Law of Persons

The law of persons is that part of private law which 1. determines which entities are legal subjects, 2. when legal personality begins and ends, 3. what legal status involves (different classes of legal subjects) . and what effect various factors have on a person!s legal status (legal status of each class). "n respect of rights, we are concerned with a dual relationship# i. Subject-subject relationship $ a right and corresponding obligations ii. Subject-object relationship $ bearer of the right and the object of his right. Legal subjects and legal objects "n the field of law, there is a difference between %legal subjects! ( persona iuris) and %legal objects!. &egal subjects are people recogni'ed by law as having rights, duties and capacities bestowed upon them. The law then grants legal personality on such subjects. (hereas legal objects are entities that have economic value and which the law has not bestowed the capacity to have rights, duties and capacities. &egal objects can therefore not parta)e in legal and commercial transactions. Categorizing Legal Subject &egal subject can be divided into two categories# 1. *atural persons (persona naturalia) 2. +uristic persons (juristic persona). &egal subject is a general term used to refer to all entities that are recogni'ed by law, including both juristic and natural persons. , natural person is a human being discernible through the intelligence and subject to physical laws, regardless of a person!s age, mental capacity, or gender- they are recogni'ed as legal subjects. , juristic person, sometimes )nown as a legal person, is a legal entity through which the law allows a group of natural persons to operate in ways resembling a single composite individual for certain purposes. , juristic person enjoys a separate e.istence independent from that of its members or the natural persons that created it. Categorizing Legal Objects There are perhaps five to si. categories of legal objects. 1. /orporal things These are separate, tangible items which are susceptible to human control and which are of value to people. 0g# 1otor vehicle

2. 2erformance These are human acts by which something is given, done or not done. The right to performance is a personal right or a claim. 0g# , has obligation to deliver, 3 has obligation to pay. 3. 2ersonality property , person!s right to his good name (reputation), honor, personal integrity are e.amples of personality rights. . "mmaterial property (intellectual property) ,n artist!s right to his painting (copyright). ,n author!s right to his boo)s (copy right) ,n inventor!s right to his invention (patent right). These are products of the human intellect. The Beginning and End of Legal Personality &egal personality is conferred on legal subjects only. , natural person!s legal personality commences at birth. 2rior to birth the fetus is not a legal subject. "t simply forms part of the mother!s viscera. There are certain re4uirements to ac4uire legal personality# i. 3irth must ta)e place- it is a necessity to have a separation between the mother and the child. 5owever, there is no re4uirement that states the umbilical cord should be cut. The child must be alive after separation. The child is obliged to breathe in order to show signs of being alive. 5ydrostatic test. The third re4uirement is open to debate as to whether it is necessary. /ertain authors proclaim that the child should also be %viable! before they can ac4uire legal personality. This means that the child must of reached a certain developmental stage (an e.istence separate from its mother) before they can attain legal personality. 6urthermore, a registration of birth should proceed.

ii. iii.

iv.

Registration of Birth The 7irector 8eneral of 5ome ,ffairs must be notified of the birth of every child who was born alive. The notification must be given within 39 days of the child!s birth. The Interest of the nborn Child The law protects the potential interests of the nasciturus by employing the fiction that the fetus is regarded as having been born at the time of conception whenever it is to her advantage. The &atin phrase :nasciturus pro iam nato habetur, quotiens de commodo eius agitur; refers to law that allows a fetus to inherit if it is to benefit her.

!asciturus Rule and !asciturus "iction The phrase nasciturus rule and nasciturus fiction are sometimes both used as synonyms, however they have different meanings. The nasciturus rule is used to refer to circumstances which would occur and be to the benefit of the fetus if she had been born. This means that the fetus is regarded as a legal subject from the date of her conception. Therefore legal personality sometimes commences at birth or at conception. The nasciturus fiction refers to a fetus that is regarded as having been born at the time of conception if the issue at hand is to her advantage. The rights of the child who will be born is given protection. <outh ,frica follows the nasciturus fiction, henceforth it can be said that in *amibia we follow the same application. This fiction has certain re4uirements# i. ii. iii. ,n advantage=benefit that accrues to the fetus if he=she was alive The child must have been conceived <ubse4uent birth (the child must have been born alive)

>*asciturus ?ule# where there is a benefit for the child# at the time of conception, the child becomes a legal subject. >*asciturus 6iction# (hatever benefit will have to be on hold until the child is born alive. /,<0# 0. 2arte 3oedel <teen)amp "n this case, a will provided that the residue of the testator!s estate was to devolve in e4ual shares to his daughter # and her children of her first generation at the time of his death. 1 had two children, $ and %, and was pregnant with a third child (P), who was born @ months after the death of the testator. The /ourt regarded P as alive at the date of the testator!s death and was entitled to share the inheritance. "n this case, in can be clearly seen that the nasciturus fiction was applied here for the benefit of the child born. /,<0# 0. 2arte ,dministrators 0state ,small "n this specific case, the testator made a will in 1A3B which he be4uest a monthly fee of CD for his 3 sons# E& ' and (, and C3 for each of his daughters# )y& )*& + and ,. The @ children were all alive at the time. "n 1A 2 when he e.ecuted a codicil, E had died but 3 more children were born# (a& S and R. The testator simply said that CD were to be paid to the sons per month, and C to his daughter. ,nother daughter " was born. "n 1A the testator died, and another son I was born after his death. The 4uestion the court was faced with was whether or not " and I were entitled to inherit. "n this case the /ourt applied the nasciturus fiction and held that they were entitled to inherit, as it was to their benefit and was the intention of the testator. /,<0# 2inchin v <antam "nsurance /o. &td "n this case the 2laintiffs sued <antam as agent of what was the predecessor of the present

?,6 for damages, where the pregnant mother was involved in a motor vehicle accident, and her child was subse4uently born and suffered from cerebral palsy. The /ourt in this case held on the facts that the 2laintiffs had not succeeded in establishing that the child!s cerebral palsy was caused by the injuries which her mother had sustained in the accident. 5owever, the /ourt in this case did conclude that a child has an action for damages in respect of injuries sustained while a fetus. The /ourt applied the :nasciturus fiction;, derived from ?oman law. /,<0# ?oad ,ccident 6und v 1tati "n this case, the /ourt had to deal with whether or not a child in utero which suffers an injury and, after birth, suffers from conse4uence of that injury, has a right to sue for damages. The /ourt held that it would be intolerable if our law did not grant an action to a child after birth for damages in respect of preFnatal injuries suffered by that child. "n this case, the /ourt further cited the case Montreal Tramways Co v Leveille in which the +udge said that it is but natural justice that a child, i! born alive and viable, should be allowed to maintain an action in the courts !or injuries wrong!ully committed upon its person while in the womb o! its mother"# The /ourt held that the insured driver clearly owed a duty of care to Gu)hanye even though she was in utero at the time.

Effect of Presumption of Death

"f a court pronounces a presumption of death this does not mean that the person is dead. There is only a rebuttable presumption that she is dead. ,s the presumption is rebuttable, the court which pronounced the presumption can set aside the original order if, on the basis of further evidence, it becomes clear that the missing person is in face not dead. 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. 3ut the heirs must furnish security for the restoration of the property, or its value, should the missing person return. , presumption of death automatically dissolves the person!s marriage. "n other words, the personal and patrimonial conse4uences of the termination of the marriage are e.actly the same as if the marriage were dissolved by the death of one of the spouses. (hen you die, you are no longer a legal subject. The law protects 2 interests of a dead person# 1. ?espect for the dead 2. 7isposal of the body (for public health) Hnder private law (law of persons) it is important that proof of death is submitted. 1. To enable the li4uidation and distribution of the deceased!s estate=assets to the heirs. 2. 6or the dissolution of the institution of marriage. (to enable the spouse to move on)

>, death certificate is necessary to prove that a person is dead. Hnder what circumstances you would be presumed deadI 6or the purposes of the law of succession, there are instances where you may apply to the 5igh /ourt for an application for an order presuming that a certain person is dead. 6or such an order to be granted, the /ourt will loo) at certain factors. 1. The period of absence# in our law, there is no defined period 2. The age of the person when he=she disappeared. 3. The circumstances of his disappearance. . (hether that person was e.posed to any calamity (eg# sleep wal), epileptic) (whether he suffered from anything that disturbed his calamity) J. 5as the person disappeared in a period of unrest (war, disaster, etc) B. The occupation of the person (ha'ardous=safe) (hen the person disappears in times of tran4uility (peace), the onus on you will be higher as to convince the court that the person is dead. 0ven if the person has disappeared for a very long time. "n order for you to succeed you have to convince the court on a balance=preponderance of probabilities. /,<0# 3eaglehole, ?e 1A9D T< A 3 is a miller living in <omersethire in 0ngland. 5e had not been heard of by his relatives for a period of 1J years. 5e had not been e.posed to any peril and did not follow a dangerous career. "f he is still alive, he would have been B years old at the time of application. The court found that the evidence brought before it was not sufficient to presume his death.

/,<0# 0. 2arte 8raham 1AB3 ( ) <, 1 J "n terms of her will, in the event that she died, her son would inherit her estate. 3ut if her son predeceased her, then her whole estate would devolve on her mother. The testatri. and her son were both )illed on an air disaster. The e.ecutri. awarded the whole to the testatri.!s mother, but the registrar of deeds needed an order from court stating that the son died before or simultaneously. The order was granted, stating that the testatri. and her son died simultaneously.

Status
The word %status! is derived from the &atin 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

conse4uences. The most significant attributes which determine a person!s staturs are# 7omicile, e.traFmarital birth, youth, physical illness or incapacity, mental illness or incapacity, into.ication, prodigality and insolvency. Legal Capacity &egal capacity is the capacity to have rights and duties. ,ll human beings have this capacity. 7istinction between the capacity to have rights and duties, and the particular rights and duties that a specific person has at a specific time. 0g# /hildren 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 )ct /apacity to act refers to the capacity to perform valid juristic acts. , juristic act attaches at least some of the conse4uences. "t 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. 2eople 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 /apacity to litigate is the capacity to appear in court as a party to a lawsuit. Capacity to be held accountable /apacity to be held accountable for crimes and delicts. This capacity is greatly influenced by a person!s age, mental conditions, intent (dolus), negligence (culpa). The person must be doli capa$ or culpa capa$. "f some one is too young, then she cannot be held accountable for the acts she has committed.

Domicile
7omicile is the place where a person is legally deemed to be constantly present for the purpose of e.ercising her rights and fulfilling her obligations, even in the event of her factual absence. To ac4uire domicile in the legal sense the person must have the intention of settling at the particular place for an indefinite period. 7omicile and citi'enship coincide. I*portance of do*icile Le$ domicilii is significant. "t determines whether a child is legitimate or e.traFmarital. Le$ 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.

(hy is it important to )now where the person is domiciledI 1. it determines the jurisdiction of court 2. Kour right to enter into a contract -0very person must have a domicile at all times. The 7omicile ,ct provides that no one loses her domicile until she has ac4uired another domicile. $ifferent Types of $o*icile 1. 7omicile of Lrigin 2. 7omicile of /hoice 3. 7omicile by Lperation of &aw $o*icile of Origin .domicilium originis) This is the domicile the law assigns to her at birth. The 7omicile ,ct provides that no one loses her domicile until she ahs ac4uired another domicile, whether by choice or operation of law. /,<0# 8rindal v 8rindal 1AA@ ( ) <, 13@ , domicile of origin does not revive automatically if that person intends to abandon his or her previous domicle. The person retains the domicle he or she ahs at that stage until he or she ac4uires a new one, whether by choice or operation of law. $o*icile of Choice , domicile of choice is that domicile which someone who has capacity to act has chosen for herself by e.ercising of her own free will. "t is the most important )ind of domicile. , person over the age of 1D years (or having the status of a major) and having a mental capacity to ma)e rational choices are part of the re4uirements to attain a domicile of choice. 5owever, there are two more re4uirements# 1. The person must actually settle at the particular place (!actum) 2. The person must have the intention of residing permanently at that place (animus) These two re4uirements must at some time e.ist simultaneously. Factum re/uire*ent This is viewed objectively. *o specific period of physical residence is re4uired but the person must not simply be visiting the place. The courts sometimes ta)e into consideration the duration of the physical presence to infer from whether the person had the intention of remaining at that specific place. Kou must actually settle at the place where you choose to domicile.

/,<0# /oo) v /oo) 1A3A /27 31 "n order to ac4uire 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. "t should be noted that although these re4uirements must at some stage e.ist simultaneously, they need not come into being simultaneously. Animus re/uire*ent This is a subjective test. "n other words, the intention of the particular person is determinedthe intention not to leave the particular place, and the intention of residing permanently at the particular place. >the problem with this re4uirement is %intention!. /,<0# +ohnson v +ohnson 1A39 (1) ,7 3A1 The intention necessary for ac4uiring a domicile of choice e0clude all conte*plation of any event in which the residence would cease. /,<0# 0ilon v 0ilon 1ABJ (1) <, @93 There should be fi.ed and deliberate intention to abandon his previous domicile, and to settle permanently in the country of choice. <trict interpretation

$o*icile by operation of la1 ,nyone who does not have the capacity to ac4uire a domicile of choice at the place with which she is most closely connected. The law assigns a domicile by operation of law for as long as their minority or mental incapacity lasts, and that domicile is the place with which the particular person is most closely connected. This type of domicile is called a domicile by operation of law or an assigned domicile. /hild $ a person under the age of 1D