IURI 111

LAW OF PERSONS
STUDY UNIT 2: LEGAL SUBJECTIVITY

LECTURER: MS. R. TSATSIMPE

Education is the acquirement

of skills and not a piece of
paper stating compliance with
 The Prescribed Book

• Introduction to the SA Law of

Persons
• ROBINSON J
• ISBN: 9780620380119
 Learning Outcomes
https://youtu.be/ehW830X37eU
After engaging with the material and activities in this study unit you should be able to:
 discuss birth as the coming into existence of legal subjectivity;
 explain the protection afforded the unborn (whether by the nasciturus adage or by other common
law or statutory prescriptions) by means of a critical comparison of given cases or other
prescriptions;
 convey the norms regarding sterilisation and birth control as well as formulate an own
substantiated standpoint ; and
 discuss death as termination of legal subjectivity and explain the consequences of an order of
presumption of death. You must also be able to take up a substantiated standpoint on the question
of whether such order terminates legal subjectivity.
Legal Subjectivity
•Who/what is a legal subjects?
•When do we become legal subjects?
•When does legal subjectivity come to an end?
 Who/what is a legal subjects?
• Legal Subject – is the carrier of legal competencies or entitlements,
subjective rights and capacities.
• There are two categories of legal subjects:
• Natural persons vs Juristic persons
• What is a natural person
• What is a juristic person (see Webber & Co Ltd v Northern Rifles at page 6
of the prescribed textbook)
• Laws and regulations regulating when legal subjectivity begins between
natural persons and juristic persons differs.
INTRODUCTION- Legislative provisions
CRIMINAL PROCEDURE
Section 239 stipulates the
following requirements
• Born alive
• Should have breathed
• Independent circulation
(not necessary)
• Not- entirely separated
• Only a living person can be
killed
REGISTRATION OF BIRTH
& DEATHS REGISTRATION
Administrative Act- Section 1
• “birth” means “living
birth” of child
• No requirement for
specific sign of life
• Thus, any sign of life is
sufficient
• Not granting legal
subjectivity
• Merely registration of birth
COMMON LAW
There are two requirement in
terms of Common Law
• Foetus must be separated
from mother (no need to
cut the umbilical cord)
• The foetus must have
lived independently after
separation (any sign of life
is sufficient to prove life)
 The protection of the interests of the unborn child

• The Nasciturus Adage

• The Meaning?
• The Application ?
• Nasciturus adage :Nasciturus pro iam nato habetur quotiens de commodo eius agitur
• Requirements:
• 1) Must be to the advantage of the nasciturus, third person
• 2) Benefit must accrue after date of conception
• 3) Eventually be born
 Other methods to protect the interests of the
Unborn
1. COMMON LAW MEASURES – curator ad litem
In instances where the interests of an unborn child are raised in a court of law, the court will
appoint a Curator ad litem to protect the interests of the unborn child in that specific case.

2. STATUTORY MEASURES
• (a) Prohibition of alienation – Clause/ provision that seek to prohibit the recipients/landowners
from selling or transferring his interests in relation to the property to someone else.

• (b) Ususfruct- Is a limited real rights that grants the holder the rights to use and benefit from
someone’s else property.
• ) Fideicommissum
• A Fideicommissum is whereby a benefit, usually fixed property, is bequeathed to one
person (fiduciary) subject to the condition that on the occurrence of a specified event or
the fulfillment of a specified condition, usually the death of the fiduciary, that the
inheritance or part thereof is to pass on to another person.

• (d) Servitude- Is a limited real right to be the movable/ immovable property of another
person (owner)
• This limited real right grants the entitled person (holder of the servitude) certain
specific entitlements ( usually the entitlements of use & enjoyment);
• And these entitlements limit the entitlements of the owner in respect of the thing in one
way or another.
• EXAMPLE OF A SERVITUDE:
• A (the farm owner), concludes an agreement with B, his neighbour, that:
• B and all his successors in title will be allowed to use an access road over A’s farm indefinitely. The intention is
that this agreement will be enforceable also against A’s successors in title.
• B, in his person capacity, will maintain the road for as long as he is the owner of the neighbouring farm,
provided that A, in his personal capacity, contributes to the maintenance costs proportional to his use of the
road.
• Immoveable Property (Removal or Modification of Restrictions) Act 43
• Section 2 Application to the court for the removal of modification of restrictions on immovable property
• (1) If any beneficiary interested in immovable property which is subject to any restriction imposed by will or
other instrument before or after the commencement of this Act, desires to have such restrictions removed or
modified on the ground that such removal or modification will be to the advantage of the persons, born or
unborn, certain or uncertain, who are or will be entitled to such property or the income thereof under such will
or instrument, such beneficiary may apply to the court for the removal or modification of such restriction.
• (2) An application to the court under this Act shall be on notice of motion supported by affidavits and notice of
such application shall be given to all other beneficiaries under the will or instrument: Provided that if all the
beneficiaries join in such application, it may be made by way of petition.
• Section 6 Limit on duration of any fideicommissum created after the commencement of
this Act in respect of immovable property in favour of more than two successive
fideicommissaries
• (1) Any fideicommissum created after the commencement of this Act by any will or other
instrument in respect of immovable property in favour of more than two successive
fideicommissaries shall, notwithstanding the terms of such will or instrument, be limited
to two successive fideicommissaries.
• (2) If in terms of any disposition made by will or other instrument after the
commencement of this Act any immovable property or any undivided share in immovable
property becomes vested in any fiduciary (other than a fiduciary without a beneficial
interest) subject to a fideicommissum purporting to be in favour of more than two
successive fideicommissaries, such immovable property or undivided share, or any
undivided share therein, shall, notwithstanding the terms of such will or instrument,
when it vests in the second successive fideicommissary, vest in, and be transferred to, such
fideicommissary free of the fideicommissum.
• The General Law Amendment Act 62 of 1955
• Section 33 of the General Law Amendment Act grants the court power to give its
consent to alienation or mortgage of property subject to certain restrictions
• (1) Whenever under a will or other instrument any unborn person will be entitled to any
interest in immovable property which is subject to any restriction imposed by such will
or other instrument, any provincial or local division of the Supreme Court may grant its
consent on behalf of any such unborn person (whether already conceived or not) to the
alienation or mortgage of such property as if such unborn person were a minor.
• The Administration of Estate Act
• Section 44 of the Administration of Estate Act provides that:
• Movable property to which minor or unborn heir is entitled subject to usufructuary or fiduciary rights or
other like interests
• (1) If according to any distribution account a minor is, or an unborn heir will when born be, entitled to
any movable property out of a deceased estate, subject to usufructuary or fiduciary rights or any other
like interest in favour of any other person including the natural guardian, tutor or curator of the minor or
unborn heir, then, subject to the provisions of subsection (3) and any express provision to the contrary in
the will- (a) the executor shall, in the case of a sum of money, pay such sum of money into the hands of
the Master, and, in the case of any other movable property, deal with such property in such manner as
the Master may direct; and (b) such sum of money and, unless the Master otherwise directs, such other
movable property shall not, during the minority of the minor or before the birth and during the minority
of the heir, as the case may be, be paid or delivered to such person unless such person has given security
mutatis mutandis as provided in subsection (2) of section forty-three, for the payment of such sum or the
delivery of such property to the minor or heir at the time when the minor or heir is to become entitled to
such payment or delivery.
DOES LEGAL SUBJECTIVITY ALWAYS BEGIN OR COME INTO
EXISTENCE AT BIRTH?


Look at Case law

Pinchin v Santam Insurance Co Ltd

Road Accident Fund v Mtati

How did the courts assess this question?

Why do we refer to case law and how to find case
law ?