STUDY UNIT 1

AN INTRODUCTION TO THE LAW OF

PERSONS
1. INTRODUCTION

Q: Why study the law of persons?

• Branch of law that affects each and every human being
• All human beings are legal subjects, regardless of age and
mental capacity
• Important to know what rules apply to legal subjects
• Some rules found in common law and some in statute
• Recent years: number of statutes/legislation passed which
impact on the rules governing one’s legal personality or
subjectivity
• In particular:
 The Constitution
 The Children’s Act
2
 The Child Justice Act
2. LEGISLATION & THE LAW OF PERSONS
i. The Constitution
• Bill of Rights in chapter 2 of the Constitution contains
fundamental rights for all people which the state must respect.
• The bill of rights has a profound effect on common law and
legislation dealing with the law of persons.
• One of the most important rights: right to equality (section 9)
• Application to this right can be found in:
 J v Director General, Department of Home Affairs 2003 (5)
BCLR 463 (CC)
 Du Toit v Minister of Welfare and Population Development
2003 (2) SA 198 (CC)
 Bhe v Magistrate Khayelitsha 2005(1) SA580(CC) 3
• In J v Director General, Department of Home Affairs 2003 (5) SA
621(CC), a child born as a result of the artificial fertilisation of a
lesbian life partner was placed on the same footing as a child born
as a result of artificial fertilisation of a married person, for the
registration of birth.
• In Du Toit v Minister of Welfare and Population Development 2003
(2) SA 198 (CC) , same-sex partners were allowed to adopt
children jointly so that their children can benefit from the access
and care of both adoptive parents.
• In Bhe v Magistrate Khayelitsha 2005(1) SA580(CC), the
Constitutional Court found the customary law rule of primogeniture
that favoured males, to be unconstitutional.
• These cases are all important because they affect status, which will
be dealt with later.. 4
 TRANSFORMATIVE CONSTITUTIONALISM
• Transformative aim of the Constitution is reinforced by
the rights contained in the Bill of Rights.
• These rights focus on the values of human dignity and
equality.
• Race-based and sexist concepts are replaced with
principles of non-racialism and equality.
• This has a major influence in various parts of our
law(Succession; Socio-economic rights etc), but our
focus in this course will be mainly on the effect on the
common law and legislation dealing with the Law of
5
Persons.
• Section 28(2) of the constitution
• S28(2) plays a fundamental role in protecting the rights
of children.
• S28(2) states that ‘ [a] child’s best interests are of
paramount importance in every matter concerning the
child’.
• What is the meaning of this provision?
• S28(2) is not an ‘overbearing, unrealistic trump’ that will
automatically override other rights.
• The fact that the best interests of the child are paramount
does not mean that they are absolute.
• Section 28(2) is a right in itself and as right in a non-
hierarchical system of rights, it is itself capable of
limitation. 6
ii. The Children’s Act 38 of 2005
• The Children’s act takes the protection of the best interests of the
child even further than s28(2) of the Constitution. It is framed in
strong terms, and it specifies certain factors to be taken into
account when considering what is in a child’s best interest.
• Introduced a number of changes to the common law position:
 The act replaced a concept that was previously termed ‘parental
authority’ with the concept ‘parental responsibilities and rights’
 Age of majority lowered from 21 years to to 18 years (section
17).
 (Parental responsibilities and rights of unmarried fathers)
Unmarried fathers afforded parental rights and responsibilities
to children in certain circumstances. 7
• iii. The Child Justice Act 75 of 2008
• iv. The Child Justice Amendment Act 28 of 2019
• These two Acts will be discussed in Study unit 5
dealing with children’s criminal and delictual
accountability

• Application of Customary Law in Law of Persons

• Separate legal system
• Apply where relevant