The South African Law of Persons provides law students with a thorough understanding of the principles of the law of persons. In a concise and comprehensive manner, the publication includes discussion of the implications of the constitutional principles of the law of persons. The award was received for Law of Persons. She is a Professor of Law at Unisa and has extensive experience in the fields of law of persons, family law and child law. Airlink wireless n usb adapter driver. The succinct and balanced nature of the contributions makes this title attractive to a wide audience of academics, students and practitioners with an interest in this remarkable legal system.
Conventional thinking teaches that the absence of liability - in particular contractual invalidity - is itself the reason for the restitution of transfers in the South African law of unjustified enrichment. However, this book argues that while the absence of a relationship of indebtedness is a necessary condition for restitution in such cases, it is not a sufficient condition.
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In the law of persons we study the legal subject. We ask who he or she is, how he or she comes into being, what his or her legal position is, and how he or she comes to an end in the eyes of the law.
To put it another way, the law of persons determines. The common-law requirements are that the association must have a continuous existence irrespective of the fact that its members may vary, it must have rights, duties and capacities or be able to have rights, duties and capacities, and its object must not be the acquisition of gain Heaton p 6.
Self-assessment questions 1 Give a definition of the law of persons. Conclusion After studying this study unit, you should be able to give a definition of the law of persons, and explain the two classes of legal subjects that are distinguished in our law, namely, the natural person and the juristic person.
In the next study unit we shall revise study units 1 and 2. We strongly advise you to do this revision, as it will help you to understand this work properly and give you a good basis for your preparation for the examination. We recommend the following steps to facilitate your revision: 1 Revise the table of contents of the previous study units to form a clear idea of the content of these study units.
When you prepare for the examination, these notes will be of great value. Check your understanding by way of the summaries prefacing and concluding each study unit: Have you achieved what you set out to do?
Consult the discussion forums on the myUnisa site regularly and ask for additional clarification if needed. It could also be that other students are already discussing the content you would like more clarity on. You must be able to not only answer direct short questions but also the essay-type and problem-type questions on each study unit, if applicable.
Answer each question twice: first by consulting your reading and your notes and then under examination conditions. When you are satisfied that you can answer the questions with relative ease, you may proceed to the next study unit. For birth to be completed it is necessary that the umbilical cord be severed. Please take note that the preponderance of authority shows that the third requirement mentio- ned in Heaton, pages 7 and 8, does not apply in our law.
For birth to be complete it is not necessary that the umbilical cord be severed. The statement is thus false Heaton p 7. What objection does she have to this requirement? Any medical evidence by which life may be proved should be admissible when the issue of whether a child was born alive is to be decided for purposes of determining whether the child obtained legal personality Heaton p 7.
The Births and Deaths Registration Act 51 of contains certain prescriptions for the registration of the births of children born of married parents and of children born of unmarried parents. Make a short summary of the most important sections of this Act.
Use only Heaton pp 8—12 and the discussion above as sources. In your summary you should have mentioned which births have to be registered and by whom. You should also have explained under whose name a child born of married parents and a child born of unmarried parents must be registered, and under what circumstances the registration of the birth of a child born of unmarried parents may be changed.
Self-assessment questions 1 Discuss the legal requirements for the commencement of legal personality. Conclusion In this study unit we discussed the two requirements for the beginning of legal personality. We saw what test is used to determine whether a child lived after birth.
We also paid attention to the provisions of the Births and Deaths Registration Act 51 of In the next study unit we shall discuss the interests of the unborn child nasciturus. Heaton pages 12 to Ex parte Boedel Steenkamp Casebook [1]. A nasciturus is a conceived but unborn child. What is a fiction? Please take note that a fiction is something that is imaginary, a presumption or an assumption that is not based on fact.
For example, when applying the nasciturus fiction, the unborn child is regarded as a living person, although it has not yet been born. If it appears in a specific case that, had the nasciturus already been born, he or she would have had certain claims or rights, the legal position is kept in abeyance until the nasciturus does in fact become a person, or until it becomes certain that no person has developed from the nasciturus.
This only means that the interests are kept aside until the child is born, and at birth the child receives the interests. Should the interest that the nasciturus receives be a testamentary benefit for instance, the division of the estate is remanded until the nasciturus is born.
This condition will be complied with should the child and a third person, for example a parent, benefit together. The benefit must not, however, exist only to the advantage of a third person. On pages 12 and 13 Heaton refers to examples of cases where the nasciturus and a third person will benefit together and where only a third person will benefit.
Of course you could also have mentioned your own examples. An example of a situation where the application of the nasciturus fiction will be to the advantage of only third persons is where the unborn child would have been entitled to an inheritance had he or she been born when the testator died.
If an unborn child is born alive and then inherits an estate large enough to support him or herself, the parents will not be liable for his or her maintenance. In this way they will also benefit from the application of the nasciturus fiction. In such circumstances the fiction will indeed be applied, since the benefit which the parents derive flows from the application of the fiction in favour of the nasciturus.
Our law proceeds from a general principle and protects any conceivable interest. She points out how important it is to distinguish between testate and intestate succession. Indicate in each instance whether C, who was already conceived at the time of the death of the testator, but was only born alive after his death, may inherit.
Indicate your choices by selecting yes or no in the appropriate block. With reference to clause b , C will thus also be able to inherit.
With reference to clause c , C will not be able to inherit, because only beneficiaries who have specifically been mentioned A and B will be able to inherit Heaton p With reference to clause d , C will be able to inherit.
Heaton pp 13— Also see the feedback in the activity below. The institution is known as a fideicommissum, B is known as a fiduciarius, and C and D are known as fideicommissarii Heaton pp 14— The court held that a mother could not enter into such an agreement on behalf of her child and that the agreement was contrary to the public interest.
The court thus refused to sanction the agreement. Heaton deals with this case on pages 15 and She explains that this rule is not based on the nasciturus fiction, but is merely a common-sense approach based on expediency. You have to understand the reason for Heaton saying so, and also the argument with regard to the breach of section 9 of the Constitution the equality clause. Lastly Heaton explains why acceptance that a parent cannot have parental responsibilities and rights over his or her unborn child does not affect the application of the nasciturus fiction in the field of succession.
You have to study this decision as discussed in Heaton and understand the criticism against it. Give authority for your answer. The damages are calculated on the basis that the child is placed, as far as maintenance is concerned, in the position he or she would have been in had the father not been killed Heaton p A delict or unlawful deed is an unlawful i. As will be noticed from Heaton pages 17 to 19, the extension of the nasciturus fiction to claims for prenatal injuries was criticised by several authors.
As a result of this Supreme Court of Appeal case all future claims for prenatal injuries will have to be based on the ordinary principles of the law of delict, and not on the nasciturus fiction.
The nasciturus fiction will, however, still apply to other areas of the law. Recently this question came before our courts, and has now been resolved. Now do the following activity: a Write down the four components that a summary of a court judgment must consist of. Your summary must contain the four components written down for a above and must be more or less one page long. Do not worry if at first your summary is longer than one page.
Try again, until you can summarise the judgment in more or less one page. This case is included in the Casebook [2]. The Road Accident Fund raised a special plea. It contended, firstly, that an unborn child is not a person and is therefore not entitled to compensation and, secondly, that because an unborn child is not a person, a driver does not owe a duty of care to an unborn child.
The special plea was dismissed by the court a quo. The Fund then appealed to the Supreme Court of Appeal. The legal question consisted of two parts, namely: Does Z have a claim against the Road Accident Fund for the damages resulting from her disabilities? Should such an action be allowed by using the nasciturus fiction, or by using the ordinary principles of delict?
The Supreme Court of Appeal decided that it would be intolerable if our law did not grant an action for prenatal injuries, and that such an action should be based on the law of delict. The appeal was thus unsuccessful.
The assertion that the driver of the vehicle did not owe Z a legal duty because she had not yet been born must be rejected. As a result of this judgment, all future claims for prenatal injuries will have to be based on the ordinary principles of the law of delict, and not on the nasciturus fiction.
The nasciturus fiction will still apply to other areas of the law. She also explains what is meant by guardianship and care. As in the case of maintenance for a child who is still to be born see 5. On pages 19 and 20 Heaton explains why parental responsibilities and rights cannot arise before a child is actually born.
Because a parent does not have parental responsibilities and rights in respect of his or her unborn child, a parent who wanted to negotiate a benefit for his or her unborn child would have to use a contract for the benefit of a third party. On pages 19 and 20 Heaton explains how a contract for the benefit of a third party works and how it can be used to obtain a benefit for an unborn child. The nasciturus fiction can obviously not be used because an aborted foetus will never be born alive.
On pages 20 and 21 Heaton discusses the rules regulating the termination of pregnancy during the following periods: — during the first 12 weeks of the gestation period — from the 13th up to the 20th week of the gestation period — after the 20th week of the gestation period 5.
She distinguishes between mentally able women and mentally disabled and unconscious women. The plaintiff argued that certain sections of the Choice on Termination of Pregnancy Act 92 of were unconstitutional because they permitted a woman under the age of 18 years to choose to have her pregnancy terminated without parental consent or control.
The court rejected this argument. She further explains why any constitutional challenge by the father of the provision in the Choice on Termination of Pregnancy Act, which grants the woman the sole right to decide on the matter by requiring only her consent to the termination, would fail. They argue that if a situation arises where it would have been to the advantage of the unborn child had he or she already been born, all the rights that a normal person would have had must also be afforded the unborn child.
The unborn child is thus a legal subject as from the date of his or her conception whenever his or her interests are at issue. He or she must also subsequently be born alive. The unborn child is thus not regarded as a legal subject Heaton pp 27— Fiction Rule a At what moment does legal personality begin according to the supporters of the nasciturus fiction and the nasciturus rule respectively?
B has one other child, Y. Discuss with reference to authority. With reference to case law, discuss the possibility that their action may include an action on behalf of a foetus. He wants Mary, John and their child to be co-owners of the business. Can John or Mary accept co- ownership of the business on behalf of their unborn child?
She has no money to support the baby and wants an abortion. Advise her fully with reference to authority. How to answer an essay or problem-type question Nota Bene: You will notice that we have included an essay and a problem-type question above. Essay-type questions are direct questions which must be answered in essay form, and problem-type questions are questions where we give you a set of facts and base either short questions or an essay question on these facts.
For those of you who are unsure how to answer an essay or problem-type question, we include some guidelines on how to answer these types of question. We would like to help you to learn how to answer essay-type questions and problem-type questions through practise, and with a little guidance on our side. Essay-type questions e. This includes identifying the problem and direct questions which defining what you have identified.
Authority can include case law, statutory law, opinions of legal writers, etc. Here you must refer back to the question and give an answer. Example We will now illustrate how to answer an essay-type question by using question 4 above as an example.
You should discuss the following in your answer:. Introduction: Here we are dealing with the protection of the interests of the unborn child. You had to explain what the nasciturus fiction means, how it operates and what its requirements are Heaton pp 12— You also had to mention that any possible potential interest of the nasciturus is protected, that there is no numerus clausus final list of interests, and that one of these interests is the right to physical integrity.
Discussion: You will find this section of the work in Heaton pages 16 to You had to explain that everyone has certain personality rights, one of which is the right to physical integrity. When one person injures another as a result of a culpable and unlawful act, he or she is violating the physical integrity of the other person.
The injured person then has the right to claim damages and reparation from the person who injured him or her. In the Road Accident Fund case Casebook [2] , the question that arose was whether the rights of the unborn child can be protected in cases like these.
Conclusion: Conclude by explaining why the different views on whether the nasciturus fiction should have been applied in these circumstances are no longer relevant, and what the law currently states. Problem-type questions e. As we explained above, the answering of problem-type sets of facts on which questions are based questions, just like the answering of essay-type questions, is a skill which, like any other skill, improves with practise.
Below are the steps you must follow when answering such a question: 1 Identify the problem that the question deals with. Authority can include statutory law, case law, opinions of legal writers, and so on. In other words, you will have to apply what you have discussed to the facts. Also see the tutorial letter that deals with the answering of examination and assignment questions, in which we give you a few examples to illustrate these principles.
Example Now try to answer question 1 above by following the steps discussed above. Your answer should be about two written pages long. You must discuss the following in your answer:. Identification of problem: Here we are dealing with the protection of one of the interests of the unborn child, namely, that the unborn child may inherit testate.
Relevant definitions and descriptions: As we deal here with, inter alia, the question of whether the nasciturus fiction must be applied or not, you must describe the fiction, and mention the requirements for its application Heaton pp 12— Discussion of relevant legal principles and authority: You should have discussed, with reference to case law, the question of whether the unborn child may inherit testate by using the nasciturus fiction Heaton pp 13— You should have pointed out that it is important to distinguish between intestate and testate succession.
Intestate succession means that the deceased died without making a will, and testate succession means that the deceased died leaving behind a valid will. In this question we deal with testate succession. You should have explained that when a testator leaves a valid will, effect must be given to the provisions of the will. The intention of the testator is therefore important.
This intention must be determined on the basis of the wording of the will. If it is obvious that the testator intended that a nasciturus should not inherit, this intention should be carried out. If the will is silent about the nasciturus, the nasciturus, once he or she is born, should inherit as if he or she was already alive when the testator died.
The next step would have been to discuss your prescribed case Ex parte Boedel Steenkamp 3 SA O Casebook [1] , where the facts were similar to those in the question under discussion. The court held that the unborn child was entitled to inherit, along with the daughter and her other children. You should have discussed the criticism in Heaton pages 14 and 15 in this regard. Conclusion This study unit dealt with the nasciturus fiction.
We paid specific attention to the meaning of the fiction, the requirements for its application, and the different fields where the fiction may possibly be used. We also looked at the question of whether the nasciturus is a legal subject. In the next study unit we shall discuss the end of legal personality. Heaton pages 28 to Re Beaglehole Casebook [5].
What criteria are applied in our law to determine when a person is legally dead? When the legislature enacted this Act, it adopted the criterion of brain death as the legal standard in so far as the provision of health services, donation of corpses or specified tissue in corpses, post-mortem examinations, and the removal of tissue at post-mortem examinations are concerned.
This is in keeping with the prevailing views in modern medical practice on when death occurs. If the Act does not apply, the courts may, as in the past, rely on medical evidence Heaton pp 28— However, a problematic situation arises when a person disappears and it is not certain whether he or she is still alive.
In such cases the presumption of death is used to settle this unsatisfactory state of affairs. Here we distinguish between two different procedures for obtaining a presumption of death order. There are certain statutory provisions that govern the expression of the presumption of death order. In terms of the statutory procedure the state takes the initiative when an unnatural death is suspected. The consequences of an order of presumption of death also differ with regard to the two kinds of presumption of death orders, especially in respect of the dissolution of any existing marriage of the person.
Name the two different procedures in terms of which presumption of death orders may be granted. Presumption of death orders may be expressed in terms of the common law and in terms of a statutory procedure.
We shall now discuss these procedures separately. Explain in a few short sentences. It is then ordered by the court that all interested parties as determined by the court should be given notice of the rule nisi and that it must also be published in the local press and the Government Gazette.
Mr X has been missing for 20 years since the aeroplane in which he was travelling disappeared without a trace off the Durban coast. What is the position in South Africa? Explain in a few sentences, with reference to authority. Discuss in a few paragraphs, with reference to authority.
Another factor to consider is the time period for which the person has disappeared. In your prescribed case Ex Parte Pieters 3 SA D Casebook [6] , the court pointed out the general rule in our law that mere prolonged absence will not persuade the court to issue a presumption of death order. However, the following cases are exceptions to the rule:.
The Inquests Act 58 of provides that if it is suspected that a person died of unnatural causes, the magistrate can hold an inquest. Mrs X has successfully applied for a presumption-of-death order with regard to her husband, who has been missing for 20 years. Explain the position in a few sentences. This can be done on the application of any interested person or the missing person himself or herself. In such a case he or she may bring an action for enrichment against those who have been enriched at his or her expense as a result of the presumption of his or her death Heaton p She now wishes to marry Mr Y.
An order can be made at the same time as the presumption is made or at any time thereafter, by means of a separate application. However, it is difficult to think of a situation where the court would be prepared to express a presumption of death but refuses to dissolve the marriage or civil union of the missing person Heaton p A presumption of death order was expressed in terms of the Inquests Act 58 of Is a separate application necessary to dissolve the marriage?
Explain in a few sentences with reference to authority. Section 2 of the Dissolution of Marriages on Presumption of Death Act provides that a presumption of death that is expressed in terms of the Inquests Act, and confirmed by the High Court, automatically dissolves the existing marriage or civil union of the person concerned. In this case no special application for the dissolution of the marriage or civil union needs to be made.
May the court order that the estate of the missing person nonetheless be divided among his heirs? Explain in a few sentences. On occasion the courts have ordered that the heirs must provide sufficient security for return of the property should the missing person reappear Heaton p Because there was insufficient evidence of death the court merely ordered a division of his estate subject to the provision of security Heaton p 32 n Study Heaton page Thomas died yesterday. On his deathbed he told his girlfriend that he wanted to be cremated and that he wished his ashes to be scattered on the farm where he was born.
However, two years before he died, he included a clause in his will that he should be buried next to his father in the family graveyard. In his will he appointed his mother as his sole heir. Will Thomas be cremated or buried? In the case of verbal instructions there must be clear proof of those instructions, particularly if they contradict written instructions the deceased gave at a different time.
Self-assessment questions 1 Discuss in detail the procedure that has to be followed in an application for a presumption of death order in terms of the common law. What can she do to effect this?
Explain in detail. Can she do so? What would you advise her to do? Questions 3 to 6 are examples of essay-type questions: 3 Discuss in detail the procedure that a person has to follow in an application for the dissolution of his or her marriage after a presumption of death regarding his or her spouse has been expressed in terms of the common law.
What is the effect of the order dissolving the marriage? In your answer refer to the Inquests Act 58 of Which of them will be presumed to have died first? Conclusion In this study unit we discussed the legal principles applicable to the presumption of death orders. In the next study unit you will revise study units 4 to 6.
We strongly advise you to do this revision, as it will help you to understand this work properly and give you a good basis for later preparation for the examination. We recommend the following steps to facilitate your revision: 1 Revise the table of contents of the previous three study units to form a clear idea of their content.
Pay particular attention to the most important court decisions, but also read through the background reading. During revision you should check that your notes are complete, clear and correct and that they not only reflect the substance of your reading, but also your own insights and understanding of problem areas.
You may find that other students are already discussing the content you would like more clarity on. You should be able not only to answer direct short questions, but also essay-type and problem-type questions on each study unit. Heaton pages 35 to Study Heaton page 35 in this regard. In the next study unit we shall discuss domicile. Prescribed matter. Heaton pages 39 to 46 4.
In this regard you must read 4. You need not study this section for examination purposes. List the different components of the definition of domicile.
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