LoP notes

It is objective law that deals with coming into being, private law status and the end of a natural person.
• Conduct = objective law
• Relations between subjects = subjective law
o Subjective right can be subject-subject relationship and subjects subject-object relationship

Juristic persons:

❖ Associations established in separate legislation.

➢ SABC, Universities
❖ Associations incorporated in terms of special enabling legislation.
➢ Banks and Companies
❖ Associations that comply with the common-law requirements for establishment of a juristic person
➢ Churches, trade unions
▪ Must remain even when members change.
▪ Must have rights, duties and capacities separate from those of its members.
▪ It may not be aimed at making a profit

The Beginning of legal personality

Legal Personality begins at birth with the following requirements:

1. Birth must be fully completed (Complete separation between the mother and baby. For birth to be
completed it is not required that the umbilical cord be severed (cut off)
2. The child must be alive after separation even if only for a short period, legal personality is not obtained
by a stillborn foetus or a foetus which dies during birth.
3. The child must also be viable before legal personality is conferred upon her (the child must have reached
such a stage of development that an existence independent of its mother’s body is possible) (not valid to
South African law.
Registration of Births
1. In terms of the Births and Deaths Registration Act 51 of 1992, notice of the birth of every child born alive
must be given within 30 days after the birth to the Director General of Home Affairs.
2. Notice of the birth of a legitimate child must be given under the surname of the father/mother or both
and in the case of an extra-marital child under the surname of the mother.
3. If an extra-marital child is registered under the surname of the father of the child, written consent to
change the surname from the father is no longer required where the mother has sole guardianship over
the child.

Nasciturus Fiction
Definition and requirements
Nasciturus is a conceived but unborn child (foetus) not yet a legal subject. In the normal course of events the
foetus will become a legal subject (After birth). However, before the birth of a child, situations could arise which
could have been to the advantage of the Nasciturus had he/she already been born i.e., he/she could have been a
beneficiary under a will. Whenever such a situation arises, the law protects the interests of the Nasciturus by
employing the fiction that the foetus is regarded as having been born at the time of conception whenever it is to
its advantage.
The fiction is based on a presumption or assumption that is not based on a fact, when applying Nasciturus fiction,
the unborn child is regarded as a living person, although it has not yet been born.
 • Nasciturus fiction implies that certain claims/rights or the legal position that could be to the advantage of
the Nasciturus is kept in abeyance for receipt upon birth. For Nasciturus fiction to come into operation,
the foetus must have been conceived at the time that the benefit would have accrued to him, and the
child must subsequently be born alive. If the child is not born alive it is assumed, regarding his interest,
that he was never conceived.
• A 3rd person may benefit from the application of Nasciturus fiction if such benefit is a natural consequence
of the application of the fiction in favour of the Nasciturus, but n-fiction cannot be used if only a 3rd person
will benefit from its application. I.e., in the case where n-fiction is applied and the child dies soon after
birth, then only the child’s intestate heirs.

The interest considered

In modern South African Law n-fiction has been extended and our law proceeds from a general principle and
protects any of the following conceivable interests.
1) Patrimonial Interests.
2) Succession
a) Intestate Succession
i) Where a person failed to leave a valid will, the estate devolves in terms of the law of intestate
succession. N-fiction is applied to protect potential interest of un unborn child as division of the assets
is postponed until it is certain whether a live person is born or not. If the child is born alive, he/she
inherits as if he/she was already born at the time of the deceased’s death.
b) Testate Succession
i) It has been held that if a testator does not appoint beneficiaries by name, but as members of a class,
child is in that class who was already conceived at the time of the testator’s death but was born only
after the testator’s death can inherit. The reason for the decision is that the testator presumably had
the intention of benefiting already conceived but still unborn persons belonging to the class.
3) Maintenance
a) If the father of a Nasciturus is killed because of someone else’s delict (unlawful deed and culpable deed
by which another suffers a loss), the child can, after her birth, institute an action/claim for damages as a
result of the loss of support against the person who killed her father. The basis for calculating the claim
is the to put the child in the position she would have been if her father was not killed.
i) In Chisholm v ERPM 1909 TH 297, the court held that where the child is born after her father’s death,
the Nasciturus fiction may be used to grant the child a claim for damages for loss of support after
his/her birth
4) Personality Interests
a) If the foetus is hurt in ventre matris (in the womb) and as a result is born with a brain defect. Does such
an injury give rise to and action for damages or solatium (satisfaction for the infringement of a personality
right)?
i) In South African this question came b4 the court in Pinchin v Santam Insurance: Judge Hiemstra
pointed out that the only starting point in our common sources for the protection of the interests of
the foetus was to be found in the Nasciturus fiction and mentioned that all commentators focused on
succession and status only. He also consulted English and American law and concluded that the
principles of South African law are flexible enough to extend the fiction to the field of delict. He
accordingly held that a child does have an action to recover damages for pre-natal Injuries. The
Plaintiff was successful on the question of law, but it was found on the facts that it had not been
proved that the brain damage was caused by the accident and the action was thus turned down.
5) Custody/primary care
a) Where a pregnant woman is party to divorce proceedings, the court may make provision in its order for
the custody of the child after birth to limit further legal proceedings when the child is born.
Is the Nasciturus a legal subject?
To find an answer to the issue, one must distinguish between the so called Nasciturus rule and the Nasciturus
fiction. Some jurists maintain that the protection afforded to the foetus is based on the Nasciturus rule and not
on a fiction.
• Nasciturus rule argues that if a situation arises where it would have been to the advantage of the unborn
child, had he/she already been born, all the rights that a normal person would have must also be afforded
to the unborn child. The unborn child is thus a legal subject from the date of conception.
• Nasciturus fiction argues that Nasciturus fiction should be applied to protect his/her interests until the
child is born, the unborn child is thus not regarded as a legal subject.

Abortion
Formally the Abortion and sterilisation Act 2 of 1975 protected the interests of the foetus to be born alive and
that any person who killed or aborted an unborn child committed a crime. The act also defined in a few narrowly
defined circumstances in which abortion was allowed and contained rules about the procedure to be followed
when such an abortion was performed. Abortion is now regulated by the Choice on Termination of Pregnancy act
92 of 1996, which legalised abortion
Termination of pregnancy
A pregnancy may be terminated with the consent of the mother during:
a) The 1st 12 weeks of the gestation period by a medical practitioner/midwife.
b) From the 13th up to and including the 20th week of the gestation period if a medical practitioner, after
consultation with the pregnant woman is of the opinion that:
i. The continued pregnancy would pose a risk of injury to the woman’s physical or mental health;
or
ii. There is a substantial risk that the foetus would suffer from a severe physical or mental
abnormality; or
iii. The pregnancy resulted from rape or incest; or
iv. The continued pregnancy would significantly affect the woman’s social or economic
circumstances
c) After the 20th week of the gestation period a pregnancy may be terminated if a medical practitioner,
after consultation with another medical practitioner or a registered mid-wife is of the opinion that the
continued pregnancy would:
i. Would endanger the woman’s life
ii. Would result in a severe malformation of the foetus; or
iii. Would pose a risk of injury to the foetus.
NB: Only a medical practitioner may perform an abortion after the 12th week of the gestation period.
Consent
An abortion may only take place with the informed consent of the pregnant woman. No other consent that that
of the pregnant woman is required for the termination of a pregnancy unless, she is incapable of giving consent.
• In the case of a pregnant minor (under 18) the medical practitioner or registered mid-wife must advise
the minor to consult with her parents, guardian, family members or friends b4 the pregnancy is
terminated. She may however not be denied the termination if she does not want to consult with any of
the above.
• The act also provides for the termination of the pregnancy of a woman who is severely mentally disabled
or in a state of continuous unconsciousness VERY IMPORTANT STUDY DECISION Christian Lawyers
Association of South Africa v The Minister of Health (Case Book [4]).
Before the above act came into operation, our courts held that the foetus does not have a right to life which can
be enforced on its behalf.
Abortion is a continuous constitutional issue; it is argued in sec 11 of the constitution of South Africa that (which
guarantees life) renders abortion unconstitutional.
Birth control and sterilisation
Birth control and sterilisation are permitted and governed by the sterilisation act 44 of 1998 which permits
voluntary sterilisation of anyone over the age of 18 who is capable of consenting. A person under the age of 18
may only be sterilised if failure to perform the sterilisation would jeopardise his/her life.

The end of legal personality

The End of legal personality
The legal personality of a person is terminated by death. The courts rely mainly on medical evidence to determine
death and moment of death. Absence of lung, heart and brain function combined, is death.
Proof of death
A death certificate is prima facie proof of death. In private law proof of death is important for the administration
of the deceased’s estate and the surviving spouse can remarry. Legal position where a person disappears, and it
is uncertain whether he/she is alive. Accordingly, when a person disappears, and it is not certain whether he/she
is still alive, the presumption of death is used to settle this unsatisfactory situation.
Procedures to obtain presumption of death order
Common law presumption of death Statutory presumption of death
Should any interested 3rd party apply to the High Legislature prescribed two alternative procedures
Court to have a presumption of death expressed, to common-law presumption of death in respect
it is referred to as a Common-Law application as of persons whose death resulted from unnatural
the application is brought in terms of the common causes. Inquest Act and Aviation Act.
law. I. Inquest Act 58 of 1959 beyond reasonable
Criteria: doubt. State initiates the case
I. Any interested party i.e., creditor; II. Aviation Act 74 of 1962 used in an enquiry
surviving spouse. into an aviation accident.
II. Application to High Court whose III. Magistrate
jurisdiction extends to domicile of IV. Dissolution of marriage automatic.
missing person
III. Applicant must prove on a predominance
of probabilities that the missing person is
dead.
IV. Initial 7-year rule was superseded by the
rule that no fixed period is required.
Factors a court considers
• Length of absence (alone, not enough to
base a presumption of death)
• Date of disappearance.
• The age of the person presumed to be
dead
• The trade or occupation of the person
presumed to be dead (Peaceful / danger)

Procedure the court will follow hearing the application:

Common Law Presumption of death Statutory Presumption of death

After hearing the application. ❖
❖ Date set to make final order,
❖ Parties notified of rule nisi and published in
newspapers and government gazette.
 The effect of an order of presumption of death.
• The presumption of death order does not mean that the person concerned is dead. It is only a rebuttable
presumption (Reversable). The court can set aside the order based on further evidence that the person
concerned is alive. (This can be done by an interested person or the missing person himself)
• After death has been officially presumed, the person’s estate may in principle be dealt with as if he/she were
dead and divided among the heirs. Subject to, in certain instances, security for the restoration of the property
or its value, should the missing person return.
• The remarriage of the surviving spouse after the presumption of death order is regulated by the Dissolution
of Marriages on Presumption of Death Act 23 of 1979 which provides that the court which pronounces a
presumption of death is empowered to make an order dissolving the person’s marriage while the presumption
of death is made or anytime thereafter.
• The court may only grant the order the order for a dissolution of a marriage on application from the surviving
spouse and not out of its own initiative. The result of the order is the marriage is deemed to be dissolved by
death for all purposes.
• The court may refuse to grant an order presuming the death of the missing person but may appoint a curator
bonis to administer the missing person’s affairs.

Presumptions regarding sequence of death

Where few people die in the same disaster commorientes, it is important for purposes of inheritance to determine
who died first. In South African law, unless there is evidence to the contrary, the courts will find that commorientes
died simultaneously.

Status and factors that influence it

• Status is a person’s standing in the legal system.
• Legal status is determined by the nature and extent of capacities allocated by law to a subject in the
objective sense.
List of capacities
❖ Legal capacity
➢ Capacity to have rights and duties
➢ Passive ➢ Active
Capacity to have rights and duties. Automatically Ability to acquire rights and duties by own
conferred. unassisted act.

❖ Capacity to act
➢ Capacity to perform valid juristic acts
❖ Capacity to litigate
➢ Capacity to lodge and defend an action at law
❖ Capacity to be held accountable for crimes and delicts
➢ Criminal capacity ➢ Delictual capacity
Does the person have the mental ability to Does the person have the mental ability to
distinguish right and wrong? distinguish right and wrong?
Can the person act in accordance with that Can the person act in accordance with that
appreciation? appreciation?
Domicile
▪ The place where, for the purpose of the exercise of his or her rights and the fulfilment of his or her
obligations a person is deemed to be constantly present, even in the event of his or her factual absence.
▪ The Domicile Act 3 of 1992.
Most important areas of private law where domicile plays a role
Matrimonial Law of succession Jurisdiction
property Intestate: Generally heard in
system of Movable property devolved as per law applicable in deceased domicile. court of area
marriage. Immovable property devolved as per law of place where property is domiciled at.
Lex loci situated. Divorce
domicilii of Intestate: (by law of testator’s domicile) determines:
husband Capacity to dispose of property
determined Capacity to inherit
matrimonial Compliance for the execution of the will
property System of law if not specified in will.
system.

1) Importance of Domicile
Domicile affects many aspects of private law like:
a) A fathers Lex loci domicilii determines whether his child is legitimate or illegitimate at the time of his/her
birth.
b) A persons Lex loci domicilii determined whether he/she is capable of entering into a contract and is also
important in the law of succession. (It is the law of intestate succession of the country in which the
deceased was domiciled at the time of his/her death which determines how his/her estate should be
devolved in the event of dying intestate.)
c) In the law of procedure, domicile determined the jurisdiction of a division or the high court (Generally
the plaintiff must sue the defendant in the court having jurisdiction in the area where the defendant is
domiciled.)
2) Basic principles of Domicile:
a) No one can be without a domicile at any time
b) No one can have a domicile in more than one place at the same time
c) The changing of a person’s domicile is never accepted without proof
3) Kinds of Domicile
a) Domicile of origin (domicilium originis)
i) The domicile the law assigns to a person at birth. (In the past the importance of the domicile of origin
lay in the fact that if a person abandoned her domicile of choice without assuming a new domicile,
her domicile of origin revived).
ii) The above position has now been changed by the Domicile Act 3 of 1992, which provides that no one
loses his/her domicile until he/she has acquired another domicile, whether by choice or by operation
of law.
b) Domicile of Choice
i) The domicile which a person who has capacity to act has chosen for himself by exercise of his own
free will (the most important domicile)
ii) In terms of section 1 (1) of the Domicile Act 3 of 1992, every person who is over the age of 18 as well
as every person under 18 who by law has the status of a major, is competent to acquire a domicile of
choice, regardless of such a person’s sex or marital status. Before the act came into operation, a wife
acquired and followed her husband’s domicile
 iii) Requirements for domicile of choice:
A prohibited immigrant who is openly permitted by the authorities to reside in South Africa could
acquire a domicile of choice here (Naville v Naville). If a person has lived in South Africa and is later
deported, that person’s domicile of choice is terminated the moment he or she is deported as the
residence then becomes unlawful.
• The person must have settled lawfully at the place, (that is the fuctum requirement); and
• He/she must have the intention of residing indefinitely at that place (that is the animus
requirement)
c) Domicile by operation of law
i) Every person who has capacity to act can acquire domicile of choice. However, children and mentally
ill persons cannot acquire a domicile of choice but are granted a domicile by operation of law for as
long as their minority or insanity continues.
• Child: Section 2 (1) of the Domicile Act 3 of 1992, provides that a person who is incapable of
acquiring a domicile of choice in terms of section 1 of the act will be domiciled at the place to
which he/she is most closely connected (parental home)
• Mentally ill person: Formally the courts held the view that mentally ill persons retained the
domicile they had before they became mentally ill. The Domicile Act now provides that mentally
ill persons are domiciled at the place with which they are most closely connected.

4) Comparison:
Domicile of Origin Domicile of choice Domicile by operation of law
Domicile which the law assigns to Domicile which a person with Children below 18 and mentally ill
every person at his/her birth capacity to act, has chosen for persons cannot acquire a domicile
himself or herself by the exercise of choice but are granted a
of his or her own free will domicile by operation of law as for
as long as their minority or mental
illness continues.

Persons who are not free to choose where to reside.

Development of law dealing with domicile of soldiers:
1. Before 1945: in McMillan v McMillan 1943 TPD 345 the court held that a soldier could not acquire a
domicile of choice as the place where he was stationed, as the continuation of his residence there
depended on the decisions of his superiors, and not on himself.
2. In 1945: in Baker v Baker 1945 AD 708 the court held that a soldier serving another country could in fact
acquire a domicile of choice in the country where he was stationed. The question in each case was
whether the person had the “final and deliberate intention” of abandoning his previous domicile.
3. After the Baker-case: In Moore v Moor 1945 TPD 407 and Nicol v Nicol in 1948 (2) SA613 (C) the courts
decided that a soldier or sailor could acquire a domicile of choice in the country where he was stationed.
Domicile of a Prisoner
It was generally accepted that prisoners retained their last domicile before imprisonment and could not acquire
domicile of choice in prison
In Nefler v Nefler it was held that a prisoner who had been imprisoned for life acquired a domicile of choice in
prison by operation of law
Domicile of a prohibited immigrant
The residence relied on for the acquisition of a domicile of choice must be lawful illegal immigrants can therefore
not acquire a domicile of choice in South Africa even if they have the animus to settle permanently because their
animus is unlawful
Where prohibited immigrants are, however, openly permitted by the authorities to reside in this country, they
may acquire a domicile of choice in South Africa.

Extra-marital children
Legitimate child: Is born of parents who were legally married to each other at the time of the child’s conception
or birth or any time between these dates. (Child born of married parents)
Extra-marital child: where the parents of the child were not legally married to each other at any of the above
stages. (Child born of unmarried parents)
Proof of paternity
1) Presumption of paternity
a) Married Persons: South Africa law recognises the rebuttable presumption that a child born of marriage is
that the husband, in other words it is presumed that the child is legitimate. Either spouse could bring
proof that they did not have sexual intercourse during the period in which the period in which the child
could have been conceived.
i) Today, the position, therefore, is that the presumption pate rest quem nuptiae demonstrant is
rebuttable. The fact that the husband was absent at the time of conception, or that he is impotent or
sterile is sufficient proof to rebut the presumption.
b) Unmarried Persons: Previously the position used to be that if the mother named a particular man as the
child’s father, and he admitted, or it was proved that he had sexual relations with her at any time, he was
presumed to be the father.
i) However, legislature intervened and provided in section 1 of the Children’s Status Act 82 of 1987 that
it should be proved that the man had sexual intercourse with the child’s mother at any time when the
child could have been conceived, he is presumed to be the child’s father, unless the contrary is proved.
The onus then is on him to prove on a balance of probabilities that he cannot possibly be the father.
2) Rebuttal of the presumption of paternity
Factors considered when proof is sought that a particular man is not the father of a particular child.
a) Absence of sexual intercourse: If a man can proof that he did not have sexual intercourse with the woman
at the time the child could have been conceived, i.e. out of country at the time, the allegation (or
presumption) of paternity will be refuted (disproved)
b) Sterility: An allegation or presumption of paternity is also refuted if the man can prove that he is sterile.
c) The Exceptio plurium concubentium: This defence applies when the man as pointed out by the woman,
admits that he had sex with the woman during the time conception could possibly have taken place, but
alleges and proves that at the same time another man or other men also had sex with the woman.
i) Validity of the exceptio plurium concubentuim defence: Unless blood tests can provide the necessary
proof, it will remain uncertain who the father of the is. The question that arises on who will be held
liable for the maintenance. Solutions: 1) all the men concerned could be absolved from liability 2) all
the men could be held liable 3) only the man named by the mother could be held liable.
d) Physical Features: The fact that the physical features of the child do or do not resemble those of the
alleged father will not carry much weight in proving that he/she is or is not the child’s father.
e) Contraceptives: The presumption of paternity will also not be rebutted if the man proves that he used
contraceptives when he had sex with the mother.
f) Blood Tests: The courts have accepted blood tests as sufficient proof that the spouse could not have been
the father of the child. This has been the case where blood tests were submitted voluntarily. However,
the legal position regarding the question whether the court may compel a person to undergo blood tests,
is still uncertain. This question was raised in these two cases: M v R and S v L.
i) It is indicated from the above cases that the courts may in future be hesitant to order blood tests in
paternity suits on the ground that such orders violate not only the right to privacy (Constitution of
South Africa 108 of 1996 s 14) but also the right to bodily and psychological integrity (Constitution of
South Africa 108 of 1996 s 12 (2)). However, if infringement of the said rights were in the best interest
of the child to do determine paternity, it will be considered justifiable as sec 28 (2) of the constitution
 of South Africa 108 of 1996 provides that the child’s best interests shall be paramount in all matters
concerning the child.
g) The gestation period: The courts today decide on an ad hoc basis (no fixed period), with reference to
medical evidence, when conception could possibly have taken place. However, the courts are disinclined
to declare a child illegitimate, resulting in rather lengthy periods of gestation.

Minority
Children’s rights and the infant
o Infant means a person younger than 7 years.
o Minor means a person younger than 18 years. S28(3) of the Constitutions says majority obtained at 18
years of age.
o Infant has no capacity to act, litigate or be held liable for crimes and delicts. But can be liable if delict is
not as a result of fault.
o The guardian cannot assist an infant in juristic acts and litigation, guardian acts on behalf of infant.

Fundamental Concepts about contractual capacity of a minor

• There is an agreement if there are consensus between two or more people, and all are aware of having
reached consensus (conscious consent)
• A contract (or obligatory agreement) is an agreement undertaken with the intention of creating an
obligation/s.
• Contractual Liability means that the party or parties to the contract can be held legally liable for the
fulfilment of the provisions of the contract.
• An obligation is a juristic bond in terms of which the party or parties on the other side have a right to
performance and the party or parties on the other side have a duty to render performance. Contracts,
delicts, and various other causes (i.e., undue enrichment) give rise to obligations)
• Performance is human conduct which may consist of a commission or omission.
Types of contracts
• A unilateral contract is a contract in terms of • A reciprocal contract is a special type of
which only one of the parties undertake to multilateral contract. It is a multilateral
render some performance. An example of contract in terms of which performance is
such a contract would be a contract of promised on the one side in exchange for
donation. Only the donor undertakes to performance on the other side.
render some performance.

The minor’s contractual capacity – undue enrichment and negotiorum gestio

In such a case the law obliges the recipient to return the prejudiced party the amount by which his/her estate has
been enlarged. The prejudiced party thus has a claim against the recipient based on undue enrichment. The
general rule can also be applied where a minor contract with an adult without the necessary permission.
If the adult has already performed in terms of the contract, and the minor in his turn refuses to perform, the minor
is enriched at the cost of the adult who already delivered performance. The adult can hold the minor liable on the
ground of undue enrichment for the repayment of the amount by which he/she was enriched.

Negotiorum Gestio
Parents have a duty to maintain their children. Therefore, if a child in the absence of its parents incurs expenses
by purchasing necessaries like food, the parents may be held liable by the other party based on negotiorum.
 The minor’s contractual capacity ~ assistance by the parent or guardian
Liability of the Guardian
“A guardian acting in his capacity as guardian does not incur personal liability towards the other party, even if
he/she assisted the minor or acted on his behalf”.
However,…
▪ The Guardian will be liable if the minor has acted as his/her agent, or if the guardian has ratified a contract
that the minor has concluded as his/her agent.
▪ The guardian will be personally liable if he/she has guaranteed performance by the minor or if the
guardian has bound himself as surety.

The minor’s contractual capacity ~ restitutio in integrum

Requirements for the application of restitutio:
a) The minor should have concluded the contract with the assistance of a guardian, or the guardian should
have contracted on his/her behalf.
b) The contract should have been prejudicial to the minor at the moment it was made

Purpose of the remedy:

To place both parties in the position they would have been as if they never entered into the contract.
▪ Each party must return everything received under the contract as well as the proceeds or any advantage
derived from the contract.
▪ He/she must also compensate the other party for any loss he/she has suffered as a result of the contract.

Benefit theory:
• The Benefit theory was introduced in our law in the case of Nel v Divine Hall & Co in which the court
decided that once the contract, taken in its entirety, is to the minor’s benefit, the minor is contractually
liable.
• The Supreme Court of Appeal authoritatively rejected the benefit theory in Edelstein v Edelstein 1952 and
decided that the contract of a minor who acted without assistance can never be valid because it is to
his/her benefit. However, the minor is liable for the extent to which he/she has been unduly enriched.

How is the extent of the minor’s enrichment calculated?

Five principles are applicable when calculating the extend of the minor’s enrichment
1. The moment on which the calculation must be based, is the moment when the other party institutes
his/her claim, that is at litis contestation.
2. Actual value is calculated not purchase price.
3. The amount by which the estate of the other party is decreased because of the performance (actual value
and not contract price)
4. Determine the above two amount, the minor is liable for the lesser of the two
5. If the minor has lost the performance, he/she received or its value has decreased, or if he/she has sold it,
the following rules apply:
a. Lost/stolen = The other party is not entitled to anything
b. Value decreased = The minor is liable only for the decreased value.
c. Sold before litis contestatio, he/she remains liable for the purchase price received, depending on
how he/she applied the proceeds thereof
d. If the proceeds are still in the possession of the minor at the time of litis contestatio, he/she is
liable for as much of it as is remaining during litis contestatio.
 e. If the minor used the proceeds for necessaries, he or she is still liable for the purchase price of
these necessaries. Reason being, that he/she would have had to purchase the items out of his/her
own estate in any case.
f. If the minor purchased luxury items with the proceeds, he/she is till liable for whatever remains.
Natural vs Civil obligation
• The minor’s unassisted contract creates a natural obligation on the part of the minor, and a civil
obligation on the part of the other party
• This means that the contract is not enforceable against the minor and his or her guardian, whereas
it is enforceable against the other party
o In other words, although the minor is not contractually liable to perform under the
contract, the other party is.

Termination of minority
Minority will end if one these conditions occur:
1. Attainment of the prescribed age: The attainment of majority has been fixed by state at the age of 18
years for both sexes.
2. Marriage: Someone who enters into a valid marriage before the age of 18 becomes a major for all
purposes.
3. Venia aetatis and release from tutelage
a. In common law the sovereign could grant a minor concession to act as a major = venia aetatis.
The effect was to make the minor a major in the eyes of the law with the exception that he/she
could not alienate his/her immovable property or burden it with a mortgage unless this capacity
was expressly conferred by the sovereign for Limited capacity.
b. Release from tutelage refers to the authority the courts had to confer full capacity to act on a
minor (granted by the courts / Full capacity)
4. Emancipation
Express emancipation refers to the declaration before the court by the parent or guardian that he/she had
emancipated his or her child from parental authority (Venia aetatis).
Tacit emancipation occurs where a minor lives apart from his/her parents and manages his/her own undertaking
A minor is emancipated if his/her guardian grants him/her freedom to contract independently when the minor
participates in commerce as an economically independent person.
▪ With emancipation the guardian consents to a specific class of juristic act.
▪ With this consent, the minor incurs liability like a major.
▪ Where a minor has no parents, he/she can be emancipated by her legal guardian.
▪ Emancipation can only be effected by the express or implied consent of the parents. Mere carelessness
on the part of the parent does not result in the minor’s emancipation.
▪ The question of the effect of emancipation on the minor’s capacity to act has not been authoritatively
decided.
The issue is whether emancipation applies to only certain transactions or whether the minor can act beyond the
scope of such trade.
➢ Some authoritative views suggest that tacit emancipation gives the minor capacity to act in respect of all
contracts except that he/she cannot alienate or encumber immovable property and cannot enter into a
marriage without his/her guardian’s consent. In other cases, it has been held that the minor is only tacitly
emancipated in respect of contracts in connection with his/her business.

Mental illness
Meaning
➢ A person cannot understand what he/she is doing and is unable to appreciate the consequences of his or her
legal actions; an action or decision motivated or influenced by delusion caused by mental illness.
➢ Legal acts performed during a lucidum intervallum are regarded as valid.
➢ Mental Health Care Act 17 of 2002: A positive diagnosis of a mental health- related illness in terms of accepted
diagnostic criteria made by a mental health practitioner authorized to make such diagnosis.
➢ Criminal Procedure Act 51 of 1977:
o Mental illness- Manifests itself later in life.
o Mental defect- Abnormally low intellect which is usually evident in early stages and is of a permanent
nature.
➢ Expression or will of mentally ill person has no consequences. Therefore, they can’t occupy certain offices.
Parental responsibilities and rights not automatically terminated. (Legal Capacity)
➢ Legal acts can’t be ratified (except lucid interval). If a person concludes a legal act, the acts are void and the
status quo ante should be restored.
➢ A person can’t marry if owing to a mental illness or defect they are unable to understand the nature of the
marriage agreement and its duties and responsibilities. (Prinsloo’s Curator Bonis v Crafford and Prinsloo 1905
TS 669). They also can’t marry if influenced by delusions. (Lange v Lange)
➢ Mental illness prevents the running of prescription, their will is void, can’t consent to sex, and may lead to
divorce (incurable mental illness is a ground for divorce)
➢ A mentally ill person can’t be held liable for crimes S78 of Criminal Procedure Act.

Influence of intoxication
Capacity to act
➢ To not be held accountable, alcohol consumption should have deprived the consumer the ability to know the
act or its provisions.
➢ A couple of drinks is not enough to negate capacity. (Goodman v Pritchard (1907) 28 NLR 227)
➢ Contract is void ab initio if it can be proved that the person was so affected that his/her senses were deprived.
➢ Criminally, intoxication may deprive a person of criminal capacity. But, if a person consumes knowingly that
they will perform an act and will be impaired, they will be held criminally responsible (s1 Criminal Law
Amendment Act 1 of 1988).
➢ Delictually, it does not deprive the person of delictual liability. Negligence is enough to hold a person liable
for a delict.
Prodigality, curatorship, and insolvency
Prodigality
➢ Prodigality- Situation where one finds hi/herself squandering his assets recklessly and irresponsibly. People
who suffer from some sort of addiction fall into this class. They sell off their assets to feed the addiction.
➢ If declared a prodigal by a court, a person is prohibited from handling his own affairs. A curator bonis will be
appointed. They may no longer participate in commercial activities and may not handle finances. They may
not be a director, executor, or a trustee in an insolvent estate.
➢ Curator must assist in all contracts. Consent required for an ante-nuptial agreement. The curator may cannot
execute a will on behalf of the prodigal, nor can he assist the prodigal in this respect. The prodigal’s will is valid
if it benefits his/her dependents or the assets are dealt with equitably.
➢ Prodigal may not litigate without the curator’s consent as he/she may incur liability for costs and will affect
the prodigal’s estate. They can, however, bring a divorce action without the curator’s consent or assistance.
Insolvency
➢ A person’s liabilities are greater than his assets.
➢ Master of the High Court takes charge of the estate until a trustee is appointed, and then it vests in the trustee.
All assets acquired during insolvency vests in the insolvent estate.
➢ Assets that fall outside the insolvent estate:
o Pension money
o Earnings retained for support.
o Compensation for a delict or civil case.
o Certain life insurance policies.
o Personal items.
➢ Insolvent may not be a member of National assembly, member of Provincial legislature, hold a liquor license
or a member of a statutory council.