PVL1501 Notes
Study unit 2
Definition of the law of persons:
Part of private law, which determines which beings are legal subjects.
When legal personality begins and ends
What legal status involves
What effect various factors have on persons legal status
2 Classes of legal subjects in SA Law:
Natural person
Juristic person
Define term Natural person:
All human beings are recognised as legal subjects
Every human being can have rights, duties, and capabilities although
content of these rights may vary on person’s mental capacity and age.
To distinguish them from other legal subjects all humans are natural
persons.
Define Juristic person:
o These are certain associations of natural persons to which legal
personality is granted.
o Such associations to which legal personality is granted is called juristic
person.
Entities that are recognised as a juristic person:
Associations incorporated in terms of general enabling Legislation
(Banks)
Associations especially created & recognised as juristic persons in
Separate legislation (Universities)
Associations that apply with common law requirements for recognition of
the legal personality of a juristic person. Must have continuous existence
irrespective of the fact that members may vary.
, Part 2
Study unit 4
Requirements for the Beginning of a legal personality:
1. Birth must be fully completed child must be completely separated from
mother
2. Child must live after separation even for short period.
Discuss the provisions of Births and Death registrations Act 51 of
1992 that deals with registration on Births:
Director General of home Affairs must be notified of the birth of every child
who was born alive.
Notice must be given by child’s parents within 30 days of child’s birth.
If both parents are deceased notice must be given by next of kin or legal
guardian.
If child already reached age of 18 he/she may personally give notice.
Notice of birth must be accompanied by documents prescribed by act.
No birth may be registered unless a forename and a surname has been
assigned to child.
, Study Unit 5
Define Nasciturus Fiction:
A nasciturus is regarded as having been born at the time of his conception
whenever it is to his advantage.
Requirements for fiction to come into operation:
Must have been conceived at time of benefit accrued to him.
Nasciturus must be subsequently born alive.
ID interest in respect fiction has been applied in our law and
explain how the fiction is applied with each interest:
1. Succession
2. Maintenance after birth
3. Dependants action for loss of support
4. Pre-natal injury
5. Guardianship and care
6. Termination of pregnancy
7. Sterilisation
Succession (Ex parte Boedel Steenkamp):
Intestate succession:
If person dies w/o leaving valid will – estate is handed over in terms of law
of intestate succession – under these terms – person only inherits if alive at
time estate “falls open” (delatio) which takes place moment deceased dies.
NF applied to postpone distribution of estates until certain if live person
born or not.
If born alive – inherits as if already born at time person died. If not born alive
– does not obtain rights & not considered when estate is divided.
, Testate Succession:
Person dies and leaves valid will – effect given to provisions of will.
If testators intention re unborn child should inherit is clear – intention is carried
out. If unclear – rules of law of succession are applied.
EG where intention is clear: Leave property specifically to A,B & C while D
has been conceived – not yet born – D won’t inherit. Only beneficiaries
specifically in will inherit. Leaves property to children / grandchildren “born or
still to be born” – any children born after will inherit – whether / not conceived
at time of death.
EG where intention is unclear: Does not appoint beneficiaries by name – but
by class. Child in that class conceived at time of death born after death
inherits.
Maintenance after Birth:
Case name: Shieds v Shields
Parents of unborn were getting divorced and agreed father would not have to
provide maintenance after birth of child.
Wanted this in divorce order – court held mother can’t waive unborn’s right to
claim maintenance & that the agreement contradicted good faith & legal
convictions of the community.
It was thus never made an order of the court!
Father also can’t waive unborn’s right to claim maintenance from mother after
birth.
When a pregnant woman divorces father of child – court can provide for
child’s maintenance in divorce order – to avoid need for legal proceedings abt
maintenance after child is born.
This is NOT A TRUE APPLICATION OF NF – rather it’s merely a common
sense approach based on expediency (something advantages / convenient)
-if it were child would be deemed to have been born at time of her conception
and entitled to maintenance from that date – and equity clause of BOR would
be breached because NF would be entitled to maintenance for longer periodic
than a child whose parents’ divorce each other on day of her actual birth.
Absurd to award maintenance to child from date of conception as unborn child
gets all sustenance it needs from mother’s body.
Study unit 2
Definition of the law of persons:
Part of private law, which determines which beings are legal subjects.
When legal personality begins and ends
What legal status involves
What effect various factors have on persons legal status
2 Classes of legal subjects in SA Law:
Natural person
Juristic person
Define term Natural person:
All human beings are recognised as legal subjects
Every human being can have rights, duties, and capabilities although
content of these rights may vary on person’s mental capacity and age.
To distinguish them from other legal subjects all humans are natural
persons.
Define Juristic person:
o These are certain associations of natural persons to which legal
personality is granted.
o Such associations to which legal personality is granted is called juristic
person.
Entities that are recognised as a juristic person:
Associations incorporated in terms of general enabling Legislation
(Banks)
Associations especially created & recognised as juristic persons in
Separate legislation (Universities)
Associations that apply with common law requirements for recognition of
the legal personality of a juristic person. Must have continuous existence
irrespective of the fact that members may vary.
, Part 2
Study unit 4
Requirements for the Beginning of a legal personality:
1. Birth must be fully completed child must be completely separated from
mother
2. Child must live after separation even for short period.
Discuss the provisions of Births and Death registrations Act 51 of
1992 that deals with registration on Births:
Director General of home Affairs must be notified of the birth of every child
who was born alive.
Notice must be given by child’s parents within 30 days of child’s birth.
If both parents are deceased notice must be given by next of kin or legal
guardian.
If child already reached age of 18 he/she may personally give notice.
Notice of birth must be accompanied by documents prescribed by act.
No birth may be registered unless a forename and a surname has been
assigned to child.
, Study Unit 5
Define Nasciturus Fiction:
A nasciturus is regarded as having been born at the time of his conception
whenever it is to his advantage.
Requirements for fiction to come into operation:
Must have been conceived at time of benefit accrued to him.
Nasciturus must be subsequently born alive.
ID interest in respect fiction has been applied in our law and
explain how the fiction is applied with each interest:
1. Succession
2. Maintenance after birth
3. Dependants action for loss of support
4. Pre-natal injury
5. Guardianship and care
6. Termination of pregnancy
7. Sterilisation
Succession (Ex parte Boedel Steenkamp):
Intestate succession:
If person dies w/o leaving valid will – estate is handed over in terms of law
of intestate succession – under these terms – person only inherits if alive at
time estate “falls open” (delatio) which takes place moment deceased dies.
NF applied to postpone distribution of estates until certain if live person
born or not.
If born alive – inherits as if already born at time person died. If not born alive
– does not obtain rights & not considered when estate is divided.
, Testate Succession:
Person dies and leaves valid will – effect given to provisions of will.
If testators intention re unborn child should inherit is clear – intention is carried
out. If unclear – rules of law of succession are applied.
EG where intention is clear: Leave property specifically to A,B & C while D
has been conceived – not yet born – D won’t inherit. Only beneficiaries
specifically in will inherit. Leaves property to children / grandchildren “born or
still to be born” – any children born after will inherit – whether / not conceived
at time of death.
EG where intention is unclear: Does not appoint beneficiaries by name – but
by class. Child in that class conceived at time of death born after death
inherits.
Maintenance after Birth:
Case name: Shieds v Shields
Parents of unborn were getting divorced and agreed father would not have to
provide maintenance after birth of child.
Wanted this in divorce order – court held mother can’t waive unborn’s right to
claim maintenance & that the agreement contradicted good faith & legal
convictions of the community.
It was thus never made an order of the court!
Father also can’t waive unborn’s right to claim maintenance from mother after
birth.
When a pregnant woman divorces father of child – court can provide for
child’s maintenance in divorce order – to avoid need for legal proceedings abt
maintenance after child is born.
This is NOT A TRUE APPLICATION OF NF – rather it’s merely a common
sense approach based on expediency (something advantages / convenient)
-if it were child would be deemed to have been born at time of her conception
and entitled to maintenance from that date – and equity clause of BOR would
be breached because NF would be entitled to maintenance for longer periodic
than a child whose parents’ divorce each other on day of her actual birth.
Absurd to award maintenance to child from date of conception as unborn child
gets all sustenance it needs from mother’s body.
