Law of Persons Notes
Law of Persons Notes
Law of Persons Notes
3. Personality property
A person’s right to his good name (reputation), honor, personal integrity are examples of
personality rights.
i. Birth must take place; it is a necessity to have a separation between the mother and
the child. However, there is no requirement that states the umbilical cord should be
cut.
ii. The child must be alive after separation. The child is obliged to breathe in order to
show signs of being alive. Hydrostatic test.
iii. The third requirement is open to debate as to whether it is necessary. Certain authors
proclaim that the child should also be ‘viable’ before they can acquire legal
personality. This means that the child must of reached a certain developmental stage
(an existence separate from its mother) before they can attain legal personality.
iv. Furthermore, a registration of birth should proceed.
Registration of Birth
The Director General of Home Affairs must be notified of the birth of every child who was
born alive. The notification must be given within 30 days of the child’s birth.
*Nasciturus Rule: where there is a benefit for the child: at the time of conception, the child
becomes a legal subject.
*Nasciturus Fiction: Whatever benefit will have to be on hold until the child is born alive.
The person’s estate may, in principle, be dealt with as if she were dead and her estate can
therefore be administered and divided among her heirs. But the heirs must furnish security
for the restoration of the property, or its value, should the missing person return.
A presumption of death automatically dissolves the person’s marriage. In other words, the
personal and patrimonial consequences of the termination of the marriage are exactly the
same as if the marriage were dissolved by the death of one of the spouses.
When you die, you are no longer a legal subject. The law protects 2 interests of a dead
person: 1. Respect for the dead
2. Disposal of the body (for public health)
Under private law (law of persons) it is important that proof of death is submitted.
1. To enable the liquidation and distribution of the deceased’s estate/assets to the heirs.
2. For the dissolution of the institution of marriage. (to enable the spouse to move on)
*A death certificate is necessary to prove that a person is dead.
When the person disappears in times of tranquility (peace), the onus on you will be higher as
to convince the court that the person is dead. Even if the person has disappeared for a very
long time. In order for you to succeed you have to convince the court on a
balance/preponderance of probabilities.
Status
The word ‘status’ is derived from the Latin verb stare which means ‘to stand’. This concern
with a person’s “standing” in the law. This standing is determined by all those attributes a
person has, or the condition in which he finds himself to which the law attaches
consequences. The most significant attributes which determine a person’s staturs are:
Domicile, extra-marital birth, youth, physical illness or incapacity, mental illness or
incapacity, intoxication, prodigality and insolvency.
Legal Capacity
Legal capacity is the capacity to have rights and duties. All human beings have this capacity.
Distinction between the capacity to have rights and duties, and the particular rights and duties
that a specific person has at a specific time. Eg: Children below a certain age cannot marry.
They have limited legal capacity. Their status may differ from that of a person who may
marry.
Capacity to Act
Capacity to act refers to the capacity to perform valid juristic acts. A juristic act attaches at
least some of the consequences. It is clear that entering into legal transaction can have
implications, therefore the person must have achieved a certain level of intellectual
development before the law confers capacity to act on him. People under the age of 21 are
considered not to have the necessary maturity of judgment and must therefore be protected
by the law.
Capacity to Litigate
Capacity to litigate is the capacity to appear in court as a party to a lawsuit.
Domicile
Domicile is the place where a person is legally deemed to be constantly present for the
purpose of exercising her rights and fulfilling her obligations, even in the event of her factual
absence. To acquire domicile in the legal sense the person must have the intention of settling
at the particular place for an indefinite period. Domicile and citizenship coincide.
Importance of domicile
Lex domicilii is significant. It determines whether a child is legitimate or extra-marital. Lex
domicilii is importance for the law of succession, the law of intestate succession, the capacity
to inherit, the system of law according to which a will is to be interpreted, the matrimonial
property regime of a marriage, the law of procedure.
Why is it important to know where the person is domiciled?
1. it determines the jurisdiction of court
2. Your right to enter into a contract
*Every person must have a domicile at all times. The Domicile Act provides that no one
loses her domicile until she has acquired another domicile.
Domicile of Choice
A domicile of choice is that domicile which someone who has capacity to act has chosen for
herself by exercising of her own free will. It is the most important kind of domicile. A person
over the age of 18 years (or having the status of a major) and having a mental capacity to
make rational choices are part of the requirements to attain a domicile of choice. However,
there are two more requirements:
1. The person must actually settle at the particular place (factum)
2. The person must have the intention of residing permanently at that place (animus)
Factum requirement
This is viewed objectively. No specific period of physical residence is required but the person
must not simply be visiting the place. The courts sometimes take into consideration the
duration of the physical presence to infer from whether the person had the intention of
remaining at that specific place. You must actually settle at the place where you choose to
domicile.
CASE: Cook v Cook 1939 CPD 314
In order to acquire a domicile of choice at a particular place ther person must actually reside
there, and have the animus manendi, that is the intention to remain at that place. It should be
noted that although these requirements must at some stage exist simultaneously, they need
not come into being simultaneously.
Animus requirement
This is a subjective test. In other words, the intention of the particular person is determined;
the intention not to leave the particular place, and the intention of residing permanently at the
particular place. *the problem with this requirement is ‘intention’.