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.
, 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.
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.
, 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.
