Law of persons 144
Dr Debbie Horsten
(021) 808 3183
Assistant
Ms Jamie Day
Bonny-Lyle Young
26079232
,Bonny-Lyle Young // 26079232 // Law of Persons 144
Introductory lecture
Tutorials will be in person only
Official slides will be preliminary slides
Final slides will be uploaded at the end of the work’s section
Course overview:
1. Introduction & terminology
2. The beginning of legal personality
3. The end of legal personality
Classes:
Monday 11:00
Wednesday 14:00
Tuts start in August
Tuesday 11:00
SARAH BRAITHWAITE Assessment dates:
14 September: A1
15 November: 1st exam
(A2)
3 December: 2nd exam
(A3)
Continuous: tut
assessments
,Bonny-Lyle Young // 26079232 // Law of Persons 144
STUDY UNIT 3: THE TERMINATION OF LEGAL
PERSONALITY / LEGAL SUBJECTIVITY
At the time of death the legal subjectivity of a person is terminated and certain other legal
consequences ensue. In the course of this study unit you are informed of the different ways in
which death can, for purposes of the law, be proved. These methods presume that there is a
body. One must, however, bear in mind that there may be circumstances that indicate that a
person is dead although a body was never discovered. The legal principles that would apply
in these cases are also studied. Lastly, attention is paid to the legal approach in South African
law in cases where a number of people die in the same accident or disaster.
After completion of the course students should be able to:
Explain the different methods that may be used to prove death.
Explain why the presumption of death order plays such an important role in law.
Explain the difference in procedure with regard to a presumption of death order in
terms of the common law and a presumption of death order in terms of legislation.
Explain, with reference to case law, which factors a court would consider in deciding
whether to grant a presumption of death order in terms of the common law.
Set out the legal position with regard to commorientes.
Apply the above to given factual scenarios
OUTLINE
1. Death
2. Presumption of death
3. Commorientes
STUDY MATERIAL
o The Law of Persons and the Family 131-158
o Ex parte Pieters 1993 (3) SA 379 (D)
o Ex parte Stoter 1996 (4) SA 1299 (E)
o Ss 1 and 2 of the Dissolution of Marriages on Presumption of Death Act 23 of 1979
SS 5(1), 16 & 18 of Inquests Act 58 of 1959
Civil Aviation Act 13 of 2009 (chapter 4)
,Bonny-Lyle Young // 26079232 // Law of Persons 144
Questions:
Explain the ways in which the death of a natural person can be proven
Give an example of a situation where direct evidence can be used to prove the death
of a natural person.
Name five legally relevant consequences of death.
True or False: “A common law presumption of death order can only be obtained if the
person it relates to has been missing for more than 7 years”.
What factors would a court take into account when considering whether a
presumption of death order should be granted?
What is the effect of a common law presumption of death order?
List the differences between a common law presumption of death order on the one
hand and a finding in terms of the Inquests Act that a missing person is presumably
dead. (Consider the procedure and effect of such orders).
Is there any alternative remedy if a court is not prepared to grant a presumption of
death order?
Can you advise a client who states that her husband disappeared 10 weeks ago when
he went fishing near Gordon’s Bay? May she marry someone else?
What is meant by “commorientes”
Are there any presumptions in the modern South African law regarding the order in
which commorientes died? How would a court approach such a situation?
Explain the difference between biological death and the ending of legal personality
Explain the link between the ending of legal personality and death
Discuss the lag construct of “presumption of death” and it’s effects in both common
& statute law
Discuss the consequences of the ending of legal personality
Describe how juristic persons lose their legal personality
,Bonny-Lyle Young // 26079232 // Law of Persons 144
Law of Persons
The Termination of & The Family
Legal Personality/
Pg 131 - 145
Legal Subjectivity
DEATH & IT’S LEAGL SIGNIFICANCE:
ö Legal personality is the ability to be the bearer of rights, duties & capacities
ö Legal personality arises at the live birth of a human (natural person)
ö Or at the registration via a public authority (juristic person)
ö Legal subjectivity is terminated upon death
Determining the EXACT time of the ending of the legal person is important
for the law since the event has repercussions on other legal subjects!!
e.g. heirs; creditors
A degree of certainty is required in this regard
~ If a legal subject ceases to have legal personality, then it cannot be the bearer of
legal rights, duties and capacities
~ i.e. rights, duties & obligations, accrued or resulting from a legal person’s
existence, must thus be ended/ changed/ transferred when the law no longer
recognises the legal personality of the original individual
~ Although the RD&C’s can no longer be exercised by the deceased, many remain
in existence in some from and are retained, managed and transferred in various
ways
e.g. orphans have a continuous claim for maintenance from their parents
estate
,Bonny-Lyle Young // 26079232 // Law of Persons 144
Ending of
Legal
personality
Jurisitic
Natural Person
Person
Termination of legal Termination of Legal
personality upon the personality upon meeting
death of the person. the necessary fromal
requirements, i.t.o. statue
or the Common Law or
Proof of Death:
Death has the legal consequence of terminating legal personality
But being dead does not mechanically end legal personality
Proof of death (by specific standard and from an acceptable legal authority) is necessary
Legal personality is terminated by a legal authority
South Africa:
ƒ Provide evidence of physical death of a person
o (a certificate signed by a medical doctor)
ƒ Upon receipt, Department of Home Affairs issues a formal death certificate
ƒ The law does rely on medical evidence that a natural person’s biological
functions have ceased to operate, but it is the legal process which determines the
end of legal personality, and not the medical profession.
Physical death ≠ termination of legal personality
TWO NB
CHALLENGES:
1. What does it
mean to be
biologically In deciding whether or not a person
“dead”? is biologically “dead”, the medical
2. What happens if professional will rely on certain
there is no
physical body observations relating to 3
available for
inspection
,Bonny-Lyle Young // 26079232 // Law of Persons 144
fundamental & life-sustaining anatomical systems i.o.t.
establish death.
Ω Pulmonary
Ω Respiratory
Ω Neurological
However, there isn’t consistency in their use &
application,
Traditional practice:
Ω Heart & lung activity is measured
Ω If insufficient, it will be enough evidence for a medical practitioner to declare
someone dead.
Ω Sometimes brain activity (or lack thereof) is measured to confirm “death” since
deterioration in brain activity will lead to the cessation of life
, Bonny-Lyle Young // 26079232 // Law of Persons 144
Legal consequences of Death:
Deceased’s estate can be administered
Life policies become payable
Surviving spouse may remarry
The deceased ceases to be the bearer of rights, duties & capacities
National Health Act 61 of 2003
Section 1:
“DEAD” = brain dead
Somatic death: brain permanently stops working
(organ donation possible)
Molecular death: Other organs deteriorate and fail after somatic death
(organ donation not possible)
Dr Debbie Horsten
(021) 808 3183
Assistant
Ms Jamie Day
Bonny-Lyle Young
26079232
,Bonny-Lyle Young // 26079232 // Law of Persons 144
Introductory lecture
Tutorials will be in person only
Official slides will be preliminary slides
Final slides will be uploaded at the end of the work’s section
Course overview:
1. Introduction & terminology
2. The beginning of legal personality
3. The end of legal personality
Classes:
Monday 11:00
Wednesday 14:00
Tuts start in August
Tuesday 11:00
SARAH BRAITHWAITE Assessment dates:
14 September: A1
15 November: 1st exam
(A2)
3 December: 2nd exam
(A3)
Continuous: tut
assessments
,Bonny-Lyle Young // 26079232 // Law of Persons 144
STUDY UNIT 3: THE TERMINATION OF LEGAL
PERSONALITY / LEGAL SUBJECTIVITY
At the time of death the legal subjectivity of a person is terminated and certain other legal
consequences ensue. In the course of this study unit you are informed of the different ways in
which death can, for purposes of the law, be proved. These methods presume that there is a
body. One must, however, bear in mind that there may be circumstances that indicate that a
person is dead although a body was never discovered. The legal principles that would apply
in these cases are also studied. Lastly, attention is paid to the legal approach in South African
law in cases where a number of people die in the same accident or disaster.
After completion of the course students should be able to:
Explain the different methods that may be used to prove death.
Explain why the presumption of death order plays such an important role in law.
Explain the difference in procedure with regard to a presumption of death order in
terms of the common law and a presumption of death order in terms of legislation.
Explain, with reference to case law, which factors a court would consider in deciding
whether to grant a presumption of death order in terms of the common law.
Set out the legal position with regard to commorientes.
Apply the above to given factual scenarios
OUTLINE
1. Death
2. Presumption of death
3. Commorientes
STUDY MATERIAL
o The Law of Persons and the Family 131-158
o Ex parte Pieters 1993 (3) SA 379 (D)
o Ex parte Stoter 1996 (4) SA 1299 (E)
o Ss 1 and 2 of the Dissolution of Marriages on Presumption of Death Act 23 of 1979
SS 5(1), 16 & 18 of Inquests Act 58 of 1959
Civil Aviation Act 13 of 2009 (chapter 4)
,Bonny-Lyle Young // 26079232 // Law of Persons 144
Questions:
Explain the ways in which the death of a natural person can be proven
Give an example of a situation where direct evidence can be used to prove the death
of a natural person.
Name five legally relevant consequences of death.
True or False: “A common law presumption of death order can only be obtained if the
person it relates to has been missing for more than 7 years”.
What factors would a court take into account when considering whether a
presumption of death order should be granted?
What is the effect of a common law presumption of death order?
List the differences between a common law presumption of death order on the one
hand and a finding in terms of the Inquests Act that a missing person is presumably
dead. (Consider the procedure and effect of such orders).
Is there any alternative remedy if a court is not prepared to grant a presumption of
death order?
Can you advise a client who states that her husband disappeared 10 weeks ago when
he went fishing near Gordon’s Bay? May she marry someone else?
What is meant by “commorientes”
Are there any presumptions in the modern South African law regarding the order in
which commorientes died? How would a court approach such a situation?
Explain the difference between biological death and the ending of legal personality
Explain the link between the ending of legal personality and death
Discuss the lag construct of “presumption of death” and it’s effects in both common
& statute law
Discuss the consequences of the ending of legal personality
Describe how juristic persons lose their legal personality
,Bonny-Lyle Young // 26079232 // Law of Persons 144
Law of Persons
The Termination of & The Family
Legal Personality/
Pg 131 - 145
Legal Subjectivity
DEATH & IT’S LEAGL SIGNIFICANCE:
ö Legal personality is the ability to be the bearer of rights, duties & capacities
ö Legal personality arises at the live birth of a human (natural person)
ö Or at the registration via a public authority (juristic person)
ö Legal subjectivity is terminated upon death
Determining the EXACT time of the ending of the legal person is important
for the law since the event has repercussions on other legal subjects!!
e.g. heirs; creditors
A degree of certainty is required in this regard
~ If a legal subject ceases to have legal personality, then it cannot be the bearer of
legal rights, duties and capacities
~ i.e. rights, duties & obligations, accrued or resulting from a legal person’s
existence, must thus be ended/ changed/ transferred when the law no longer
recognises the legal personality of the original individual
~ Although the RD&C’s can no longer be exercised by the deceased, many remain
in existence in some from and are retained, managed and transferred in various
ways
e.g. orphans have a continuous claim for maintenance from their parents
estate
,Bonny-Lyle Young // 26079232 // Law of Persons 144
Ending of
Legal
personality
Jurisitic
Natural Person
Person
Termination of legal Termination of Legal
personality upon the personality upon meeting
death of the person. the necessary fromal
requirements, i.t.o. statue
or the Common Law or
Proof of Death:
Death has the legal consequence of terminating legal personality
But being dead does not mechanically end legal personality
Proof of death (by specific standard and from an acceptable legal authority) is necessary
Legal personality is terminated by a legal authority
South Africa:
ƒ Provide evidence of physical death of a person
o (a certificate signed by a medical doctor)
ƒ Upon receipt, Department of Home Affairs issues a formal death certificate
ƒ The law does rely on medical evidence that a natural person’s biological
functions have ceased to operate, but it is the legal process which determines the
end of legal personality, and not the medical profession.
Physical death ≠ termination of legal personality
TWO NB
CHALLENGES:
1. What does it
mean to be
biologically In deciding whether or not a person
“dead”? is biologically “dead”, the medical
2. What happens if professional will rely on certain
there is no
physical body observations relating to 3
available for
inspection
,Bonny-Lyle Young // 26079232 // Law of Persons 144
fundamental & life-sustaining anatomical systems i.o.t.
establish death.
Ω Pulmonary
Ω Respiratory
Ω Neurological
However, there isn’t consistency in their use &
application,
Traditional practice:
Ω Heart & lung activity is measured
Ω If insufficient, it will be enough evidence for a medical practitioner to declare
someone dead.
Ω Sometimes brain activity (or lack thereof) is measured to confirm “death” since
deterioration in brain activity will lead to the cessation of life
, Bonny-Lyle Young // 26079232 // Law of Persons 144
Legal consequences of Death:
Deceased’s estate can be administered
Life policies become payable
Surviving spouse may remarry
The deceased ceases to be the bearer of rights, duties & capacities
National Health Act 61 of 2003
Section 1:
“DEAD” = brain dead
Somatic death: brain permanently stops working
(organ donation possible)
Molecular death: Other organs deteriorate and fail after somatic death
(organ donation not possible)
