Introduction to Law
2023
Rights in Private Law Relationships
The purpose of this document is to guide your learning on rights and duties in private law
relationships
Prescribed readings:
Kleyn, Viljoen, Zitzke and Madi Beginner’s Guide for Law Students 5th ed (2018) chapter 7.
Brief discussion
Private law is that part of our law that regulates relationships between persons (legal
subjects) and the rights of those legal subjects in respect of legal objects (for example
things).
Legal subjects may hold/bear of rights in respect of legal objects. Natural persons (human
beings) and juristic persons (a group or association of natural person that, through meeting
the requirements set in law (for example, in order to register a company one has to meet the
requirements of the Companies Act), establishes legal subjectivity separate to that of the
individuals that make up the juristic person) may hold rights in respect of legal objects that
are enforceable against other legal subjects.
Who or what is a natural person?
Who or what is a juristic person? Give examples of juristic persons.
Legal subjects participate in activities with legal consequences, and in order to do so, they
have what is called legal capacity or legal subjectivity. There are different legal capacities /
aspects of legal subjectivity and for some legal subjects their capacities are limited.
Capacity to act / capacity to perform juristic acts
A child over the age of 7 but younger than 18, for example, has limited capacity to act and
may not incur liabilities without assistance of their parents.
Outline who has full, limited and no capacity to conclude juristic acts.
1
, What is the consequence if a party concludes a juristic act but lacks capacity to do so? See
Uys v Uys 1953 (2) SA 1 (E).
[
Does a 9-year-old child have the capacity to make a will? Explain.
A and B are respectively 11 and 9 years old. They agree that A would buy B’s bicycle for
R 50-00. Is the contract enforceable?
Capacity to participate in legal proceedings
This capacity concerns whether a person can institute legal proceedings against another in
own name and be cited as defendant or respondent by another. It is closely related to
capacity to act. So for example, must minors be assisted by their parents in instituting civil
proceedings or in defending civil proceedings instituted against them.
Capacity to be held liable for civil wrongs
This involves the capacity to be held accountable for one’s wrongful (unlawful) acts.
Accountability depends on the legal subject’s ability to distinguish between right and wrong
and direct one’s behaviour accordingly.
Legal subjects whose mental health impairs their ability to distinguish between right and
wrong and they are doli et culpae incapax (incapable of doing wrong and not accountable).
It must be borne in mind that all adults (over the age of 18) are regarded have the capacity
to be held accountable. Thus where an adult legal subject is alleged to be incapable of
doing wrong because of mental illness, that must be proven. At common law children under
the age of 7 are infantes (infants) are irrebuttably presumed to lack the capacity to be held
accountable. Between the ages of 7 and 14, children are rebuttably presumed to lack the
capacity to be held accountable. Above the age of 14 children are rebuttably presumed to
have the capacity to be held accountable.
Make sure that you understand what a legal presumption is and what is means when we say
that a presumption can be rebutted, or when we say that a presumption is irrebuttable. Take
the example of a rebuttable presumption of the capacity to be held accountable: a child
above 14 but under 18 years old, is assumed to have the capacity to distinguish between
right and wrong and act in accordance with that insight. However, evidence may be
presented to disprove (invalidate, deny) that presumption. Thus unless evidence is
presented to show that a 16 year-old young person is incapable of being held accountable,
the law assumes that he is accountable. An irrebuttable presumption is the opposite of a
rebuttable presumption, ie no evidence will change the assumption in law that is supported
by an irrebuttable presumption.
C causes damage to D’s car by scratching the paintwork thereof with a rock. D established
that a paint job on the three panels that were damaged will cost R 15 000-00.
C is 6 years old. Can C be held accountable? Explain.
C is 9 years old. Can D hold C accountable for the damage? Explain.
C is 16 years old. Does he have the capacity to be held accountable?
2
2023
Rights in Private Law Relationships
The purpose of this document is to guide your learning on rights and duties in private law
relationships
Prescribed readings:
Kleyn, Viljoen, Zitzke and Madi Beginner’s Guide for Law Students 5th ed (2018) chapter 7.
Brief discussion
Private law is that part of our law that regulates relationships between persons (legal
subjects) and the rights of those legal subjects in respect of legal objects (for example
things).
Legal subjects may hold/bear of rights in respect of legal objects. Natural persons (human
beings) and juristic persons (a group or association of natural person that, through meeting
the requirements set in law (for example, in order to register a company one has to meet the
requirements of the Companies Act), establishes legal subjectivity separate to that of the
individuals that make up the juristic person) may hold rights in respect of legal objects that
are enforceable against other legal subjects.
Who or what is a natural person?
Who or what is a juristic person? Give examples of juristic persons.
Legal subjects participate in activities with legal consequences, and in order to do so, they
have what is called legal capacity or legal subjectivity. There are different legal capacities /
aspects of legal subjectivity and for some legal subjects their capacities are limited.
Capacity to act / capacity to perform juristic acts
A child over the age of 7 but younger than 18, for example, has limited capacity to act and
may not incur liabilities without assistance of their parents.
Outline who has full, limited and no capacity to conclude juristic acts.
1
, What is the consequence if a party concludes a juristic act but lacks capacity to do so? See
Uys v Uys 1953 (2) SA 1 (E).
[
Does a 9-year-old child have the capacity to make a will? Explain.
A and B are respectively 11 and 9 years old. They agree that A would buy B’s bicycle for
R 50-00. Is the contract enforceable?
Capacity to participate in legal proceedings
This capacity concerns whether a person can institute legal proceedings against another in
own name and be cited as defendant or respondent by another. It is closely related to
capacity to act. So for example, must minors be assisted by their parents in instituting civil
proceedings or in defending civil proceedings instituted against them.
Capacity to be held liable for civil wrongs
This involves the capacity to be held accountable for one’s wrongful (unlawful) acts.
Accountability depends on the legal subject’s ability to distinguish between right and wrong
and direct one’s behaviour accordingly.
Legal subjects whose mental health impairs their ability to distinguish between right and
wrong and they are doli et culpae incapax (incapable of doing wrong and not accountable).
It must be borne in mind that all adults (over the age of 18) are regarded have the capacity
to be held accountable. Thus where an adult legal subject is alleged to be incapable of
doing wrong because of mental illness, that must be proven. At common law children under
the age of 7 are infantes (infants) are irrebuttably presumed to lack the capacity to be held
accountable. Between the ages of 7 and 14, children are rebuttably presumed to lack the
capacity to be held accountable. Above the age of 14 children are rebuttably presumed to
have the capacity to be held accountable.
Make sure that you understand what a legal presumption is and what is means when we say
that a presumption can be rebutted, or when we say that a presumption is irrebuttable. Take
the example of a rebuttable presumption of the capacity to be held accountable: a child
above 14 but under 18 years old, is assumed to have the capacity to distinguish between
right and wrong and act in accordance with that insight. However, evidence may be
presented to disprove (invalidate, deny) that presumption. Thus unless evidence is
presented to show that a 16 year-old young person is incapable of being held accountable,
the law assumes that he is accountable. An irrebuttable presumption is the opposite of a
rebuttable presumption, ie no evidence will change the assumption in law that is supported
by an irrebuttable presumption.
C causes damage to D’s car by scratching the paintwork thereof with a rock. D established
that a paint job on the three panels that were damaged will cost R 15 000-00.
C is 6 years old. Can C be held accountable? Explain.
C is 9 years old. Can D hold C accountable for the damage? Explain.
C is 16 years old. Does he have the capacity to be held accountable?
2
