persons 1'.ppt
DESCRIPTION
South African law of personsTRANSCRIPT
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 it’s 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…