Law of persons Chapter 1

Private law: Weighing and demarcating the interests of individuals, or persons.

Components of private law:

 Family law
 Property law
 Law of persons

Public law: Law that revolves around the state in its authoritative capacity.
Law of persons: That part of the objective law regulating the coming into being, private-law

status and the combing to an end of a natural person or legal subject.

Objective/national law: A norm complex or a system of legal rules.

Subjective law: Regulations of the ralations between individuals.

Jurustic capacities: Legal capacity, capacity to act and capacity to litigate to all the
individuals (or legal subjects) in a particular society at a particular time.

National (objective) law

Material law Formal law

(substantive law) (Adjective law)

Public law Private law

Law of persons Family law

Four categories of objects or legal subjects:
The subjective right to which a person is entitled will depend on the legal object.

Object Subjective right

Real ting Real right: The subjective right which a
person has to a thing.
Performance Personal right: The subjective right to claim
a performance
Intellectual object Intellectual property right: a Person’s
subjective rights to his or her patents,
trademarks
Personallity rights Personality right: The right to personality
property

Subject-object-relationship: Relationship between a person and legal object.

Subject-subject-relationship: Relatonship between a person and a nother person.

Legal subjects: The bearer of juristic capacities, subjective rights and legal duties.

2 Categories of legal subjects:

 Natural person/human beings
 Juristic person.

Natural person: Every person is a legal subject.

Jurustic persons: Social entities, in other words, associations of people, who according to
the law have an independent right of existence.
- A bearer of juristic capacities, subjective rights and legal obligations in
its own right.

3 Categories of a juristic person:

1. Certain associations may establish only with the permission of the state. Their
existence and capacity to act as legal subjects are regulated by statute, because of
the state’s interest.
2. The state also control the second category of associations in the interests of society,
but the permission of the executive authority is not required for the establishment
of each individual association. In these cases the association only needs to register in
terms of the relevant statute. Enterprises functioning for profit/gain are classified in
this category. The nature of the enterprise determines under which statute the
organization has to register: - Companies Act, Close Corporations Act, Bank Act,
Mutual Bank Act, Co-operatives Act.
A business operating as a partnership and a trust does not function as a legal subject.
 3. A third group of associations exist a juristic persons without any state intervention
but due to the fact that they meet the common-law requirements for the
establishment of a juristic person: - Must have perpetual succession.
- Should be the barrier of its own rights and duties
- Irrespective of the rights and duties of its.
individual members.
- The entity has to strive towards a predetermined

goal.
Examples of a juristic person:
 Church groups
 Political parties
 Eskom
 Universities
 SABC

Legal subjectivity: Lega subjectivity concerns the characteristic of being a legal subject in
legal intercourse.
- As soon as they function in legal intercource their involvement is indicated as legal
subjectivity.
Legal personality: Describe the legal subjectivity of a natural person.

- Only people or associations of people can meaningfully be recognized as legal subjects

Thus only human beings and Juristic people have subjectivity in our law.

Ngena: A mail is appointed to have intercourse with a widow in order to sire children in the
house of the deceased.

Status: The sum total of legal subjects capacities. (stare=stand)

- This publication deals only with determining the individual’s private-law status, therefore
the relevant capacities are legal capacisty, capacity to act and capacity to litigate.

Factors affecting a person’s status:

1. Domicile
2. Age
3. Mental disability
4. Prodigality
5. Insolvency

Legal capacity: The juristic capacity that vests the individual with legal subjectivity and
enables him or her to hold offices as a legal subject.
No person in SA law is without legal subjectivity, but it can be limited:
 A person under the age of puberty cannot marry.
 A person under the age of 16 cannot be a testator
 An unrehabilitated insolvent cannot act as executor of a deceased estate.
Capacity to act: The juristic capacity to enter into legal transaction.
 Infans: Child under the age of 7 years.
- Has no capacity to act, the person is young and cannot make a legally
relevant expression of will and therefore cannot conclude an agreement.
 A minor has limited capacity to act and requires parental assistance, lacks the
necessary experience.
 Adults has full capacity to act, may participate freely in legal intercourse.

Capacity to litigate: The jurustic capacity that enables a person to act as plaintiff,
defendant, appellant or respondent in a private law suit (or civil action).
 Infans- Cannot sue or be sued in he/she’s own name.
 Minors- May sue or be sued nut the assistance of a parent or guardian is required.
 Adults- Full capacity to litigate unless mentally disabled.

Wills Act 7 of 1953:

 Only persons above the age of puberty have the capacity to draw up a will.
o Boys 14 and girls 12.
 The differentiation between boys and girl’s with reference to the age of puberty is
based on the scientific fact that a girls physiological development is about two years
faster than that of a boy.
 At 12 and 14 sexual maturity in their physiological development is reached.

Bill of rights
A cornerstone of democracy and enshrines the fundamental rights of all people in our
country.
Underlying democratic values
 Human dignity
 Equality
 Freedom
Vertical affect: The provision impacts only on the relationship between the state and the
individual.
Vertical and horizon: Relationship between individuals inter se.

Chapter 2 of the Constitution:

The Bill of Rights is intended to apply to both the relationship between the state and the
individual and the relationship between the individual inter se and therefore the law of
persons should always be tested against the entrenched fundamental rights.
 Section 9(3) – Specific grounds on which discrimination should not be allowed
namely rece, gender, sex, pregnancy, mental state, ethnic or social orgin, colour,
sexual orientation, age, disability, religion, conscience, belief, culture, language and
birth.
 s9(3) with s9(5) – Discrimination on these grounds is unfair, unless the country is
established.
 Section 36(1) – Helps decide if the discrimination was fair or not.
The rights in the bill of rights may be limited only if the limitation is
reasonable and justifiable.
s36(1) Justifiebility of the limitaions:
a) The nature of the right.
b) The importance of the purpose of the limitation.
c) The nature and extent of the limitation.
d) The relation between the limitation and its purpose.
e) Less restrictive means to achieve the purpose.