Law of Persons 2011

Lecture 1: Introduction

In the Valentine mood

Moreover the female sex is generally colder and more moody than the male sex, and less fitted for affairs which require an understanding; therefore the male sex is given by nature a sort of authority over women. For it belongs to the wisest to rule (Grotius 1.3.8)

Law of Persons 2011

Slides on net: \\jackal\user\home\dept\lawr Handout: reading list / legislation / prob questions Tutorials (+- 3rd week for Persons) & class work Important dates: 24 Feb: RAF v Mtati 2005 (6) SA 215 (SCA) Adv. Gavin Dugmore 18 April: Assignment 18 May: Test Lecture times: No first period and lunch time slot please surely its unconstitutional

Introductory Remarks
LOP: academic interest?
Interrelationship between law and society. Interdisciplinary study.

LOP: importance?
Legal subjects. Legal personality beginning and end. Different classes of persons.

Scope of LOP?
Public law / Private law divide.

Private law ceases to be regarded as some brooding Roman-Dutch omnipresence in the sky to be revealed as a public mechanism sanctioned by the state for the regulating of social transactions. (Cockrell Can you

Paradigm? Another Perspective on the Public Law / Private Law Divide 1993 Acta Juridica 227 at 234)

Compartmentalising ??

Practice
(i) Analytical part (ii) Empirical / functional part (iii) Normative part

What to guard against

The meaning of legal personality Every human being is a person in the law, but not every person is a human being. The law is at liberty to confer legal personality upon any entity it sees fit.
TWO classes of persons in law:
Natural persons Juristic persons

Natural Persons
In South Africa, every human being is a natural person. This has not always been the case: In Germanic law and Roman Law, some humans were accorded reduced status:
Slaves POWs Monstra: severely malformed children.

Tjollo Ateljees Edms Bpk v Small 1949 1 SA 856 (A):

The Dutch Jurists generally received the Roman rule that a child which is a monstrum [...] is not human and cannot therefore be the subject and so the transmitter of rights. Reference or lip service to a vague and nebulous notion is not enough to establish it as a rule of law.

Juristic Persons?
A juristic person is a social entity, a community or an association of people. Such an entity is the bearer of judicial capacities, subjective rights (and the accompanying entitlements and legal obligations in its own right), just like a natural person. A company is an example of a juristic person.

Can anyone/anything other than natural persons or a juristic person be vested with legal personality?

If someone is deceased?
Continental law Germanic law Indigenous law systems:
Ukungena custom Ukuvusa custom

Animals?
Middle Ages Eastern countries 2008 Vienna South Africa

Suggested Response
Deceased? Animals?

Thus: only natural and juristic persons have legal personality

Significance of the beginning of legal personality

Legal personality begins at birth. Before birth, the foetus is generally regarded not as a legal subject but rather as merely forming part of the mother. The foetus (in general) has no rights, duties or capacities. However, the application of the nasciturus fiction AND common delictual principles can assist the fetus once born

Interests of the unborn child Nasciturus pro iam nato habetur, quotiens de commodo eius agitur Common law requirements: 1. Nasciturus must have been conceived 2. Child must have been born alive 3. Operation of the fiction must be to the advantage of the unborn child