Name of Module : Law of Persons

LAP 101
•PROF.A.A OKHAREDIA

•LL.B(UZ), LL.M (NATAL), LL.D (UNISA),

•B.SCHONS, M.SC (IBADAN), MBA (NORTH-WEST), PH.D (VIENNA), PH.D
(WITS)
•ADVOCATE OF THE HIGH COURT OF SOUTH AFRICA
General Introduction to Law of
Persons

A.

Definition of the of persons

- Law of Person’s is a part of private law.

-It determines which beings or entities are legal subjects or persons

-It determines the way in which legal personality begins and is terminated.
 Some Basic Concepts in law of person

B.

-Law and rights

-The concept of law itself can be considered as a system of norms of conduct or rules recognized by competent bodies to regulate
relationship between members of the community or any legal entity.

-An example of the above is that (MR. A) should not cause damage to ( MR.B) or another person. To fulfil one’s contract (Pacta sunt
servanda) is another example, and these are seen from objectives perspectives).

-Another Perspective in which law can be seen is from network of relationships among human beings or legal subjects.

-A night to your own invention which the individual has patented. A right to your good name which another person cannot defamed to
another person.
 B.

-The legal relationships between the bearer of the right and other legal subjects who
must respect his right is referred to as subject- subject relationship, the content of
which is a right and corresponding obligation.

-We cannot speak of a right if it cannot be enforced against other legal subjects.

Some Basic Concepts in

- One can only speak of the right if the right against other legal subjects has a

law of person bearing on some object which is of material or sentimental value to its legal subject.

continued…
-Another Perspective in which law can be seen is from network of relationships
among human beings or legal.

-The connection between law and rights is that the norms of the law determine how
far the powers of the bearer of a right extend . For instance, you may drive your car
the way that you want, but you must not cause damage

-This right creates obligations for another legal subject Vis-a-visa the bearer of the
right and this is often concerned with dual relations
c. Legal subjects and legal objects

 There is a basic distinction between legal subjects (for example human beings), and
legal objects (for example animal and things).
 Legal subject refers to any being or entity that can have rights, capacities and duties.
 A legal subject is any entity that is recognized by law and to which the law attribute the
competency to have rights, duties and capacities.
 The law therefore confers upon the entity legal subjectivity. A being or entity upon which
this is conferred is called a legal subject.
 The capability of having rights, duties and capacities is called legal capacity.
c. Legal subjects and legal objects
continued…
 The term legal object means anything or object which has economic value for man
and upon which the law has not conferred the competency to have rights, duties and
capacities which cannot participate in legal and commercial transition (e.g person’s
govd name).
 A legal object is any object upon which rights and obligations have a bearing, but
which can never be the bearer of the right.
 In legal paradigm, the difference between human beings (legal subjects) and animals
(Legal Objects) lies mainly in the fact that human beings can act and therefore give
rise to legal consequences.
 The legal subject controls and deals with legal objects and thus acquires rights ,
duties and capacities against other legal subjects in relations to legal objects.
 Legal subjects deals in commercial and legal interactions and the things with which
they deal are the legal objects.
Four Categories of legal Objects

1.) Corporeal thing: 2.) Performances:

 Corporeal things are physical material  A performance is a human act and the
things which are susceptible to human right which one has to a performance is a
control and are of value to man (e.g. house personal right
or car).  If ‘A’ and ‘B’ agree that ‘A’ will sell his
 The right to a thing is regarded as a real computer to ‘B’ for R4 500,00 then ‘B’ has a
right. personal right to performance by ‘A’
 provided ‘B’ has paid the money and ‘A’
The real right which one had in respect of
must therefore deliver the computer to ‘B’.
one’d motor car, or a house is regarded as
right of ownership.
Four Categories of legal Objects
continued…

3.) Personality property 4.) Immaterial Objects

 The right to personality property is a  The right to an immaterial object is an
personal right. immaterial property right. For example, an
 artist’s right to his painting or an author’s
A person’s right to his good name, his
right to his book or an inventor’s right to
honor and his corporeal integrity are
his invention.
examples of personality rights as the object
of the person’s right since it is an aspect of  In all the above examples, the object is a
the individual’s personality. product of the human mind , which is the
idea contained in the products and not the
physical or tangible painting or book itself.
E. Different kinds of Legal Objects
1. The Natural Person

 Every human being irrespective of his or her age, mental condition or intellectual
ability is recognized in South Africa as a legal subject,
 Every human being has rights, duties and capacities although the content of his
rights, duties and capacities may vary depending on factors such as mental
conditions and age.
 In the past years 1300-1400 not every human being was classified as human beings in
the Roman and Germanic law. For instance ,slaves were regarded as legal object and
not legal subject. Slaves were seen as animals or furniture and consequently could
not have rights, duties or capacities.
2. The Juristic person

 The human being or natural person is not the only legal subject who is recognised as such in
South African Law.
 The Law realises that under certain circumstances an association of persons must itself be
recognised as a legal subject.
 Such an association to which legal subjectivity is generated, is known as a juristic person.
 Juristic person as a legal subject, enjoys an independent juridical existence from that of its
member or the natural persons.
 Naturally, the juristic person must always act through its functionaries; for example , in
the case of a company the directors act on behalf of the juristic person, the company.
 The Functionaries act on behalf of juristic person and it is the juristic person who acquires
rights, duties and capacities and not the functionaries.
a.) The following entities are recognized in
South African Law as juristic persons

 Associations incorporated in terms of a general enabling enactment such as companies,

banks etc., in terms of the bank Act.
 Associations that may be established only with the permission of the state. For example,
Eskom, SABC & Universities
 Associations that exist as juristic persons without any state intervention, but they meet the
common-Law requirements for the establishment of a juristic person, Examples would be
the church ,political parties and trade unions.
F) The Beginning and End of Legal
Subjectivity

 A natural person’s legal subjectivity begins at birth.

 Before birth, the fetus is not a legal subject but merely forms part of the mother.
 In legal paradigm, the requirements for the beginning of legal subjectivity are the following ;
(a). The birth must be fully completed, that is there must be a complete separation between the
body of the mother and the fetus.
(b) The child must be alive after the separation even if only for a short period after . Legal
subjectivity is not obtained by a stillborn fetus or a fetus which dies during birth.
(c.) In South African law, it has not yet authoritatively been decided how life must be proved after
birth. However, the Criminal Procedure Act 51 of 1977 indicate that such a child shall be deemed to
have been alive if the child is proved to have breathed.
F.) The Beginning and End of Legal
Subjectivity Continued…..

(e). The courts will naturally rely on medical evidence to prove that a child was born alive
and whether the child has breathed.
(f) It also argues that a person must be viable before legal subjectivity is conferred upon
him.
- This means that the child must have reached such a stage of development that an
extended independence the mother is possible.
- If a child is born in light of human experience, has no chance of remaining alive
that child will not be recognized as a legal subject even if the child is separated from the
mother.
G.) Registration of births

 The registration of births is regulated statutorily in the birth and dearth Act 51 of 1992.
 In terms of the Act, people are obliged to register a birth with the Director-General of
Home Affairs or with a person to whom this authority has been delegated.
 The duty to give notice rests on any one of the child’s parents and if neither of his parents
and if neither of his parents is able to do so then the person having charge of the child or a
person requested to do so by the parents or the said person.
Registration of births continued…

 Notice of the legitimate child must be given under the Surname of the father of the child,
and in the case of extra –marital child under the surname of the mother.
 Such a child may however be registered under the surname of the Father at the joint
request of the mother and father.
 The father must in the presence of the person to whom the notice of birth is given
acknowledge himself in writing to be the Father of the child and enter the prescribed
particulars regarding himself on the prescribe notice of birth .
 In the situation where the parents of extra-marital child merry each after registration of
the birth, the register will, on application to the director-general, be altered and the birth
will be register as if the parents were legally married to each other at the time of his birth.
Registration of births continued…

 The application may be brought by either of the child’s parents or his guardian if the child is a minor and by the
child himself if he is a senior.
 Study the following cases:
1. Centre for child Law V Director-general dept. of home affairs
( fathers now have the to register the child in his name in the case of unnamed parent so that the child can now access
education and health benefits.
2. Study the case study of T V Director general dept. of home affairs.
( same sex life partnership)
H) Protection of the unborn’ s interests

 Protection by means of nasciturus fiction.

 Legal subjectivity of a man begins at birth.
 The conceived but unborn foetus, the nasciturus is thus not a legal subject, and therefore,
it cannot have rights, duties and capabilities`.
 In Roman Law the foetus was not regarded as a legal subject, because it still formed part
of the mother’s body.
 As the Roman Law develops, it has taken into account that in the natural course of events
the foetus will become a legal subject.
 And that before birth, situations could arise which could have been at the advantage of
the nasciturus if he had already been born as a beneficiary under a will.
H) Protection of the unborn’ s interests cont…

 When ever the above situation arises, the law protects the potential interests of the
nasciturus by implementation of the fictions that the fetus is regarded as having been born
at the time of the conception when ever it is to his advantage.

Study the case of Ex Parte Boedel Steenkam 1962 3 SA a54

H (a) : Principles guiding Nasciturus rules:

 The nasciturus must have been conceived at the time that the benefits would have
occurred to him and the child must subsequently be born alive before thenasciturus fiction
can come into operation.
 If the child is not born alive, it is assumed with regard to this interests that he was never
conceive.
 A third person may benefit from the application of the nasciturus fiction if such benefit is
the natural consequence of the application of the fiction in favour of the nascoturus, but
the nasciturus fiction cannot be used. If only a third person will benefit from its
application.
 If a nasciturus is born alive and the inherits an estate larger enough to support himself, his
parents will not be liable for his maintenance.
H (a) : Principles guiding Nasciturus rules:

 In the above situation, the parent will also benefit from the application of the nasciturus
 The fiction cannot be used to the prejudice of the nasciturus.
(i) Application of Nasciturus rule

 Subject to the requirements of common law, the nasciturus fiction is used in several parts
of private law to protect the interests of the unborn child.
 We shall examine the above application in law of succession and law of delict.
Law of Succession

 In respect of common law tradition, the nasciturus fiction has often been used in law of
succession.
 This part of the law is divided into two distinct sections: intestate succession and testate
succession.
 In the case of testate, it is concerned with those rules regulating succession according to
the will of the testator as expressed in a valid will.
 The nasciturus fiction is used in both these distinctions of the law of succession.
Law of Succession…

 A heir will benefit from the law of intestate succession only if he or she is alive during the
time in which the estate falls open. This usually occur at the death of the testator.
 If the child is born alive, he or she shares in the estate as if he or she he or she had already
been born at the time of the testator's death.
 If the foetus is still born, no right can vest in it and the estate is divided without
considering the foetus.
 With the above consideration, in the law of testate succession, the nasciturus fiction has
often been used to negotiate a benefit for a heir in a case where the testator has dies prior
to the birth of the heir, but after the latter’s conception.
Law of Succession…

 Please study the case of Ex Parte Boedel Steenkamp where the court ruled thatin referring
to the nasciturus fiction where the testator clearly declared that the grand children who are
alive at the death of the testator, they will have to inherit the estate.
The Law of Delict.

 In the case of Chisholm, v East Rand Proprietary mines ( 1909 TH 297 at 301), the
nasciturus fiction was extended to the law of delict and applied in an action by
dependents.
 This action hangs on the fact that members of a family who are dependent on a
breadwinner for their maintenance, have a claim for damages against a third party who
has wrongfully and negligently caused the death of the breadwinner
 The third person has thus infringed their personal right to be maintained by the
breadwinner.
 In this Chisholm case, the plaintiff's husband had died in a mine accident. It was, found,
however, that the accident caused by an employee of the defendant.
The Law of Delict continued…

 At the time of the breadwinner’s death, the claimant was pregnant with their first child.
 She then claimed damages from the defendant due to the infringement of her and her
child’s right to maintenance.
 The court ruled that the application of the nasciturus fiction results in the fact that the
unborn child in an action for damages is in the same position as other children and
because of this, the plaintiff’ claim succeeded.
 Another case to be considered in terms of the law of Delict is the case of Pinchin v
Santam Insurance Co. Ltd
 In the above case, the nasciturus fiction has been extended further to cover not only
patrimonial loss but also cases of reparation.
The Law of Delict continued…

 In this case, In this case, a pregnant woman was injured in a car accident owing to the
negligence of the other driver. The defendant was the statutory insurer of the other
vehicle.
 After the child’s birth, it was found that the child suffered from cerebral paralysis and
brain damage.
 The child’s father claimed reparations on behalf of the child on the grounds that the
injuries were sustained in the car accident.
 He also claimed compensation for medical expenses which arose from the accident.
 With reference to the nasciturus fiction, the court rules that a child will be entitled to
compensation due to injuries it has sustained as foetus.
The Law of Delict continued…

 The, plaintiff however, did not succeed in proving on a balance of probabilities that the
brain damage was sustained during the accident and was not successful in the claim.
 In the case of Road accident fund V Mtati, the facts were similar to those in the Pinchin
case. In this particular case, the father of a child had sued the Road Accident Fund after
his wife was involved in a car accident during pregnancy ( See SA 215 SCA 2005(6))
 At birth of the child, it appeared that the child had suffered brain damage, and suffered
mental disabilities.
 The father alleged that these injuries and disabilities were as a result of the negligent
conduct of the other driver and sued the road accident fund for an amount of R1.3
Million.
The Law of Delict continued…

 The court a quo rejected this special plea and the road accident fund appeared to the
supreme court of appeals.
 The legal questions specifically dealt with the fact that the relevant legislation stipulates
that the fund is obliged to compensate any person for damages arising from injuries.
 The fund argument was that the unborn child is not a person, the driver had no duty of
care towards her.
 In this case, the supreme court of appeals found that the application of the nasciturus
fiction is unnecessary in the case of pre birth injuries.
The Law of Delict continued…

 It shows that the nasciturus fiction would not provide basis for an action if the injury
causing even took place before compensation.
 The court referred to an instance where a mother is infected with syphilis in a negligent
manner before her child is conceived and the child is later born with congenital syphilis.
 The court’s view in the above instance is that there should be a remedy in such an
instance and rejects theories that do not recognize the existence of such remedy.
 Conclusively, with the above case of the Road accident fund V Mtati, the court favoured
the application of the general principles of law of delict, which allows for remedy as soon
as all the elements of a delict are oresent
The Law of Delict continued…

 In this way the court also did away with the argument that there is no duty of care towards
an unborn child.
Other means of protecting interests in succession

 The following are other regulations which protects the interests of the unborn:
• The court can appoint a curator Ad Litem when the interests of an unborn or unconceived
person are concerned and in this situation the curator will serve their interest in legal
proceedings.
• There are several statutory measures which aim at protecting the interest of the unborn
( or unconceived ) in succession.
• In the Immovable property Act 94 of 1965, a provision is made for instances when the
unborn or unconceived has an interest in immovable property ( usually Land) which is
subject to some limitation such as interdict or serviduty, but in most cases it involves a
fideicommissum.
Other means of protecting interests in succession cont…

 A fideicommissum is established when a testator (A) bequeaths his farm to his son B, on
condition that the farm becomes the property of B’s son when B dies, A could take it
further by providing that the farm should then go to B’s grandson when B’s son dies. In
this, A is the testator and B the fideicommissaries.
 There are two(2) provisions of the Administration of estate Act 66 of 1965 which
considered the interests of the unborn in the law of succession.
 In the above Act, section 44 provides that if an unborn child is entitled to money or to
movable property his or her birth and this money or property is subject to the fiduciary
rights of someone else, the money or property cannot be paid out or delivered to the
person who has the fiduciary interest.
 Section 94 provides that the master of the high court may approve the subdivision of land
on behalf of the unborn heir. However, the muster has to ascertain whether the
subdivision is expected is expedient and whether or not the proposed subdivision is fair.
J) Birth control, maintenance, protection of interest & protection of
life.

 The specialization Act 44 of 1998 came into operation on 1 st February 1999.

 Sterilisation means a procedure whereby a person could be rendered permanently
incapable of fertilisation or reproduction.
 The Act explicitly states that a person may be sterilised if he or she is
(a) Capable of consenting, and
(b) At least 18 years of age
 The Act ensures that no person who is capable of providing the required consent may be
sterilised without his or her consent. (Section 2(2))
J) Birth control, maintenance, protection of interest & protection of
life.

 The Act requires that the consent must be given freely, and voluntarily and without any
inducement – Sec 4.
 It may be given only if the consenting person has:
(a) Been given a clear explanation and adequate description of the proposed procedure and its
consequences, and the reversible or irreversible nature thereof; and
(b) Been given advice that the consent may be withdrawn any time before understanding
procedure, and
(c) Understood and signed the prescribed consent form
J) Birth control, maintenance, protection of interest & protection of
life.

 A person underage of 18 may be sterilized if failure to perform the sterilization would

jeopardies his or life or seriously impaired his or her health.
 In this case permission is required from the person who is legally entitled to Act on behalf
of the child who is to be sterilized.
 An independent medical practitioner must also clarify in writing that sterilisation is in the
best interests of the particular child, and this must be evaluated by a panel consisting of a
psychiatrist, a psychologist or a social worker, and a nurse.
J) Birth control, maintenance, protection of interest &
protection of life.

 The above panel must consider the following:

i. The person’s age
ii. Whether there are any other safe and effective alternatives to sterilization.
iii. The person’s mental and physical health and wellbeing.
iv. The potential effect of sterilization on the person’s mental and physical heath wellbeing.
v. The nature of the sterilization procedure to be performed.
vi. The likelihood, that the person will become capable of consenting to sterilization.
vii. Whether the sterilization is in the best interest of the person to be sterilized.
viii. The benefits that the person may device from sterilization.
Maintenance

 If the father of the nasiturus is killed as a result of the delict of someone else , the child
can, after his birth institute an action for damages as a result of the loss of maintenance
against the person who killed his father.
 The basis on which the damages are calculated, is to put the child as far as maintenance is
concerned, in the position in which he would have been if his father had not been killed.
 In the same vein, the child would also be entitled to claim damages from the person who
had killed his mother unlawfully, and in culpable way while the child was not yet born,
provided, of course, that the child is born alive.
 In situations where a pregnant woman is divorced from her husband who is the father of
her unborn child the court may make provision in its order of divorce for the maintenance
of the child.
Personality interest

 In the case of personality interest, study through the case of Pintchin V Santam insurance
Co. Ltd ( 1963 2 SA 254).
Termination of pregnancy ( Protection of life abortion )

 The choice on termination of pregnancy Act 92 of 1996 came into effect on 1 st of

February 1997 and this repealed the abortion and sterilization Act 2 of 1975 in so far as
it relates to abortion.
 The abortion and sterilization Act prohibited Abortion with penal sanction except in
certain defined circumstances, such as when the continued pregnancy endangered the life
of the woman concerned.
 The termination of Pregnancy Act 92 of 1996 is now a legal document which makes it
legal during the first 12 weeks of Gestation.
 The termination of the pregnancy during the above mentioned may be carried out by a
medical practitioner, a registered midwife, or a registered nurse.
Termination of pregnancy ( Protection of life abortion ) cont…

 The Act provides for the termination of a pregnancy from the 13th up to the 20th week of
gestation, under certain circumstances.
 The termination of the pregnancy may then become carried out by a medical practitioner after
consultation with a pregnant woman and he or she Is of the opinion that:
i. The continued pregnancy would be a risk of injury to the woman physically or mental health, or
ii. There exists a substantial risk that the foetus would suffer from a severe physical or mental
health, or
iii. The pregnancy resulted from rape or incest; or
iv. The continued pregnancy would significantly affect the social or economic circumstance of the
woman.
Termination of pregnancy ( Protection of life abortion ) cont…

 The Act also provides for the termination of a pregnancy after the 20th week of gestation. In
this case, the medical practitioner should be of the opinion that this continued pregnancy :
i. Would endanger the woman's life.
ii. Would result in a severe malformation of the fetus.
iii. Would pose a risk of injury to the fetus.
 The Act places an obligation on the state to promote the provision of non mandatory and non
directive counseling before and after the termination of pregnancy.
 The termination of a pregnancy may take place only with the informed consent of the pregnant
woman, unless she is incapable of giving consent.
 If a woman chooses to terminate the pregnancy, nobody can stop her.
K)

 The consent of status in law of person, is concerned with a person's standing in the law. In
this standing is determined by all those attributes a person has, or a condition in which he
finds himself and the law attaches consequences.
 The competencies that flow directly from law must be distinguished from the powers that
the holder of a right has respect of the object of his right.
 The most important competencies that are traditionally distinguished are legal capacity,
capacity to act and capacity to litigate.
1. Legal capacity

 All human beings have this capacity irrespective of their personal qualities both a
newborn baby, an insane person and an insolvent person.
 However, there will only be a difference in their status if one can have rights and that the
other cannot have. For example, an infant cannot marry and therefore has no rights that
arise from marriage.
 No legal subject can be entirely without legal capacity, and it is these attributes that
characterize a legal subject.
 A team that can never have rights, duties and capacity is not a legal subject, but can be a
legal object.
2. Capacity to act.

 This is the capacity to participate in legal interaction, that is to perform valid juristic acts.
 A juristic act is a human act to which the law attaches, at least some of the consequences
desired by the party or parties performing the act.
 A child under seven years and an insane person, for example, have no capacity to act in
SA Law.
 This means that the law, for their own protection does not attach any validity to the
expression of will of such person.
3. Capacity to litigate.

 This is the capacity to appear in court as a party to a suit.

 There is a close correlation between capacity to act and capacity to litigate.
 A person cannot change the capacity arising from his status on his own. However, a person can change his
status in certain aspects, for example by marrying.
 Infant and insane persons cannot litigate on their own, but this cannot be done on their behalf by their
parents, guardians or curator.
 Conclusively, one can say that a person’s status determines his competencies, such as his legal capacity,
capacity to act and capacity to litigate.
 His status, in future is dependent upon all his attributes or the condition in which he finds himself and to
which the law attaches consequences.
 The other important factors which determine a person's status are domicile, illegitimacy, age, physical or
mental disability, prodigality, and insolvency.
The concept of domicile.

 Definition: domicile is that place where, in terms of the law, a person is determined to
reside for the purpose of exercising his or her rights and duties.
 A person's domicile plays a determining role in a large variety of that person's capacities
In private law, and in the following are some of the circumstances.
i. Matrimonial property regime: the matrimonial property regime of a marriage Including
the question whether the parties were married in or out of community of property, This
is determined by the legal system of the place where the husband was domiciled at the
time of the marriage.
ii. Role of law of succession; domicile plays a role in various aspects of the law of
succession, and respect of Intestate succession and Testate succession.
The concept of domicile cont…

 In the case of intestate where an estate , or part thereof, is left Intestate, devolution until
be governed by the domicile( Lex Loci domicili)At the time of his or her death. (25 SC
234).
 In the case testate succession, in respect of movable property which bequeathed by means
of a will, The place of domicile of the testator determines whether or not that testator had
the legal capacity to make a will.
 In the same vein, If it has to be determined whether the heir is completed to inherit the
movable property, it is again there Lex loci domicilli at the end of the testator’s death that
is decisive
 Yeah. Find a time. When campus? Yes. Do you have a banking app? How much money
do you have? I don’t have any cash. Can you please close the door?
The effects of jurisdiction of courts

 Domicile also plays a role in civil065 and criminal proceedings in court.

 It is the domicile of the defendant that will determine whether a particular court has
jurisdiction ( the legal capacity to make a ruling) in case at hand or concerned.
 Only the court situated in the area within which the person concerned is domicile, has
jurisdiction to the rule in matters regarding the status of that person.
 In the past, in the case of divorce, the woman accepts the domicile of the husband for the
case proceedings. But this has changed since the enactment The Domicile Act, 3 of 1992,
but the residents of either party in the area they stayed for a period of at least one year
prior to the court action, has stiction.
Kinds of domicile

 1. Domicile of origin, ( Domicilium originis)

 A person’s domicile of origin is the domicile which the law assigns to him at birth.
 In the past, the importance of the domicile of origin lay in the fact that if a person abandoned his Domicile of
choice without assuming a new domicile, Then his domicile of origin will be revived.
 In such a case, a peasant domicile was neither based on the place where he physically resided, nor was it
connected with his Intention, It was simply a domicile that was assigned to him by operation of law for
effectiveness.
 However, the above position. Has now changed with the Enactment of the Domicile Act, three of 1992, which
provides that no person shall Lose his domicile until he has acquired another domicile, whether by choice or by
operational flow.
 The app provides that a person's domicile of origin shall not Revive except if He acquired a domicile of choice
at the place of his domicile of origin, or if he or she is not capable of acquiring a domicile of choice and the law
assigns him his domicile Of origin because he is most closely connected with the place of domicile of origin.
 In short, the fact that a person's domicile of origin no longer revives means that this type of domicile is no
longer important in SA law.

Domicile of choice

 A domicile of choice is that domicile, which a person who has capacity to act has chosen
by himself Size of his own free will. This is by far the most important kind of domicile.
 Section 191) of the Domicile Act provides that any person Who is of Over the age of 18
years, as well as any person under the age of 18 years, who by law has the state of a
major, Is competent to acquire a domicile of choice regardless of such Person sex or
marital status.
 At common law a wife acquired the domicile of her husband at marriage and she
followed that domicile of her husband as often as he changed it, irrespective of whether
she was present at that particular place or had the intention of residing there permanently.
 The above is often referred to as domicile. Of dependence. However, with the Domicile
Act, their power situation has drastically changed.
(a) Requirements of a domicile of choice

i. The person must actually settle at particular place. [ that is the function requirement]
ii. He must have the intention of residing permanently at that place, ( that is the animus
requirement)
iii. These two requirements must, at some stage exist simultaneously, but need not come into
being simultaneously. A person may therefore first settle in a place and only later, form
the intention of residing there permanently.
Study the following case Laws

1. Cook V Cook 1939 CPD 314

2. Smith V Smith 1952 ASA 750(A)
3. Eilon V Eilon 1965 I SA 703(A)
3. Domicile by operation of law.

 Every human being who has capacity to act can acquire a domicile of choice. However,
children below the age of 18 and insane persons are incapable of acquiring a domicile of
choice.
 They are granted a domicile. By operation of law, as long as their are minority or insanity
continues.
a) Domicile of a child.

 At birth, every child is assigned a domicile, by operation of law.

 Section 2(1) of the domicile Act, 3 of 1992 provide that a person who is not capable of
acquiring a domicile of choice in terms of section 1 of the Act shall be domiciled at the
place with which he is most closely connected.
 Section 2(2) states that if a child has his home with one or both of his parents, the parent
home, concerned is the child domicile.
b) Domicile of an insane person.

 Formally, the courts held the view that an insane person retained the domicile he had
when he became insane.
 However, some authors were of the opinion that it would be mere effective for an insane
person to follow the domicile of his curator.
 The Act now makes it very clear that an insane person will now be domiciled at the place
with which he is most closely connected.
c)Persons who are not free to choose where to reside,
domicile or soldiers and civil servants.

 Before 1945, soldiers or sailors of a foreign country could not acquire a domicile of
choice in this country since the person's residence was not voluntarily but prescribed by a
foreign power.
 The question the court raised was whether the person had a Final and deliberate Intention
of abandoning his previous domicile.
 However, the decision made by both the Transvaal and Cape courts was that a soldier or a
sailor could acquire a domicile of choice in the country in which he or she was stationed. (
Study the case of Naville Vnaville 1957 SA 280 (C) )
d) Domicile of a prisoner.

 In general terms, Prisoners retained their last domicile before imprisonment and could not
acquire a domicile of choice in prison. Prisoners are temporary in prison Which means
they could not Form the necessary animus to acquire a domicile of choice in prison.
 However, in the case where a prisoner had been imprisoned for life, the prisoner acquired
a domicile of choice in prison.
e) Domicile of a prohibited immigrant.

 The residence relied on for the acquisition of a domicile of choice must be lawful. In view
of this and illegal immigrant will therefore not acquire a domicile of choice in South
Africa, even if he has animus to settle permanently.
 In the same vein, a person who is deported from South Africa loses his domicile in South
Africa, even if the person has animus revertendi Because his return would be unlawful.
 However, where a prohibited immigrant is openly permitted by authorities to reside in
South Africa, he may acquire a domicile of choice in South Africa.
f) The Domicile Act is not retrospective.

 All Acts or legislative law in South Africa are not made retrospectively.
 All laws are made prospectively.
 The Act will not affect any right capacity, obligation, or liability acquired by virtue of the
domicile, which a person had at any time prior to the act.
A) The effect of age on status.

 Age is one of the most important factors which influence a person status, and different age limits
influence a person status in different areas of the law.
 An infant comes into existence at birth with limited legal capacity, Without capacity to act, with no
capacity to litigate personally and no criminal responsibility.
 From the age of seven, a minor is no longer referred to as an infant and is able to enter into certain
contract with the consent of his or her parent or guardian.
 From the age of 10, a child must consent to his or her own adoption, and from the age of 12, a
minor can receive medical treatment without the consent of a parent or guardian, provided that the
child is mature enough and has that mental ability to understand the advantages, risk and
implications of the particular treatment.
 The age of puberty for girls is 12 and for boys it is 14 years, At this age they can, with the consent
of their parent or guardian as well as the Minister of Home Affairs, enter into a marriage.
A) The effect of age on status. Cont…

 From the age of 15, a girl no longer requires the consent of the Minister of Home Affairs
to enter into marriage.
 From the age of 18 years, all persons attain majority and all limitations based on age,
which previously affected that person’s status, falls away.
B2) Children's rights.

 Children's rights are specifically and trenched in the Bill of Rights. Section 28(1) gives every child the following rights:
 The right to a name and a nationality from birth.
 The right to family care, parental care, or appropriate alternative care when removed from the family environment.
 They write basic nutrition, shelter, basic health care services and social services.
 The right to be protected from maltreatment, negligence, abuse or degradation.
 The right to be protected from exploitative labor practices.
 The right not to be required or permitted to perform work or provide services that:
i. Inappropriate for a person of that child’s age, spiritual, moral, or social development.
ii. The right not to be detained except as a measure of last resort, in which case, In addition to the rights a child enjoys under
ss12 and 35, The child may be detained only for the shortest appropriate period of time, and has the right to be:
 kept separately from detained. I sent over the age of 18 years; and
 Treated in a manner, and kept in conditions that take account of the child’s age.
B2) Children's rights, cont…

 The right to have a legal practitioner assigned to the child by the state, and at state
expenses, in civil proceedings affecting the child, if substantial injustice would otherwise
result.
 The right not to be used directly in armed conflicts, and not to be protected in times of
armed conflict.
 Study the following cases:
a) Du Toit V Minister of welfare and population development, 2003 (2) SA 198 CC
b) Government of the republic of South Africa V Grootboom 2001(1) SA 46 (cc)
c) Center for child law V minister of justice and constitutional development 2009 (2) SACR
477
C) The legal status of infants.

 Right from birth, every person has legal capacity in the sense that he or she is the bearer
of competencies subjective rights as well as legal obligations.
 An infant has limited legal capacity. This means that he or she may not have certain rights
and obligations.
 An infant can hold very few of the offices which a major can hold. In the same
perspective, he or she can also have obligations which result from such rights, for
example. If they invent inherit a sum of money he or she has to pay tax on the income
derived from it.
C) The legal status of infants. Cont…

 Effects on capacity to act and Litigate.

• An infant has no personal capacity to act and cannot conclude any juristic acts, For example, an agreement. All
transactions which an infant undertakes, including the purchase of things like ice cream or sweet are avoid since the
law does not concern itself with trivialities and would not declare such a contract void.
• An infant cannot conclude an agreement even with the assistance of his or her parent or guardian, but his parent or
guardian must Act for him or her and on his or her behalf.
• An infant cannot accept gifts. The parent of Guardian, the court or the master of the High Court must accept the gifts
on behalf of the infant.
• It is usually a child’s mother or father who performs legal acts for and on behalf of the child, mainly because they
have parental responsibilities and rights in respect of the child.
• In situations where the child's parents were not named at the time of the child’s conception, birth or anytime in
between the conception, and birth then the father will only automatically acquire parental responsibilities and rights
if at the time of the child's birth, he was living with the mother of the child in a permanent relationship and he agreed
to the paternity and contributed to the maintenance of the child.
C) The legal status of infants. Cont…

 Persons other than the child’s father, or mother may also acquire parental responsibilities and rights agreement.
 When both parents of an infant are deceased, the person who has been appointed as Guardian in respect of the
Infant will act on his or her behalf. In the absence of the guardian, the High Court as upper Guardian can act on
behalf of the infant.
 When the parent or guardian concludes an agreement on behalf of the infant, a legal bond or obligation exists
between the infant and the other party and not between the parent or guardian and the other party.
 In the event of the infant or the other party failing to fulfill his or her part of the agreement, either the infant or
the other party can:
• Be compelled to perform by way of court order.
• In certain cases, cancel the contract on the grounds of breach of contract; and/or
• Claim damages to place the prejudice party in the position he or she would have been in if the agreement had
been properly fulfilled.
C) The legal status of infants. Cont…

 However. There are certain agreements that an infant cannot conclude at all, and those
agreements include;
• Engagement or marriage.
• An internuptial contract.
• Service contract in terms of employment.
 An infant who entered into agreement in which he or she cannot be bound is void.
Capacity to litigate.

 Section 14 of the Children Act stipulates that every child has their right to take a matter to
court and be assisted in doing so.
 The Children Act ensures that each child has access to court, whether by means of direct
access, such as when a curator ad litem or legal representative is appointed for the child.
 The Act places a corresponding duty on parents and guardians to represent children and to
assist them.
D) Minor effects on legal capacity.

 A minor has limited legal capacity which makes him or her incapable of holding the
following offices.
• Trustee of an insolvent estate.
• Director of a company.
• Director of a mutual bank.
• Position of a traditional leader.
D) Minor effects on legal capacity. Cont…

 A person who has attained the majority through marriage can be appointed to any of the
above-mentioned offices.
 A married minor qualifies as guardian of his or her children but cannot be appointed as
the guardian of somebody else's child.
 If a minor has the necessary knowledge and skills, he or she can act as somebody's agent
even without the consent of his or her parent or guardian because the minor binds the the
principle, and not him or herself in such a case.
D) Minor effects on legal capacity. Cont…

 Effects on capacity to act.

• A minor’s capacity to act can briefly be set out as following.
 A minor can have full capacity to act in order to perform certain legal acts. This capacity to act is provided for
either in the common law or by state, e.g., to open a bank account from 16 years or join a friend to society
from 16 years and above.
 In most cases, however, a minus capacity to act is limited and he or she accordingly, need the consent or
assistance of the parent or guardian to participate in any legal dealings.
 There are certain agreements or contracts to which a minor may not conclude, either with or without.
Assistance of his or her parent or guardian and in terms of which he or she has the capacity to act. For
example, accepting a gift. In this situation, the minor enter into an agreement without counter performance Is
absorbed from paying any debt.
 However, as soon as an agreement results in any obligation for the minor, the consent or assistance of the
parent or guardian is necessary.
D) Minor effects on legal capacity. Cont…

 Various ways in which a parent or guardian can assist a minor:

 The parent or guardian may assist a minor in the following ways:
 The parent or guardian of the minor can enter into an agreement on the minor's behalf.
 A minus. A minor may personally enter into an agreement with the consent of his or her
parent or guardian, and the consent may be given either expressively or tacitly. For
example, the parent or Guardian has knowledge of an agreement into which the miner has
entered into and has no obligation to it, it may be accepted that the agreement has been
tacitly approved. ( Study the case of Du Toit V Lotriet 1918 OPD 99 )
 The parent or guardian of the minor can ratify an agreement which the minor has entered
into without the necessary consent.
D) Minor effects on legal capacity. Cont…

 Consequences of an agreement entered into by a minor with the assistance of a parent or guardian.
 If a minor enters into an agreement with an assistance of His or her parent or guardian, the minor is
liable on the grounds of the agreement just like a major would have been.
 The agreement is fully enforceable by against the minor. In exceptional circumstances, the minor
can escape liability by relying on the legal remedy restitutio in integrum, Which means to restore to
the previous position.
 If the minor of the other party to the contract failed to fulfill their obligation In terms of the
agreement, they can oblige each other to do so by way of a count order, even cancel the agreement
and claim back the performance which have already been delivered.
 Damages can also be claimed to place the injured party in the position in which he or she would
have been had the agreement being properly carried out.
D) Minor effects on legal capacity. Cont…

 If the court orders a minor to comply with his or her part of the agreement and the minor
still fails to do so, the minor’ property will be attached.
 The assets attached will then be sold and the proceeds of the sale will be wed to pay that
which the minor owes.
 If the minor has no assets, the other party will get nothing because the parent or guardian
with only a few exceptions cannot be held liable for the minor’s debts, whether or not the
parent or guardian entered into the agreement on behalf of the minor.
D) Minor effects on legal capacity. Cont…

 Circumstances where a parent or guardian can only be held liable for the debts of a minor.
 If the debt was incurred for the maintenance of the minor.
 If the parent or guardian did not bring the facts that he or she was acting for and on behalf
of the minor to the attention of the other contractor.
 If the parent or guardian stood surety for the debt.
 If the minor entered as the parent’s or guardian’s representative.
D) Minor effects on legal capacity. Cont…

 Possible remedies available to the minor.

• Defense that the plaintiff is also in default and may therefore not claim performance. ( Exceptio non
adimpleti contracts )
• Restore to the previous position. ( Restitutio in integrum )
 Restitutio in integrum is an extraordinary legal remedy which is available to a minor in the following
circumstances:
i. The miner must have concluded the agreement with the consent or assistance of his or her parent or
guardian or the parent or guardian must have entered into the agreement into which the minor had entered
into without the necessary assistance.
ii. Normally the minor must be liable in terms of the agreement. If a minor should enter into an agreement
without The consent or assistance of the parent or guardian. The minor would not need to use a restitutio
integrum to escape liability, because he would not in any event, be liable in terms of the agreement.
iii. A minor may also rely on restitution in integrum. In a case where the minor entered into an agreement with
the consent of the court.
iv. The agreement must have. Been prejudicial to the minor at that moment, it was entered into. ( Study the
D) Minor effects on legal capacity. Cont…

 Consequences of agreements entered into by a minor without the assistance of your parent
or guardian.
 General rule is that a minor is not liable in terms of an agreement If he or she did not have
the assistance of the parent or guardian at the time of entering into the government.
 A minor may enter into an agreement with another person without the necessary assistance
by any obligation which arises from the agreement and in terms of which the miner must
perform is merely a natural obligation and not enforceable.
 The above agreement is not void since the other party is obliged to perform to the minor.
 The obligation, in terms of which the other party is obliged to perform, is a civil or rather
than enforceable obligation, and the minor will oblige the major party to perform through
court order, but the minor cannot be forced to perform.
D) Minor effects on legal capacity. Cont…

 Agreements for which a miner has no capacity to Act.

 A minor under the 15 years of age or below, the school leaving age, may not conclude an
employment contract. Consequently a parent may not assist a minor to conclude such a
contract.
 A minor may not work underground in a mine unless the minor is over the age of 16 years
and the work forms part of vocation endorsement or training.
 Minors who have not yet reached the age of puberty, that is 12 years for girls and 14 years
for boys may not marry at all.
 A minor needs the consent of both parents and any other person. To act as a guardian to
enter into marriage unless sole guardianship has been granted by court to one parent, in
which case only that parent’s consent is sufficient.
D) Minor effects on legal capacity. Cont…

 Effects on capacity to litigation.

 In the following situations, minor has full capacity to litigate.

a. If the High Court grants him or her leave to litigate.
b. When maintenance is claimed of a minor relating to the maintenance of his child.
c. If a minor wants to get married and applied to the court for substantive consent as upper
Guardian.
D) Minor effects on legal capacity. Cont…

 Effect on the electoral and criminal liability.

 A is person accountable for his or her unlawful Acts if he or she has the mental ability to distinguish between
right and wrong, and to act in accordance with such distinction.
I. In law of delict, a person is accountable for his or her unlawful act and to conceptualize this in the case of the
minor. ( Study the case of Kleber V Santam vesekerings (1983 (1) SA 381) , also see Eskom holdings Ltd V
Hendriks (2005(5) SA 503 9SCA) )
II. In law of delict, a child over the age of seven is presumed not to be accountable for his or her wrongful doings.
III. A child over the age of 14 years is presumed to be accountable for his or her and lawful act.
IV. A minor may be held liable in delict on a non-fault basis, for example if he or she is the owner of a pet that
caused damage to another.
V. A parent may incur the liability for damages caused by a child if he or she does not act like a prudent parent
taking reasonable steps to prevent damage.
D) Minor effects on legal capacity. Cont…

 Termination of minority.
 Attainment of the age of minority. The age of minority is determined by statute.
Previously, the age of my majority was 21 years, but since first July 2007 it is now 18
years and this is when a minor terminates his or her minority to majority.
 A minor reaches majority. When he or she concludes a valid gap or customary marriage.
 If the marriage is dissolved either by death or divorce before the person reaches the age of
18 he or she retained full capacity to act. In other words, minority is not revived.
D) Minor effects on legal capacity. Cont…

 Constitutional reforms in law of person.

 The relevance of chapter two of the Constitution ( Bill of rights) In promoting human
dignity equality, non-discrimination and freedom of association.
1. regulatory context of black economic
empowerment.

A. The Constitution of the Republic of South Africa of 1996.

 The Constitution is the law behind the laws and is, It grants government the right to
introduce legislative Police designed to advance previously disadvantaged people through
procurement.
 Section 217 states the following. :
 When an organ of state or any other institution contracts for goods and services, it must do
so in accordance with the system. Which is fair, equitable, transparent, competitive and cost
effective.
 Subsection 1 does allow organ of state or institutions to implement procurement policy that
provides preference in allocation of contracts and respect of protection or advancement of
persons or categories of persons disadvantaged by unfair discrimination.
1. Regulatory context of black economic
empowerment. Cont…

 National legislations must prescribe a framework within which the policy of procurement
is implemented. Section 9 of the Constitution reads as follows. :
 The Constitution and the concept of equality.
 Section 9 of the Constitution of the Republic of South Africa is as follows. :
1. Everyone is equal before the law and has the right to equal protection. Any benefits of the
law?
2. Equality includes the full and Equal Employment of all rights and freedoms. The state
may not unfairly discriminate directly or indirectly against anyone on one or more
grounds, including race, gender, sex, pregnancy, marital status, ethics, and social origin,
color, sexual orientation, age, disability, Believe, language and birth.
1. Regulatory context of black economic
empowerment. Cont…

 Section 9 of the Constitution of Republic of South Africa reads as follows.

1. No person may and fill it discriminates directly or indirectly against anyone on one or
more grounds. In terms of subsection 3.
2. Discrimination on one or more of the grounds listed in Subsection 3 is unfairly, unless it is
established that the discrimination is fair.
1. Regulatory context of black economic
empowerment. Cont…

 To achieve the above objective, the following measures must be adopted. :

a) All employers are required to take steps to end unfair discrimination in their employment
policies and practices.
b) Medical testing of employees and psychometric testing are prohibited unless justified
c) Designated employers must report to the Department of Labor on their implementation
and progress of employment equity.
d) An employer who intends to contract the state must comply with its employment equity
obligations.
1. Regulatory context of black economic
empowerment. Cont…

 The following case laws. :

a) SAA V Hoffmann
b) Motala V University of Natal 1995 (3) BCLR 374(D)
c) Pretoria City council V Walker 1998(2) SA 363 (CC)
THANK YOU