SCHOOL OF LAW

DEPARTMENT OF PRIVATE LAW

LAW OF PERSONS 1541

COURSE OUTLINE 2018

Credits 12

NQF level 5

Compiled by Adv GJ Joubert

INTRODUCTION
Welcome to the Law of Persons as your first major law course. May it unlock for you the
fascinating and intriguing world that recognises people through the lens of the law.

LECTURER
Your lecturer for this course is Adv GJ Joubert. His approach to teaching is motivated
by three premises:
i. Students who meet the admission criteria and are selected to study law,
already possess the necessary abilities to make a success of their studies.
ii. All people learn through their five senses. People see, listen, smell, taste and
touch to discover and learn new things. Same applies to teaching students.
iii. No one knows everything. The field of law is ever evolving and developing and
even law academics remain students of the newest developments.

You may consult him in office F08, School of Law, during consultations hours.
Consultation hours: Monday 09:00-11:00; 14:00 – 15:00
Tuesday 08:00-10:00; 14:00 – 15:00
Wednesday 14:00-15:00
Friday 09:00-11:00; 14:00 – 15:00
Alternatively, you may contact him during office hours at tel.015-962 8099

LECTURE TIMES VENUE

Mondays 11:00-11:50 E1
Tuesdays 11:00-11:50 E2
Wednesdays 11:00-11:50 E3

IMPORTANCE OF THIS COURSE

Law of Persons is a mandatory course for the LLB degree and establishes the basis for
all Private Law courses. It introduces students to the essential principles necessary to
understand how the law acknowledges a human being. All Private Law courses build on
the knowledge that you will acquire in this course. It is thus of paramount importance
that you attend all your lectures and tutorials. Your success is only assured by studying
throughout and completion of all the assessments.

ESSENTIAL STUDENT ENGAGEMENT

To successfully complete this course, students should:
 Possess a good English command, both spoken and written;

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  Take responsibility for their own work by reading textbooks and researching of
relevant sources of the law;
 Be able to independently apply legal principles meaningfully to legal problems;
 Use proper legal problem-solving methods;
 Regularly access Blackboard Learn on-line for announcements and updated
course information.

 A blended learning approach is followed. Apart from three formal lectures per
week, there are also e-learning and tutorial classes. PowerPoint slides guide the
teaching and discussions in class. The course outline sequence is closely
followed. Students are expected to come to class already prepared to engage
with the material.
 Students are expected to take their own notes during lectures and supplement
these with textbooks and other prescribed materials.
 Apart from lectures, each student must also attend a compulsory tutorial class
once a week, starting from the third week of lectures. At these tutorials each
student must submit to the tutor the answers prepared for that week. Tutorial
classes serve as forums to discuss course materials. Times and venues for
tutorials will be communicated after consultation with the tutors and students.
 This course makes use of Blackboard Learn. All class announcements, course
materials, tutorial questions and memorandums will be made accessible on it.
 Two class representatives (one male and female) will be elected by the class to
liaise with and assist the lecturer in communicating with the class and circulating
attendance registers.
 Lecture and tutorial attendances are taken by way of attendance registers.

COURSE OBJECTIVES
Law of Persons is offered in a way to equip law students with an understanding of the
basic concepts and principles underlying Private Law. The learning activities are aimed
at developing students’ consciousness of values and to reason for themselves. The
course tuition addresses aspects of critical thinking skills, research skills, ethics and
integrity, communication and literacy, numeracy, information technology, problem
solving, self-management and collaboration, transfer of acquired knowledge, and the
responsibility of service to the community. Please refer to the Council on Higher
Education Qualification Standards for Bachelor of Laws (LLB) for a greater
understanding of these aspects. The latter document is uploaded on Blackboard.

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LEARNING OUTCOMES
A student should after completion of this course be able to:
1. Identify the essential role Law of Persons plays in the broader legal system;
2. Explain the concept of transformative constitutionalism and its impact on legal
development;
3. Explain the concept of legal subjectivity, when it begins and ends, and the
consequences for both;
4. Explain how the status of a natural person is affected by variable factors, i.e.
origin of birth, age, domicile, mental state and prodigality;
5. Explain the legal status of minors and extent of children’s rights;
6. Appreciate values and upholding of ethics in the legal profession.

ASSESSMENT
 All the formative assessments below are compulsory.
 The semester mark comprises of four components (weight of each):
 Two written tests (30% each) x 2 = 60%
 One written individual research based assignment (20%)
 Tutorial submissions and participation (20%)
 A student who misses the test must within 7 days of the test date submit a written
reason to the lecturer, supported by documentary proof, why he/she should be
granted another opportunity.
 Submission of the assignment can be done before the due date. There will be
no extensions or exceptions for non-submission of the assignment on the due
date. Same rule applies to submission of tutorial answers to tutors on the day of
the tutorial.
 Feedback on the assessments will be given upon the return thereof.

ASSESSMENT DATES
1. Thursday, 01 March 2018 Test 1
2. Wednesday, 28 March 2018 Submission written assignment (before 14:30)
3. Thursday, 03 May 2018 Test 2

There is one final written exam at the end of the semester. Admission to the exam is
dependent on achieving a 40% semester mark. The semester mark contributes 60%
and the exam mark 40% towards the final result.

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LEARNING ASSESSMENT TEACHING ASSESSMENT
OUTCOME CRITERIA ACTIVITY TASK
Identify the Able to state how 1.Formal lectures Test 1
essential role Law the Law of Persons and class
of Persons plays in interplays with discussion
the broader legal other fields of law
system
Explain the Able to define the 1.Formal lectures Test 1 and the
concept of concept of 2.Class discussion written assignment
transformative transformative and tutorial group
constitutionalism constitutionalism, discussion
and its continued and illustrate legal 3.Research activity
impact on the Law examples thereof
Explain the Able to describe 1.Formal lectures Test 1
concept of legal the concepts of 2.Class discussion
subjectivity, when status and legal in formal lecture
it begins and ends, personality, and and in tutorial
and the the legal groups
consequences for implications for
both each concept
Explain how the Able to name the 1.Formal lectures Test 1, Test 2 and
status of a natural factors influencing 2.Class discussion the written
person is affected status; able to and in tutorial assignment
by variable factors, explain what the group
i.e. origin of birth, influence each 3.Research activity
age, domicile, factor is on the
mental state and legal status of a
prodigality natural person
Explain the legal Able to describe 1.Formal lectures Written assignment
status of minors the various rights 2.Class discussion and Test 2
and extent of and capacities of and in tutorial
children’s rights the minor group
3.Research activity
Appreciate values Able to make a Continuous Forms part of
and upholding of sound and proper discussions in every assessment
ethics in the legal judgement on lectures
profession ethical issues

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Competences assessed in assessment tasks (NQF level 5) are:
 Foundational competence: knowledge and comprehension of material (60%)
 Reflexive competence: ability to evaluate material (20%)
 Practical competence: ability to apply knowledge to simple problem solving
(20%)

STUDY MATERIAL
 The prescribed textbook used in this course is, The South African Law of
Persons, 4th Edition, by Jacqueline Heaton, LexisNexis, 2012.

Other recommended materials:

 The prescribed textbook used in this course is, The South African Law of
Persons, 5th Edition, by Jacqueline Heaton, LexisNexis, 2017
 The Law of Persons in South Africa, edited by H Kruger and A Skelton, Oxford
University Press, 2010
 Law of Persons, 6th Edition, by Trynie Boezaart, Juta, 2017.
 Law of Persons, 5th Edition, by Trynie Boezaart, Juta, 2010
 Casebook on the South African Law of Persons, 4th Edition, by J Heaton, 2012
 Law of Persons Sourcebook, 5th Edition, by Trynie Boezaart, Juta, 2011
 The South African Law of Persons, 3rd Edition, by Jacqueline Heaton,
LexisNexis, 2008.

KEY TO USING THE COURSE OUTLINE

In each Unit you are directed to the appropriate chapters in the textbook of Prof J
Heaton, as well as the prescribed court cases, and legislation.
The court cases and legislation are available in the library and on-line.
Please ask the law librarian, Mr M Ramabina for assistance when needed.

NB: Court cases and legislation are equally important to study as the textbook!

You are expected to read the material related to a Unit before the actual lecture dealing
with it. This enables you to take part in class discussions and to answer questions. After
lectures revise the work and read case law that was covered in class. This will ensure
that you will always be prepared for tutorials, tests and the final exam.

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UNIT 1 (Week 1): BASIC TERMS AND CONCEPTS Read Chapter 1 & 3
Students are exposed to certain basic legal principles and concepts necessary to
understand the Law of Persons.
1. Introducing The Law & Private Law
2. Legal subjects
3. Status
4. Law of Persons
5. Legal objects
6. Capacities
7. Transformative constitutionalism
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UNIT 2 (Week 2 & 3): WHEN LEGAL SUBJECTIVITY BEGINS Read Chapter 2
When is legal personality recognised? What is the legal position of unborn babies? What
is the legal position concerning abortion?
1. Birth
Criminal Procedure Act 51 of 1977, S 239

2. Registration of births
Births and Deaths Registration of Act 51 of 1992, Ss 1(1) “birth”, 9(1)
Alteration of Sex Description and Sex Status Act 49 of 2003, Ss 2(1), 3(2), 24(1)

3. Protection of the unborn foetus: nasciturus fiction

3.1 Requirements (operation of the fiction)
3.2 Application
Wills Act 7 of 1953, Section 2D(1)(c)
Ex parte Boedel Steenkamp 1962 (3) SA 954 (O)
Road Accident Fund v Mtati 2005 (6) SA 215 (SCA)

4. Protection of the unborn foetus’ interests vs Abortion

4.1 Does a foetus have a right to life?
Christian Lawyers Association of South Africa v The Min of Health 1998 (4) SA
1113 (T)
4.2 Termination of pregnancy
Choice on Termination of Pregnancy Act 92 of 1996, Ss 1-5, 10(1)
Christian Lawyers Association of South Africa v The Min of Health 2005 (1) SA
509 (T)
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UNIT 3 (Week 4): WHEN LEGAL SUBJECTIVITY ENDS Read Chapter 2
What if someone disappears and her body is never discovered? Who is presumed to
have died first where a number of people die in the same accident or disaster?
1. Moment of death
National Health Act 61 of 2003, Chapter 8, Ss 1 “death”, 54-67
Births and Deaths Registration Act 51 of 1992, S15

2. Sequence of death (Commorientes)

3. Presumption of death
3.1 Common law procedure
Dissolution of Marriages on Presumption of Death Act 23 of 1979, S 1
Re Beaglehole 1908 TS 49
Ex parte Pieters 1993 SA 379 (D)
3.2 Statutory procedure
Inquests Act 58 of 1959, Ss 3, 4, 5(2), 16, 18
Dissolution of Marriages on Presumption of Death Act 23 of 1979, S 2

4. Registration of deaths
Inquest Act 58 of 1959, S 2
Births and Deaths Registration Act 51 of 1992, S14
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UNIT 4 (Week 5): DOMICILE Read Chapter 4
Which legal system determines a person’s status?
1. Meaning of domicile
Domicile Act 3 of 1992, S 3(1)

2. Relevance of domicile

3. Types of domicile
3.1 Domicile of origin
Domicile Act 3 of 1992, Ss 2, 3(1)
Grindal v Grindal 1997 (4) SA 137 (C)
3.2 Domicile of choice
Domicile Act 3 of 1992, S 1, 5
3.3 Domicile by operation of law
Domicile Act 3 of 1992, S 2
4. Problematic cases
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UNIT 5: THE INFANT [Self-study unit] Read Chapter 6
What is the legal status of a baby and a small child?
1. Legal capacity
2. Capacity to act
3. Capacity to litigate
4. Capacity to incur criminal and delictual liability
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UNIT 6 (Week 5, 6 & 7): THE MINOR Read Chapter 6
What are the capacities of a minor?
1. Introduction
2. Is it Constitutional to use someone’s age to determine his status?
3. Legal capacity
Children’s Act 38 of 2005, Ss17, 19(2)
4. Capacity to act
4.1 Full capacity
4.2 Limited capacity
Children’s Act 38 of 2005, Ss 19(1), 20, 21(1)
Van Dyk v SAR&H 1956 (4) SA 410 (W)
Edelstein v Edelstein NO 1952 (3) SA 1 (A)
4.3 Ante-nuptial contracts
4.4 No capacity
4.5 Undue enrichment
4.6 Legal protection
Prescription Act 68 of 1969, Ss 11(d), 13(1)(a)
4.7 Fraudulent minor
Louw v MJ&H Trust (Pty) Ltd 1975 (4) SA 268 (T)
5. Capacity to litigate
Tshona v Principal, Victoria Girls High School 2007 (5) SA 66 (E)
6. Capacity to be held accountable for crimes and delicts
Child Justice Act 75 of 2008, S 7
7. Capacity to get married
8. General capacities of a minor
Christian Lawyers Association of South Africa v The Minister of Health 2005 (1) SA
509 (T) (see H Kruger and A Skelton p36-37)
9. Termination of minority
Children’s Act 38 of 2005, S 17
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UNIT 7 (Week 8): MENTALLY ILL & THOSE UNABLE TO HANDLE OWN AFFAIRS
Read Chapters 7 & 8
The ability to make rational decisions is the most important characteristic that a person
needs in order for him / her to be able to participate in the legal and commercial world.
1. Mentally ill
Prinsloo’s Curators Bonis v Crafford & Prinsloo 1905 TS 669
Theron v AA Life Assurance Association Ltd. 1995 (4) SA 361 (AD)
Francescutti v Francescutti; Ex Parte Francescutti 2005 (2) SA 442 (W)
Criminal Procedure Act 51 of 1977, Ss 78(1), 78(1A)
Mental Health Care Act 17 of 2002, Ss 1, 8-11, 25-27
2. Curatorship
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UNIT 8 (Week 8): INTOXICATED, PRODIGAL & INSOLVENT Read Chapters 9, 10 & 11
May a drunk person enter a contract? May a spendthrift act on his own? What is the
legal position of an insolvent person?
1. General

2. Legal capacity

3. General capacities
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UNIT 9 (Week 9 & 10): THE INFLUENCE OF BIRTH Read Chapter 5
What is the status of a child born out of wedlock? What about fathers claiming or denying
paternity?
1. Birth within wedlock and birth out of wedlock
National Health Act 61 of 2003, Ss 1 ‘gamete’,
Children’s Act 38 of 2005, S 1 ‘artificial fertilisation’, ‘surrogate mother’, ‘surrogate
motherhood agreement’, Ss 39(1), 40
Ex parte WH 2011 (6) SA 514 (GNP)

2. Proof of paternity
Children’s Act 38 of 2005, Ss 2(b)(iv), 7(1), 9, 36, 37
YM v LB 2010 (6) SA 338 (SCA)

3. Status of a child born out of wedlock

Children’s Act 38 of 2005, Ss 18(2)-(5), 19(1)-(2), 20, 21(1), 24, 39(1)
FS v JJ 2011 (3) SA 126 (SCA)

4. Children born out of wedlock status change

Children’s Act 38 of 2005, S 38(1)
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UNIT 10 (Week 11 & 12): LEGAL POSITION OF CHILDREN
What are children’s rights? How do they also protect children?
1. Children’s rights (see H Kruger and A Skelton p4-5)
Constitution 108 of 1996, Ss 9, 28
Children’s Act 38 of 2005, Ss 1-11, 13-21, 30-31, 35-40
United Nations Convention on the Rights of the Child 1989
Petersen v Maintenance Officer, Simon’s Town Mntce Court 2004 (2) SA 56 (C)
H v Fetal Assessment Centre 2015 (2) SA 193 (CC)

2. Medical access (see H Kruger and A Skelton p131-134)

Children’s Act 38 of 2005, Ss 129-134

3. Adoption (see H Kruger and A Skelton p105-106)

Children’s Act 38 of 2005, Ss 233, 242
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