lOMoARcPSD|4339232
PVL1501 Notes and longer questions and
answers
Law of Persons (University of South Africa)
, lOMoARcPSD|4339232
1 Introduction
1.1 Law of persons
Law of persons determines:
1. which beings are legal subjects
2. how a legal subject originates and comes to an end
3. what legal status involves
4. what effect various factors have on a person's legal status
Confined to treatment of the natural person only: not juristic persons.
Deals virtually exclusively with the status of natural persons in the field of private law.
1.2 Different kinds of legal subjects
Legal personality is bestowed only on legal subjects.
In SA we have:
1. The natural person
2. The juristic person
1.2.1 Factors determining recognition as a legal subjects
Legal personality is conferred only to entities the law sees fit to recognize as
legal subjects.
The following factors determine what is recognized as a legal entity within a country:
1. Legal norms and views of a particular community
2. The needs of commercial traffic
3. Historic and cultural background of a specific nation
Thus, as these factors change, what is recognized as a legal entity is subject to change.
1.2.2 Natural Person
All human beings, irrespective of age, mental capacity or intellectual capacity,
are recognized as legal subjects: known as “natural persons”
Thus: every human can have rights, duties and capacities based on mental capacity &
age.
1.2.2.1 Exceptions before modern law
Slavery was not abolished in the Cape until 1834: until then slaves in SA were legal
objects who could not have rights, duties or capacities.
Monstra: babies born so deformed that they lacked the human form and human mind
were not legal subjects under Roman & Roman Dutch law: today any abomination is
regarded as a legal subject.
1.2.3 Juristic person
Legal personality is also bestowed on certain associations of natural persons.
The association itself is granted legal personality and is called a juristic person.
1.2.3.1 Characteristics of a juristic person
1. Enjoys a legal existence independent from its members or the people who created it
2. Must always act through its functionaries, i.e. directors of a company
3. When functionaries act on behalf of the juristic person, it juristic person acquires rights,
duties and capacities, i.e. be bind itself to a contract, be owner of things, etc.
, lOMoARcPSD|4339232
1.2.3.2 What is recognized as juristic persons?
1. Associations incorporated in terms of general enabling legislation, i.e.
companies, banks, close corporations and co-operatives
2. Associations especially created and recognized as juristic persons in separate
legislation, i.e. universities, semi-state organizations, public corporations
(Eskom, SABC)
3. Associations which comply with the common-law requirements for the
recognition of legal personality of a juristic person, i.e. churches, political parties,
trade unions: known as universitates: Must meet following requirements:
a. Association must have a continued existence irrespective of the fact that
its members may vary
b. Must have rights, duties and capacities
c. Its object must not be the acquisition of gain
Trusts and partnerships are not recognized.
2 Beginning of legal personality
Legal personality begins at birth: foetus is not a legal subject.
Requirements for the beginning of legal personality:
1. Birth must be fully completed: complete separation between mother &
foetus; umbilical cord does not have to be severed
2. Child must live after the separation: stillborn foetus does not acquire
legal personality.
Viability (child can live independently of mother) is not a requirement for commencement of
legal personality in South Africa due to viability being a vague concept that could lead to
impossible problems of evidence (how to determine viability, length of life before viable, etc.).
2.1 Determining whether a child was alive
1. Purposes of criminal proceedings: Section 239(1) of the Criminal Procedure Act 51 of
1977: if the child has breathed, it was alive; child did not have to have independent
circulation; child does not have to be entirely separated from its mother.
2. Courts: rely on medical evidence: normally whether child breathed or not; any
other medical evidence by which life may be proved should be acceptable.
2.2 Registration of births
2.2.1 Births and Deaths Registration Act 51 of 1992
1. The Director General of Home Affairs must be notified of the birth of every child
that was born alive within 30 days of the child’s birth.
2. Duty rests on the parents to give notice: if neither can, notice must be given by:
d. The person who has charge of the child
e. The person the parents requests to do so
1. Anyone may apply to the Director General to assume a different surname
2. If a child’s surname has changed, the birth register may be changed to reflect
the change.
2.2.1.1 Naming of legitimate children under the act
1. Child must have a first name and a surname
2. Notice of legitimate child’s birth: must be given under the surname of either parent or
both surnames joined together: double-barrelled.
3. Children born as a consequence of artificial fertilisation of a woman who is a
partner in a same-sex life partnership are also legitimate due to J v Director
General, Department of Home Affairs: (2) thus counts for them too
, lOMoARcPSD|4339232
2.2.1.2 Naming of extra-marital children under the act
1. An extramarital child is registered under surname of mother unless parents
jointly request that the father’s surname be used
2. If an extramarital child is registered under father’s name, the father must
acknowledge paternity in presence of person to whom the notice of birth is given
and enter his particulars on the notice of birth
3. A father who wants to acknowledge paternity of an extramarital child and enter his
particulars on the notice of birth after the birth has already been registered, may
do so with the mother’s consent
4. If the mother withholds consent, the father may apply to the high court for a declaratory
order confirming his paternity and dispensing with the mother’s consent
5. If an extramarital child is registered under her father’s surname, the
surname may only be changed with the father’s written consent.
6. No provision is made in the act for double-barrelled surnames of
extramarital children.
7. If the parents of an extramarital child marry after the birth has been registered,
the register can be altered as if the parents were married at the time of birth.
2.2.1.3 Definition of extra-marital/legitimate
1. “Child born out of wedlock” (extra-marital) does not include children whose
parents were married at the time of conception or at any time thereafter before
the completion of the child’s birth.
2. Concept of “marriage” has been expanded to include customary marriages
and marriages concluded or solemnized according to the tenets of any religion: thus
child = legitimate.
3. Religious marriages in (2) have not been afforded full recognition in our law, thus
child is only considered legitimate for the purposes of registration of birth and not
for all purposes.
3 Interests of the unborn child (nasciturus)
3.1 Nasciturus fiction
Law protects the potential interests of the nasciturus by employing the fiction that the foetus
is regarded as having been born at the time of conception when it is to his advantage.
In such a case, the legal position is kept in abeyance (interests are kept aside) until birth
of the child or until certainty has been reached that foetus will not become legal subject
(abortion, miscarriage, etc.). If foetus does become a legal subject, he receives the rights that
have been kept in abeyance for him.
Unborn foetus cannot have rights, duties or capacities.
3.1.1 Requirements when employing the fiction
1. Child must have been conceived at the time that the benefit would have accrued
to him
2. Child must subsequently be born alive
3.1.2 Limitations of the fiction
1. A third person may benefit from the application of the fiction if such a benefit is a
natural consequence of the application of the fiction in favour of the nasciturus,
but the fiction may not be employed if only a third person will benefit, thus:
f. If inheriting nasciturus dies shortly after birth, fiction will not be employed
as only a third party benefits and not the child.
g. If nasciturus inherits an estate large enough to support it, the parents will
not be liable for its maintenance: thus parents and nasciturus benefit.
1. Fiction cannot be employed to the detriment of the nasciturus
PVL1501 Notes and longer questions and
answers
Law of Persons (University of South Africa)
, lOMoARcPSD|4339232
1 Introduction
1.1 Law of persons
Law of persons determines:
1. which beings are legal subjects
2. how a legal subject originates and comes to an end
3. what legal status involves
4. what effect various factors have on a person's legal status
Confined to treatment of the natural person only: not juristic persons.
Deals virtually exclusively with the status of natural persons in the field of private law.
1.2 Different kinds of legal subjects
Legal personality is bestowed only on legal subjects.
In SA we have:
1. The natural person
2. The juristic person
1.2.1 Factors determining recognition as a legal subjects
Legal personality is conferred only to entities the law sees fit to recognize as
legal subjects.
The following factors determine what is recognized as a legal entity within a country:
1. Legal norms and views of a particular community
2. The needs of commercial traffic
3. Historic and cultural background of a specific nation
Thus, as these factors change, what is recognized as a legal entity is subject to change.
1.2.2 Natural Person
All human beings, irrespective of age, mental capacity or intellectual capacity,
are recognized as legal subjects: known as “natural persons”
Thus: every human can have rights, duties and capacities based on mental capacity &
age.
1.2.2.1 Exceptions before modern law
Slavery was not abolished in the Cape until 1834: until then slaves in SA were legal
objects who could not have rights, duties or capacities.
Monstra: babies born so deformed that they lacked the human form and human mind
were not legal subjects under Roman & Roman Dutch law: today any abomination is
regarded as a legal subject.
1.2.3 Juristic person
Legal personality is also bestowed on certain associations of natural persons.
The association itself is granted legal personality and is called a juristic person.
1.2.3.1 Characteristics of a juristic person
1. Enjoys a legal existence independent from its members or the people who created it
2. Must always act through its functionaries, i.e. directors of a company
3. When functionaries act on behalf of the juristic person, it juristic person acquires rights,
duties and capacities, i.e. be bind itself to a contract, be owner of things, etc.
, lOMoARcPSD|4339232
1.2.3.2 What is recognized as juristic persons?
1. Associations incorporated in terms of general enabling legislation, i.e.
companies, banks, close corporations and co-operatives
2. Associations especially created and recognized as juristic persons in separate
legislation, i.e. universities, semi-state organizations, public corporations
(Eskom, SABC)
3. Associations which comply with the common-law requirements for the
recognition of legal personality of a juristic person, i.e. churches, political parties,
trade unions: known as universitates: Must meet following requirements:
a. Association must have a continued existence irrespective of the fact that
its members may vary
b. Must have rights, duties and capacities
c. Its object must not be the acquisition of gain
Trusts and partnerships are not recognized.
2 Beginning of legal personality
Legal personality begins at birth: foetus is not a legal subject.
Requirements for the beginning of legal personality:
1. Birth must be fully completed: complete separation between mother &
foetus; umbilical cord does not have to be severed
2. Child must live after the separation: stillborn foetus does not acquire
legal personality.
Viability (child can live independently of mother) is not a requirement for commencement of
legal personality in South Africa due to viability being a vague concept that could lead to
impossible problems of evidence (how to determine viability, length of life before viable, etc.).
2.1 Determining whether a child was alive
1. Purposes of criminal proceedings: Section 239(1) of the Criminal Procedure Act 51 of
1977: if the child has breathed, it was alive; child did not have to have independent
circulation; child does not have to be entirely separated from its mother.
2. Courts: rely on medical evidence: normally whether child breathed or not; any
other medical evidence by which life may be proved should be acceptable.
2.2 Registration of births
2.2.1 Births and Deaths Registration Act 51 of 1992
1. The Director General of Home Affairs must be notified of the birth of every child
that was born alive within 30 days of the child’s birth.
2. Duty rests on the parents to give notice: if neither can, notice must be given by:
d. The person who has charge of the child
e. The person the parents requests to do so
1. Anyone may apply to the Director General to assume a different surname
2. If a child’s surname has changed, the birth register may be changed to reflect
the change.
2.2.1.1 Naming of legitimate children under the act
1. Child must have a first name and a surname
2. Notice of legitimate child’s birth: must be given under the surname of either parent or
both surnames joined together: double-barrelled.
3. Children born as a consequence of artificial fertilisation of a woman who is a
partner in a same-sex life partnership are also legitimate due to J v Director
General, Department of Home Affairs: (2) thus counts for them too
, lOMoARcPSD|4339232
2.2.1.2 Naming of extra-marital children under the act
1. An extramarital child is registered under surname of mother unless parents
jointly request that the father’s surname be used
2. If an extramarital child is registered under father’s name, the father must
acknowledge paternity in presence of person to whom the notice of birth is given
and enter his particulars on the notice of birth
3. A father who wants to acknowledge paternity of an extramarital child and enter his
particulars on the notice of birth after the birth has already been registered, may
do so with the mother’s consent
4. If the mother withholds consent, the father may apply to the high court for a declaratory
order confirming his paternity and dispensing with the mother’s consent
5. If an extramarital child is registered under her father’s surname, the
surname may only be changed with the father’s written consent.
6. No provision is made in the act for double-barrelled surnames of
extramarital children.
7. If the parents of an extramarital child marry after the birth has been registered,
the register can be altered as if the parents were married at the time of birth.
2.2.1.3 Definition of extra-marital/legitimate
1. “Child born out of wedlock” (extra-marital) does not include children whose
parents were married at the time of conception or at any time thereafter before
the completion of the child’s birth.
2. Concept of “marriage” has been expanded to include customary marriages
and marriages concluded or solemnized according to the tenets of any religion: thus
child = legitimate.
3. Religious marriages in (2) have not been afforded full recognition in our law, thus
child is only considered legitimate for the purposes of registration of birth and not
for all purposes.
3 Interests of the unborn child (nasciturus)
3.1 Nasciturus fiction
Law protects the potential interests of the nasciturus by employing the fiction that the foetus
is regarded as having been born at the time of conception when it is to his advantage.
In such a case, the legal position is kept in abeyance (interests are kept aside) until birth
of the child or until certainty has been reached that foetus will not become legal subject
(abortion, miscarriage, etc.). If foetus does become a legal subject, he receives the rights that
have been kept in abeyance for him.
Unborn foetus cannot have rights, duties or capacities.
3.1.1 Requirements when employing the fiction
1. Child must have been conceived at the time that the benefit would have accrued
to him
2. Child must subsequently be born alive
3.1.2 Limitations of the fiction
1. A third person may benefit from the application of the fiction if such a benefit is a
natural consequence of the application of the fiction in favour of the nasciturus,
but the fiction may not be employed if only a third person will benefit, thus:
f. If inheriting nasciturus dies shortly after birth, fiction will not be employed
as only a third party benefits and not the child.
g. If nasciturus inherits an estate large enough to support it, the parents will
not be liable for its maintenance: thus parents and nasciturus benefit.
1. Fiction cannot be employed to the detriment of the nasciturus
