties and thus the capacity to be a
legal subject
o Legal subjectivity
o Animals seen as legal objects in the sense that should a person suffer
personal, or property damages caused by an animal, the animal itself
cannot be held accountable or taken to court
o Owner becomes liable
- Capacity to hold office
- Categories:
o Capacity to act
o Capacity to litigate
o Accountability
Capacity to act:
- Capacity to participate in legal intercourse – to perform valid juristic
acts
- Juristic act: human act to which law attaches at least some of consequences
desired by party performing act
- No capacity to act:
o Child under the age of 7 (infans) and people with psychological
disabilities have no capacity to act and needs someone to act on their
behalf
- Limited capacity to act:
o Minors between ages of 7 and 18 can perform some juristic acts but for
others they need permission of guardian or parent
- Full capacity to act:
o People who can perform all juristic acts themselves: usually people
over age of 18 (majors) without any psychological disabilities
, Capacity to litigate:
- Capacity to be party to court case in civil claim
- Capacity to act as plaintiff or defendant, applicant, or respondent in civil
proceedings
Accountability:
- Ability to distinguish between right and wrong and act in accordance
with such distinction
- May be held liable for unlawful acts
o If an individual is unable to distinguish between right and wrong, they
cannot be held accountable for unlawful acts
o Doli et culpae incapax: those who cannot be held liable for unlawful
acts
Justice:
- Can be brought as the idea that people should be treated fairly, reasonably
and properly by the law and those who enforce it
o To ensure that people are protected from harm and should harm occur,
there will be action taken to rectify the imbalance
o Both parties to a dispute are to receive the morally correct and just
consequence for their actions
- Legal structure that is designed to judge who should receive the benefit or
burden when the law is applied to an individual’s factual circumstances
Constitution of the Republic of South Africa, 1996:
- S2: Supremacy Clause:
o Constitution is the supreme law of the republic; law or conduct
inconsistent with it is invalid, and the obligations imposed by it must be
fulfilled
- S9: Equality Clause:
o Everyone is equal before the law and has the right to equal protection
and benefit of the law
- S28: Children’s Rights:
o (3): child means person under 18 years
o (2): best interests of the child
o (1)(b): right to family care, parental care or appropriate alternative care
when removed from family environment
- S36: Limitation Clause:
o Rights in Bill of Rights may be limited in terms of the law of general
application to the extent that the limitation is reasonable and justifiable
is an open democratic society based on human dignity, equality and
freedom, taking into account all relevant factors
