Law of Persons

LOP162
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 ASSIGNMENT

SEMESTER 2023 02
MODULE LAW OF PERSONS

MODULE CODE LOP162

DUE DATE 22 SEPTEMBER 2023

Page 1 of Assignment
 ASSIGNMENT – 2023 SECOND SEMESTER
LOP162
LAW OF PERSONS

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 ASSIGNMENT – 2023 SECOND SEMESTER
LOP162
LAW OF PERSONS

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Page 3 of Assignment
 ASSIGNMENT – 2023 SECOND SEMESTER
LOP162
LAW OF PERSONS

Question 1 [10]
James, a married man, was six weeks ago declared a prodigal by the court. A prohibitory
interdict was obtained against him – he is prohibited from administering his own estate. He
consults you for legal advice. He wants to know what a prodigal is; what effect the order has
on him and what effect such an order may have on third parties. Explain these matters to
him.

Question 2 [9]
List the three categories juristic persons are divided into and provide an example of each
category.

Question 3 [10]
Indicate whether the following statements are TRUE or FALSE and provide a REASON
for each of your answers:
3.1 A partnership is recognised as a juristic person in South African law. (2)
3.2 When a minor is involved, prescription is postponed until two years after the minor
becomes a major. (2)
3.3 The magistrate’s court has jurisdiction to issue an insolvency order. (2)
3.4 A mentally ill person cannot enter into a transaction even if he or she acquires only
rights, and the other party incurs only duties. (2)
3.5 The prohibition of a customary marriage between persons on account of their
relationship by blood or affinity is determined by private law. (2)

Question 4 [9]
Answer the following question(s):
4.1 In South African law, there is a rule which stipulates that the nasciturus of a father
who died due to another person’s delict may institute a claim for damages, owing the
loss of maintenance after his or her birth, against the person who is responsible for
the death of his or her father.
(a) In which case was this rule laid down? (2)
(b) On what basis will the damages be calculated in the scenario above? (3)
(c) May the parents of an unborn child validly agree that the father will not be held
responsible for the maintenance of the child after his or her birth? Refer to the
relevant case law in your answer. (4)

Question 5 [5]
Answer the following question(s):
In 2003 Mr and Mrs Selenati went on a ski holiday in the Swiss Alps. While skiing in the Alps,
a huge avalanche swept Mr Selenati away. Mr Selenati could not be found and has been
missing ever since. Mrs Selenati successfully applied for a presumption of death order
regarding her husband who has been missing for 20 years. What will the position be if it
becomes clear that Mr Selenati did not die? Briefly explain the position shortly. (5)

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LOP162
LAW OF PERSONS

Question 6 [7]
Answer the following question(s):
6.1 What do you understand under the concept of “benefit theory”? Which court case
introduced this theory into South African law? (3)
6.2 Does the benefit theory still form part of South African law? Briefly explain the
situation with reference to case law. (4)

ASSIGNMENT TOTAL: [50]

Page 5 of Assignment
 Table of Contents

Heading Page number

INFORMATION

WELCOME 1

Topic 1 Introduction to the Law of Persons 3

1.1 Introduction 3
1.2 Recent Developments in the Law of Persons 3
1.3 An Overview of the Law of Persons 6

Topic 2 Definition of Concepts 8

2.1 Introduction 8
2.2 Definition of the Law of Persons 9
2.3 Law in the Objective Sense and Law in the Subjective Sense 9
2.4 The Different Kinds of Legal Subjects 10

Topic 3 The Beginning of Legal Subjectivity 12

3.1 Introduction 12
3.2 Birth as the Moment When Legal Subjectivity Begins 13
3.3 Protection of the Interests of the Unborn Child 13
3.4 Sterilisation 15
3.5 Termination of Pregnancy 16
3.6 Registration of Births 17

Topic 4 The End of Legal Subjectivity 21

4.1 Introduction 21
4.2 General 22
4.3 Proof and Consequences of the Death of a Legal Subject 23
4.4 Presumption of Death 24
4.5 Problems Surrounding Commorientes 24
4.6 Registration of Deaths 25
4.7 Duty to Bury the Deceased 26

Topic 5 Status: An Introduction 28

5.1 Introduction 28
5.2 The Capacities Relating to Status 28

Topic 6 Domicile and Citizenship 30

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6.1 Introduction 30
6.2 Meaning of Domicile 31
6.3 Significance of Domicile 31
6.4 Kinds of Domiciles 32
6.5 Citizenship 32

Topic 7 Birth and Adoption 34

7.1 Introduction 34
7.2 Birth and Adoption 35
7.3 Children Born of Married and Unmarried Parents 36
7.4 Adoption 39

Topic 8 Minority 42
8.1 Introduction 42
8.2 The Legal Status of an Infans 43
8.3 The Legal Status of a Minor 44
8.4 Termination of Minority 45

Topic 9 Curatorship, Prodigality and Insolvency 47

9.1 Introduction 47
9.2 Curatorship 47
9.3 Prodigality 48
9.4 Insolvency 49

Topic 10 Mental Illness, Physical Disability and the Influence of Alcohol and
Drugs on Capacity 51
10.1 Introduction 51
10.2 Historical Background 52
10.3 Mental Illness 52
10.4 Alcohol and Drugs 54
10.5 The Influence of Physical Disability on Capacity 55

Topic 11 Race, Custom and Religion 57

11.1 Introduction 57
11.2 The Influence of Religion on Legal Status 58
11.3 The Influence of Race on Legal Status 59
11.4 The Influence of Customary Law on Legal Status 59

REFERENCES 61

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 List of Figures

Figure Page number

Figure 1.1 An Overview of the Law of Persons 6

Figure 5.1 The Four Capacities Relating to Status 29
Figure 6.1 The Different Kinds of Domiciles 32
Figure 8.1 The Legal Status of an Infans 44
Figure 8.2 The Legal Capacities of Minors 44
Figure 9.1 The Three Types of Curators and the Functions of Each 47

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 Welcome

Welcome to Law of Persons!

Law of Persons is a 10-credit module offered on NQF level 6.

This module provides you with insight into the basic concepts, terminology and
principles of the Law of Persons. You are familiarised with legal personality, how
it begins and ends, what it entails and what the duties and rights associated with
legal personality are. The module also provides you with knowledge on legal
status and matters having an impact on a person’s legal status. You are
introduced to the sources of the Law of Persons in order to enable you to extract
principles from these sources and apply them to factual situations. The module
also introduces you to the influence and impact of the Constitution of the Republic
of South Africa, 1996 on the Law of Persons.

Upon completion of the module, you will be able to:

1. Demonstrate an in-depth understanding of the basic concepts and
principles of the Law of Persons.
2. Analyse and solve well-defined problems related to the Law of Persons.
3. Identify, analyse, and apply relevant legal principles to factual situations in
contexts involving the Law of Persons.
4. Demonstrate an understanding and appreciation of the influence of
constitutional principles on the Law of Persons.

Note

Any reference to masculine gender may also imply the feminine. Singular may
also refer to plural and vice versa.

Prescribed Reading

H Kruger & A Skelton (eds) The law of persons in South Africa (2018) (Oxford
University Press, Cape Town)
ISBN: 9780190750633

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 Recommended Reading
T Boezaart Law of Persons 7th ed (2021) (Juta, Cape Town)
J Heaton The South African Law of Persons 6th ed (2021) (LexisNexis, Durban)

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 Topic 1
Introduction to the Law of Persons

Prescribed Reading

Before continuing with this study unit, please read the following:
• Kruger et al. (2018: Chapter 1, pages 3–8)

1.1 Introduction

After completing this study unit, you should be able to:

• explain recent developments in the Law of Persons
• give an overview of the Law of Persons

This subject provides an overview of the most important legal principles in this
area of South African law, and how they are or should be interpreted and applied
in court. The study of this subject follows a traditional approach, in the sense
that it focuses on the concept ‘legal subject’. All human beings are recognised as
legal subjects, regardless of their age and capacity to act. Every human being
can therefore have rights, duties and capacities, although the content of these
rights, duties and capacities may vary depending on certain factors, such as the
person’s age or domicile. Further, every human being’s legal subjectivity
commences and ends at a certain stage. The law of persons is thus, truly, a
branch of law that affects each and every human being.

1.2 Recent Developments in the Law of Persons

1.2.1 The Constitution of the Republic of South Africa, 1996

The Bill of Rights, which is found in chapter two of the Constitution of the Republic
of South Africa, 1996 has had a profound effect on the common law and
legislation dealing with the law of persons. The following early cases illustrate
these changes:
• 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 the artificial

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 fertilisation of a married woman, for purposes of registration of birth in J v
Director-General, Department of Home Affairs 2003 (5) SA 621 (CC).
• Same-sex partners were allowed to adopt jointly, so that their children can
benefit from the legally recognised guardianship and care of both adoptive
parents in Du Toit v Minister of Welfare and Population Development 2003
(2) SA 198 (CC).
• The customary law rule of primogeniture, in terms of which male heirs are
favoured, was found to be unconstitutional in Bhe v Magistrate, Khayelitsha
(Commission for Gender Equality as Amicus Curiae) 2005 (1) SA 580 (CC).
The court also held that there should be no distinction between children
born in or outside of marriage.
• In Centre for Child Law v Director-General: Department of Home Affairs
(CCT 101/20) [2021] ZACC 31 (22 September 2021), section 10 of the
Births and Deaths Registration Act 51 of 1992 was declared unconstitutional
as it did not allow unmarried fathers to register the births of their children
in their name when the mother could not do so, or was unwilling to do so.

Section 28(2) of the Constitution has become a key principle in Bill of Rights
jurisprudence. It provides that ‘[a] child's best interests are of paramount
importance in every matter concerning the child’. Interpretation of the
paramountcy principle by the courts has been refined considerably since the
commencement of the Constitution.

The fact that the best interests of the child are paramount does not mean that
they are absolute. In S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA
232 (CC) the court found that section 28(2) is not an ‘overbearing, unrealistic
trump’ that will automatically override other rights. Rather, section 28(2) is a
right in itself and as a right in a non-hierarchical system of rights, it is itself
capable of limitation.

1.2.2 The Children’s Act 38 of 2005

The commencement of the Children’s Act 38 of 2005 (“the Act”) brought about
an even more fundamental change in the traditional law of persons. The main
changes brought about by the Children's Act 38 of 2005 are as follows:
• Protection of the best interests of the child is taken further than section
28(2) of the Constitution. The Act specifies a list of factors to be taken into
account when considering what is in a child’s best interests (section 7(1)
read with section 9).
• The Act replaced the notion of ‘parental authority’ with the concept ‘parental
responsibilities and rights’.
o The Act lowered the age of majority from 21 to 18 years (section 17).

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 o Unmarried fathers now acquire full parental responsibilities and rights
in respect of their children in certain specified circumstances
(section 21). The unmarried father who does not qualify for automatic
parental responsibilities and rights, or any other person who has an
interest in the care, well-being or development of the child, can
conclude and register a parental responsibilities and rights agreement
with the mother of the child or any other person that has such
responsibilities and rights over the child (section 22). Further, the
unmarried father (or other person who has an interest in the care,
well-being and development of the child) may acquire parental
responsibilities and rights through an order of court (sections 23 & 24).
o The legal distinction between children born in and outside of marriage
is significantly reduced.
The Act contains provisions dealing with consent to medical treatment,
operations and HIV testing for children. In terms of the Act a minor over
the age of 12 may consent to medical treatment for himself or herself or
his or her child, provided that the minor is sufficiently mature and has the
mental capacity to understand the benefits, risks and social and other
implications of the treatment. If the minor does not have the required
maturity and mental capacity, his or her guardian’s consent is required
(section 129(2)). With regard to surgery, a minor over the age of 12 years
may consent to the operation on himself or herself or his or her child,
provided the minor is sufficiently mature and has the mental capacity to
understand the benefits, risks, social and other implications of the
operation. The child must also be assisted by his or her parent or guardian
(section 129(3)). The Act contains detailed provisions to provide for what
happens if there is an inability or refusal to consent. HIV testing is dealt
with in some detail and the rules in this regard are similar to the rules
concerning consent to medical treatment (section 130). Access to
contraceptives is also regulated, with parental consent not required if a child
is 12 years or older, although medical practitioners must be involved with
regard to contraceptives other than condoms (section 134).
• The Act regulates surrogacy for the first time in South African law
(Chapter 19). It also contains a new set of provisions dealing with adoption
(Chapter 15).

1.2.3 The Child Justice Act 75 of 2008

In terms of common law, children below the age of seven years were presumed
to lack criminal capacity. This presumption could not be refuted. A child of seven
years or older but under the age of fourteen years was rebuttably presumed to
lack criminal capacity, meaning that the child might be found responsible if the

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prosecution could prove beyond a reasonable doubt that the child had the
required capacity.

The Child Justice Act 75 of 2008 changed the common-law position regarding
children’s criminal capacity. According to the Act, the minimum age of criminal
accountability is now ten years. Children below the age of ten years are
completely unaccountable for their crimes, whereas children between the ages
of ten and fourteen years are rebuttably presumed to be unaccountable
(section 7). Note that, when the Child Justice Amendment Act 28 of 2019 comes
into operation, the minimum age of criminal capacity will be raised to 12 years,
and there will be a presumption that children between the ages of 12 and 14 are
unaccountable.

1.2.4 The Nasciturus Fiction

Another important development that changed the face of the Law of Persons is
the decision of the Supreme Court of Appeal in Road Accident Fund v Mtati 2005
(6) SA 215 (SCA) that it is unnecessary to extend the nasciturus fiction to the
law of delict. This decision settled a long-standing debate in the law of persons.

1.3 An Overview of the Law of Persons

Figure 1.1 An Overview of the Law of Persons

Source: Adapted from Kruger et al. (2018: 8)

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 Self-Assessment Questions

After completing this study unit, you should be able to answer the following self-
assessment question:
1.1 Identify the origin of the recent developments in the Law of Persons.
1.2 Your friend is expecting a baby and she is interested in the law related to
unborn children. Explain to her how the nasciturus fiction is used to
protect the interest of unborn children.

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 Topic 2
Definition of Concepts

Prescribed Reading

Before continuing with this study unit, please read the following:
• Kruger et al. (2018: Chapter 2, pages 11–19)

2.1 Introduction

After completing this study unit, you should be able to:

• define the concept ‘law of persons’
• distinguish between law in the objective and subjective senses
• explain the concepts legal subject and legal object
• list and explain the different kinds of legal subjects

The law of persons is that part of objective law that regulates the coming into
being and the coming to an end of a person (legal subject), and that person’s
private-law status. It deals with the questions of who qualifies as a legal subject
and what a legal subject is legally able to do. As a discipline, it forms part of the
objective law (positive law) which is the norms and rules that prescribe the
conduct of persons.

Objective law is a system of laws and rules, while subjective law deals with the
relationships between legal subjects. Subjective law therefore deals with rights.
In the case of subjective rights, two different kinds of relationship are at stake,
namely the legal relationship between the bearer of the right and other legal
subjects (subject-subject), and the legal relationship between the bearer of the
right and object of the right (subject-object).

Objective law can be subdivided in various ways, one of which is to distinguish

between public law (legal rules that apply when the state acts with state
authority) and private law (rules that apply to legal relationships between legal
subjects (persons). Examples of private-law relationships are the relationship
between contracting parties, and the family-law relationship between spouses.

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In legal interaction a person is called a legal subject. A legal subject is an entity
that can have rights, duties and capacities. A legal object refers to objects upon
which the law has not conferred the capacity to have rights, duties and
capacities. A legal object is anything in respect of which a legal subject may have
rights, duties and capacities.

Four categories of legal objects are usually distinguished, namely corporeal

things, immaterial property, personality property and performance.

There are two categories of legal subjects that can take part in legal interaction,
namely natural persons and juristic persons.

In modern South African law all human beings are regarded as legal subjects. A
juristic person has a legal existence independent from its members. A juristic
person acquires rights, duties and capacities, but it acts through its functionaries.

There are three categories of juristic persons, namely associations established in

separate legislation, associations incorporated in terms of enabling legislation,
and associations which comply with the common requirements for the
establishment of a juristic person.

2.2 Definition of the Law of Persons

Activity 2.1

Define the concept ‘law of persons’.

2.3 Law in the Objective Sense and Law in the Subjective Sense

The law of persons as a discipline forms part of the objective law. The objective
law is also called positive law and can plainly be described as the norms and rules
that prescribe the conduct of persons. This includes, for example:
• Prescriptions that determine that a car must be driven on the left-hand side
of the road.
o A rule that one person may not unlawfully attack another.
o Prescriptions on how a contract or a marriage must be concluded.

A legal subject is a person, whereas that to which a legal subject has a claim is
a legal object.

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A legal object is typically something with economic value. Something with
economic value is relatively scarce, which means that the supply thereof is scarce
in comparison with the demand.

Activity 2.2

Identify and discuss the four (4) categories of legal objects traditionally
distinguished in our law and the corresponding subjective rights. Give an
example of each object and the corresponding subjective right.

2.4 The Different Kinds of Legal Subjects

Kruger et al. (2018) identify two categories of legal subjects that can take part
in legal interaction – natural persons and juristic persons. Both are legal in the
sense that they possess the characteristics by reason of which they can take part
in legal interaction as legal subjects.

Activity 2.3

Describe ‘natural persons’ and ‘juristic persons’, and distinguish between the two
concepts.

A natural person or human being is not the only entity that is recognised as a
legal subject in South African law. Certain associations of natural persons (juristic
persons) are also granted legal personality. A juristic person has a legal existence
independent from its members. It can be the bearer of capacities, rights and
obligations just like a natural person. However, the juristic person must act
through its functionaries.

Activity 2.4

List and briefly explain the three types of juristic persons that are distinguished
in our law. Give an example of each type of juristic person.

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 Self-Assessment Questions

2.1 Define and explain the following terms relating to the law of persons:
o The law of persons.
o Law in the objective sense and law in the subjective sense.
2.2 Explain the concepts legal subject and legal object.
2.3 Explain and briefly discuss the different kinds of legal subjects.
2.4 Your friend is a keen animal lover. She has 2 cats and 4 dogs and wants
to know if animals also qualify as legal subjects.

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 Topic 3
The Beginning of Legal Subjectivity

Prescribed Reading

Before continuing with this study unit, please read the following:
• Kruger et al. (2018: Chapter 3, pages 21–42)

3.1 Introduction

After completing this study unit, you should be able to:

• identify and explain birth as the moment when legal subjectivity begins
• explain the protection of the interests of the unborn child
• explain sterilisation, termination of pregnancy and the registration of births

This unit deals with the beginning of legal subjectivity. According to Kruger et al.
(2018), birth is the moment when legal subjectivity begins. There are
requirements to be met for birth to be recognised as the moment when legal
subjectivity begins. Each legal discipline has its own definition for birth. There
are, however, situations when an unborn child also requires legal protection and
in this respect the nasciturus fiction was discussed. This fiction does not bestow
legal subjectivity on the unborn child, but provides that if it is to the advantage
of the unborn child, he or she will be deemed as already born by keeping his or
her interest open until a live birth occurs.

This fiction also applies specifically in the law of succession. It is unnecessary to

extend the fiction to the law of delict.

Various statutory measures exist to protect the interests of the unborn child.
Sterilisation and termination of pregnancy are also discussed, even though these
topics bear no relevance to the nasciturus fiction.

In the last instance, attention will be paid to the statutory obligation of the
registration of the birth.

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3.2 Birth as the Moment When Legal Subjectivity Begins

Legal subjectivity begins at birth. The meaning of the term ‘birth’ is regulated by
common law. Two requirements are set out in this regard.
• The first requirement is that the birth must be fully completed – the foetus
must be completely separate from the mother’s body. It is not a
requirement for a completed birth that the umbilical cord should have been
cut. The fact that scientific aids were used during the birth process does not
affect the completion of the birth, and neither does the death of the mother.
• The second requirement is that the foetus must have lived independently
after separation from the mother’s body. A stillborn foetus or a foetus that
dies during birth does not acquire legal subjectivity. Any sign of life, even if
only for a moment, may serve as evidence of this. Signs of life include the
fact that the child has breathed or cried, or the detection of a heartbeat.

Medical evidence will, naturally, be very important to prove whether the child
lived for a period of time. It is important to note that each legal discipline has its
own definition of birth. Section 239(1) of the Criminal Procedure Act 51 of 1977
sets out the requirement for evidence in respect of child murder. The child is
deemed to have been born alive if the child is proved to have breathed, even if
the child did not have an independent circulation or if the child was not
completely separated from its mother’s body. In this Act, birth is therefore given
a restricted interpretation depending on the presence or absence of this one sign
of life.

The Births and Deaths Registration Act 51 of 1992 creates an obligation to

register the birth of a child born alive. As there is no requirement that a specific
sign of life must be present, any sign of life should be sufficient to create an
obligation to register a birth.

3.3 Protection of the Interests of the Unborn Child

3.3.1 Protection of the Unborn Child’s Interests by Means of the Nasciturus

Fiction

At birth, a legal subject with legal subjectivity comes into existence. As a legal
subject, a person enjoys the protection of the law. The unborn child also requires
legal protection in certain situations governed by private law. Protection of this
nature was granted to unborn children in Roman law by virtue of the so-called
nasciturus fiction.

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In Roman law the fiction was expressed as follows: nasciturus pro iam nato
habetur quotiens de commodo eius agitur, which means that if it is to the
advantage of the unborn child (nasciturus), he or she is deemed to have already
been born and his or her interests are kept open. This fiction of the Roman law
later became part of Roman-Dutch law, where it was specifically applied in the
field of the law of succession. It still forms part of modern South African law.

Activity 3.1

List and briefly discuss the requirements for the application of the nasciturus
fiction.

The only remaining area in our law where the nasciturus fiction finds application
is the law of succession. In this regard, it is important to distinguish between
intestate and testate succession. Intestate succession determines who would
inherit a person’s assets if the person dies without leaving a valid will, whereas
testate succession involves the rules that apply when the deceased died leaving
behind a valid will. The nasciturus fiction applies to both intestate and testate
succession.

Activity 3.2

Distinguish between intestate and testate succession, and explain how the
nasciturus fiction is applied in both these divisions of the law of succession.

Previously, the nasciturus fiction was applied in the law of delict, in terms of the
decision in Pinchin v Santam Insurance Co Ltd 1963 (2) SA 254 (W). This case
gave rise to vigorous debate and criticism. Fortunately, the uncertainty ended
when Road Accident Fund v Mtati 2005 (6) SA (SCA) was decided. In this case
the Supreme Court of Appeal held that the application of the nasciturus fiction in
the law of delict was unnecessary and incorrect – the ordinary rules of the law of
delict could be used in cases like these.

Activity 3.3

Briefly discuss the decision in Road Accident Fund v Mtati 2005 (6) SA (SCA).

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3.3.2 Protection of the Unborn Child’s Interests in Succession

Our law contains several other rules and provisions, apart from the nasciturus
fiction, by means of which the interests of unborn children, or even children who
have yet to be conceived, are protected.

Activity 3.4

Identify and discuss the following measures, other than the nasciturus fiction,
that deal with the protection of the unborn child’s interests in succession:
• Common-law measures.
• Statutory measures.

3.4 Sterilisation

The Sterilisation Act 44 of 1998 allows the voluntary sterilisation of any person
who has reached the age of 18 years and is capable of consenting. Sterilisation
is defined in the Act as ‘a procedure by means of which a person could be
permanently rendered incapable of fertilisation or reproduction’.

Consent to sterilisation must be given freely and voluntarily and without any
inducement by the person to be sterilised. Consent may be given only if the
consenting person has been given a clear explanation of the
• proposed procedure and its consequences, and
• the risks and the reversible or irreversible nature thereof.

A consenting person must also indicate that he or she was advised that the
consent may be withdrawn at any time before undergoing the procedure.

A person under the age of 18 years may be sterilised if failure to perform the
sterilisation would place such person’s life in danger or seriously impair his or
her health. The sterilisation may take place only with the consent of the person’s
parent, spouse, civil union partner, guardian or curator.

An independent medical practitioner must consult the person and provide a

written report, indicating that the sterilisation is in the person’s best interests.
In addition, the desirability of the sterilisation must be evaluated by a panel
consisting of a psychiatrist (or medical practitioner if no psychiatrist is available),
psychologist or social worker and a nurse.

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The Act also contains special provisions regulating the sterilisation of persons
who are incapable of consenting, or incompetent to consent. Such a person may
be sterilised only if he or she is mentally disabled to such an extent that he or
she is incapable of:
• making his or her own decision about contraception or sterilisation;
• developing the mental capacity to make an informed decision about
contraception or sterilisation; and
• fulfilling the parental responsibilities associated with giving birth.

If these requirements are met, the consent of the person’s parent, spouse, civil
union partner, guardian or curator must be obtained. A panel consisting of a
psychiatrist (or medical practitioner if no psychiatrist is available), psychologist
or social worker, and a nurse must agree that the sterilisation may be performed.
When considering its decision, the panel must take all relevant facts into account,
including:
• the person’s age;
• whether other safe and effective alternatives to sterilisation exist;
• the person’s mental and physical health and well-being;
• the potential effect of the procedure on the person’s mental and physical
health and well-being;
• the nature of the sterilisation procedure to be performed;
• the likelihood that the person will become capable of consenting to
sterilisation;
• whether the sterilisation is in the person’s best interests; and
• the benefit the person may derive from the sterilisation.

Whenever a sterilisation is performed, the method posing the smallest risk to the
patient’s health must be used.

3.5 Termination of Pregnancy

The Choice on Termination of Pregnancy Act 92 of 1996 came into effect on 1

February 1997, repealing the Abortion and Sterilisation Act 2 of 1975 to the
extent that it was applicable to abortion.

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 Activity 3.5

Identify and discuss the following aspects regarding the termination of

pregnancy:
Circumstances under which pregnancy may be terminated.
Who must consent to the termination of a pregnancy?
Constitutional issues relating to termination of pregnancy.

3.6 Registration of Births

The Births and Deaths Registration Act 51 of 1992 regulates registration of births.
It prescribes that the Director-General of Home Affairs (or any other person to
whom the Director-General has delegated his or her powers and duties) must be
notified of the birth of every child born alive.

The child’s parents are tasked with the responsibility to register a birth within 30
days of the child’s birth. If the child’s parents are deceased, notice of the birth
must be given by the child’s next-of-kin or legal guardian (section 9(1)). In the
case of abandoned children, notice is given by a social worker or authorised
officer after an enquiry had been undertaken in terms of the Children’s Act 38 of
2005. The same procedure is followed to register the birth of an orphaned child.

A birth may not be registered unless a forename (first name) and a surname
have been assigned to the child. Notice of the birth of children born to parents
who were married to each other at the time of the child's conception, birth, or
any intervening time is given under the surname of either parent or both parents’
names joined together as a double-barrel surname. This applies regardless of
whether the child’s parents entered into a civil union, a civil marriage or a
customary marriage (in terms of the definition of ‘marriage’ in section 1 of the
Births and Deaths Registration Act). As this definition does not include a religious
marriage, children born of parties to religious marriage cannot be registered as
children born of married parents even though their parents have joint parental
responsibilities and rights in terms of the Children’s Act. This is an illogical
position. It is even more problematic in view of the fact that the Supreme Court
of Appeal declared the common-law definition of ‘marriage’ unconstitutional to
the extent that it excludes Muslim marriage (President of the RSA v Women’s
Legal Centre Trust (United Ulama Council of South Africa and others as amici
curiae) and Related Matters [2021] 1 All SA 802 (SCA)).

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Previously, there was a distinction between children born in and outside of
marriage as far as registration of birth was concerned. Notice of the birth of a
child born of parents who were neither married to each other, nor civil union
partners at the time of the child’s conception, birth, or any intervening time was
given under the surname of the child’s mother. Notice of birth could be given
under the name of the natural father only if both he and the mother jointly
requested this, and if the father acknowledged his paternity in writing in the
presence of the person to whom the notice of birth was given and entered his
particulars on the notice of birth (section 10). The Constitutional Court brought
an end to this distinction between children born in and outside of marriage in
Centre for Child Law v Director-General: Department of Home Affairs (CCT
101/20) [2021] ZACC 31 (22 September 2021). In this case the court declared
section 10 of the Births and Deaths Registration Act to be unconstitutional as it
infringed unmarried father’s rights to equality and dignity. It also infringed born
of unmarried parents’ rights to equality and dignity, their right to a name and
nationality from birth, and their right to have their best interests given
paramount consideration. This decision will ensure that, where an unmarried
mother is not willing or able to register the birth of her child, the father would be
able to do so.

If a father wishes to acknowledge paternity and enter his particulars on the notice
of birth after the child’s birth, has been registered, he may do so with the consent
of the child’s mother. If the mother refuses to consent, the father may approach
the High Court for a declaratory order confirming his paternity and dispensing
with the mother’s consent (section 11) However, a gamete donor and the father
of a child who was conceived as a result of rape or incest may not have the child’s
birth registration amended to identify him as the father.

If unmarried parents of a child enter into a civil marriage or civil union after the
registration of the child’s birth, the birth registration will be amended after
application to the Director-General, and the birth will be registered as if the
parents were legally married to each other or were partners in a civil union at
the time of the child's birth. This application may be brought by either of the
child’s parents, or by the child’s guardian if the child is a minor, or by the child
personally if he or she is already a major.

Before the enactment of section 40 of the Children’s Act 38 of 2005, notice of

the birth of a child born as a result of artificial fertilisation of a lesbian partner in
a same-sex life partnership was given under either the birth mother’s surname
or her same-sex life partner’s surname, or both of their surnames joined together
as a double-barrel surname.

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This position was the result of the decision in J v Director-General, Department
of Home Affairs 2003 (5) SA 621 (CC), where the Constitutional Court placed a
child born as a result of the artificial fertilisation of a lesbian life partner in the
same position as a child born as a result of the artificial fertilisation of a married
woman.

Section 5 of the Children’s Status Act 82 of 1987 treated children born as a result
of the artificial fertilisation of a married birth mother differently from a child born
as a result of the artificial fertilisation of a birth mother who was a partner in a
same-sex life partnership. The section gives the child the status of a ‘legitimate’
child if his or her birth mother was married, but not if she were a party to a
same-sex life partnership. The court found that this section discriminated unfairly
against same-sex life partners on the ground of their sexual orientation, and that
this discrimination was unjustifiable. Consequently, section 5 of the Children's
Status Act was declared unconstitutional.

After this decision, the Children’s Act repealed the Children’s Status Act in its
entirety. However, section 40 of the Children’s Act re-enacted the unamended
section 5 of the Children’s Status Act. For partners in civil unions, this does not
create a problem as the Civil Union Act 17 of 2006 places civil unions and civil
marriages on an equal footing. As a result, a child born as a result of the artificial
fertilization of a civil union partner is a child born of married parents. However,
as far as same-sex couples are concerned who are partners in a union that falls
outside the scope of the Civil Union Act, section 40 of the Children’s Act applies.
This provision is subject to the same constitutional attack as section 5 of the
Children’s Status Act.

Section 25 of the Births and Deaths Registration Act deals with the change of a
minor’s surname. Upon ending of a civil marriage or civil union by means of the
death of the child’s father, the child’s surname may be changed to the mother’s
surname. The same applies if the marriage or civil union is dissolved by divorce
and the mother has sole guardianship, or the child’s father consents to the
change of surname. The court may dispense with the father’s consent. If the
child's mother enters into a new marriage or civil union, she may apply to have
the child’s surname changed to correspond with her surname.

If an unmarried mother marries someone other than the child’s father or enters
into a civil union with someone other than the child’s father, she may apply to
have the child’s surname changed to correspond with hers, with the written
consent of her husband or civil union partner.

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If the child is registered under his or her father’s surname, the mother also needs
the written consent of the child’s father, unless the mother has sole guardianship
or the court dispenses with the father’s consent.

The Births and Deaths Registration Act allows for the change of a person’s
forename and/or surname for good and sufficient reason. In the case of the
forename or surname of a minor, the application for the change must be made
by either of the child’s parents or by the child’s guardian. An adult personally
applies for the change of his or her forename or surname.

Self-Assessment Questions

3.1 You have a client who lost her baby at birth. The baby was due to inherit
an amount of money from your client’s father. Explain to your client birth
as the moment when legal subjectivity begins. In your response, also
explain the meaning of the term ‘birth’ in terms of the common law.
3.2 Explain the protection of the interests of the unborn child.
3.3 Explain the concepts sterilisation, termination of pregnancy and
registration of births.
3.4 See self-assessment question 1.2 in Topic 1 above. Answer the question
again after you have studied Topic 3.

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 Topic 4
The End of Legal Subjectivity

Prescribed Reading

Before continuing with this study unit, please read the following:
• Kruger et al. (2018: Chapter 4, pages 43–56)

4.1 Introduction

After completing this study unit, you should be able to:

• explain how it is determined if somebody has died and what the legal
consequences of the death of a legal subject are
• explain the legal principles applicable to presumption of death
• explain the legal problems surrounding commorientes
• explain how registration of deaths is regulated in our law
• explain the duty to bury the deceased, and how it is determined where a
deceased will be buried

This unit focuses on the termination of legal subjectivity. It is clear that the death
of a legal subject will end his or her legal subjectivity. Thus far, there is no legal
definition for death, yet the death of a legal subject has very important legal
consequences which set in as soon as it has been proven that the legal subject
has died.

It may occur that a person disappears without any evidence that he or she has
died. In cases where that person’s spouse or civil union partner desires to
remarry, or where the missing person’s estate needs to be administered for
whatsoever reason, application may be made, in terms of the common law, by a
person having an interest in the death of the missing person, to a court for a
presumption of death order.

A presumption of death order does not terminate the legal subjectivity of the
missing person as the court merely finds on a preponderance of probabilities that
the missing person is presumed dead. An order may also be given in terms of
statutory law in circumstances which raise doubt as to whether a person’s death
was due to natural causes, or where a person’s body cannot be found.

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In terms of a statutory order, the State takes the initiative and the court must
find, beyond all reasonable doubt, that the person is dead before it will record a
finding that the person is presumably dead. An order granted in terms of the
common law does not automatically terminate the marriage of the missing
person and a separate application must be brought, subsequent to the
presumption of death order, by the missing person’s spouse or civil union partner
in terms of the Dissolution of Marriages on Presumption of Death Act 23 of 1997
to dissolve the marriage.

Upon an order being granted, the estate of the missing person may be divided
among his or her heirs on condition that the heirs provide security for the return
of the inherited goods, or the corresponding value thereof, should the missing
person reappear. In the event of a simultaneous death, the legal position is that
the moment of death of commorientes (persons who die more or less
simultaneously in the same disaster) is a question of fact. Should evidence be
lacking that the people did not die simultaneously, a court will simply find that
they did die simultaneously.

The Director-General of Home Affairs must be notified of the death of a person.

No person may be buried or cremated before a burial order has been issued in
terms of the Birth and Deaths Registration Act 51 of 1992.

4.2 General

The natural person’s legal subjectivity is ended by his or her death. Although this
sounds obvious, it is not always so simple. Courts rely on medical evidence to
determine whether someone has died, and at what moment the person died. No
legal definition for death has been formulated in our law yet.

There are many medical theories about the precise moment that death occurs.
Usually, death is associated with the permanent ending of the vital functions of
the brain (somatic death). Somatic death occurs with the permanent ending of
the functions of the vital nerve centres of the brain stem, and the individual
ceases to exist as a functional whole.

As death is a juristic fact with legal consequences, the importance of formulating

a legal definition for death can hardly be over-emphasised. As legal subjectivity
is terminated by death, a dead body has neither rights nor obligations and is a
thing.

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Even so, the law protects the deceased’s body and regulates its handling and
disposal. This is done to protect interests such as public health, respect for the
feelings and sensibilities of the deceased’s relatives and respect for the dead.

4.3 Proof and Consequences of the Death of a Legal Subject

The death of a natural person has important legal consequences. These

consequences set in as soon as it is proved that a person is dead. Should any
person allege that somebody is dead, he or she must prove this. The death of a
person can essentially be proved in the following two ways.

4.3.1 Death Certificate

Usually, a person’s death is proved by means of a death certificate issued by a

medical practitioner. If the death was due to natural causes, the certificate
indicates the cause of death. If the death was due to unnatural causes, or if there
is a suspicion that the death was due to unnatural causes, an inquest is held,
and the cause of death is not stated.

Once the death has been reported to the Director-General of Home Affairs and
registered, an official death certificate is issued by the Director-General. The
death certificate is prima facie proof of the death of the person identified therein.
This means that the death certificate can be accepted as proof of death, unless
the opposite is proved.

4.3.2 Direct Evidence

Death certificates are typically issued by medical practitioners who have

inspected the body of the deceased. It is, however, not always possible to take
a medical practitioner to the body of a deceased in order to issue a death
certificate. In such cases, the death of the deceased person is confirmed by the
direct evidence of another person. The High Court can be approached for an
order certifying that the person concerned is dead. The evidence of a person who
saw the body of the deceased may be presented as direct evidence to prove that
the body was in fact that of the deceased.

In private law, proof of death is important for the following two reasons:
• Once death has been proved, the deceased’s estate may be administered
and distributed among the heirs.
• The surviving spouse or civil union partner, if any, may enter into a new
marriage or civil union.

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4.4 Presumption of Death

When there is no body in respect of which a doctor can issue a death certificate,
and nobody can testify that the missing person is actually dead, the situation
becomes very difficult. A typical example is when a person simply disappears and
there is no evidence that he or she is indeed dead. This could be problematic,
as:
• The missing person’s estate cannot be administered.
• His or her insurance policies and pension cannot be paid out.
• The missing person’s spouse or civil union partner cannot enter into a new
marriage or civil union.

In cases like these an application must be made to the High Court for an order
that the missing person is presumed dead. It is essential to note that a court
does not declare a person dead – it merely makes an order presuming that the
person is dead.

A presumption of death can either be ordered in terms of common law, or in

terms of statutory provisions. The statutory procedure is an alternative
procedure which can be used to obtain an order of presumption of death in cases
where a person died of unnatural causes. The statutory procedure does not
exclude the common-law procedure. Any interested person can approach the
court in terms of the common-law procedure.

Activity 4.1

Answer the following questions regarding presumption of death:

• List and briefly explain the factors to be considered by the court in an
application for presumption of death in terms of common law.
• Distinguish between presumption of death in terms of common-law and
statutory procedures. In you answer, indicate who approaches the court in
each instance, and what the burden of proof is in each instance.
• Explain the consequences of an order of presumption of death.

4.5 Problems Surrounding Commorientes

Commorientes are persons who die more or less simultaneously in the same
disaster.

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In certain circumstances it may become necessary to determine the sequence in
which two or more persons died, for example where it has to be determined
whether one person inherited from the other. A person can only inherit from
another person if the former person is alive at the time of the latter person’s
death.

In modern South African law, the position is that in cases where the sequence of
death cannot be proved on a balance of probabilities, there is no presumption of
either survival or simultaneous death. The moment of death of commorientes is
a question of fact, and if there is not enough evidence to prove the contrary, a
court will make an order that the persons died simultaneously.

4.6 Registration of Deaths

The Births and Deaths Registration compels certain persons to notify the
Director-General of Home Affairs, or a person duly authorised by the Director-
General, of a death, regardless of whether the death was due to natural or
unnatural causes. The Director-General or his or her duly appointed
representative must also be notified of a stillbirth.

In the case of a death due to natural causes, this duty rests on any person:
• present at the death, or
• who became aware of the death, or
• who is in charge of the deceased’s funeral.

The Director-General, or the medical practitioner who attended to the deceased

before his or her death or examined the body, must report the matter to the
police in situations where there is a suspicion that the death was a result of
unnatural causes. In these situations, an inquest will be held in terms of the
Inquests Act 58 of 1959. After the inquest has been conducted, and the body is
no longer needed for examination, the death may be registered and a burial
order issued. The cause of death will not be stated in the death register.

There is a similar duty to report the death of a stillborn child. The medical
practitioner who was present at the stillbirth or examined the stillborn child’s
body must notify the Director-General of the stillbirth. If no medical practitioner
was present at the stillbirth or examined the child’s body, anyone who was
present at the child’s stillbirth must notify the Director- General.

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4.7 Duty to Bury the Deceased

Deceased persons may not be buried or cremated before a burial order has been
issued in terms of the Births and Deaths Registration Act. Once the prescribed
notice of death or stillbirth has been given, the burial order is issued. It is
important to note the following in terms of the duty to bury the deceased:
• The deceased’s written, or even verbal, instructions relating to his or her
funeral, cremation and/or burial place must be carried out as far as possible
and permissible.
• Clear proof must be provided of verbal instructions, especially if they
contradict the deceased’s written instructions given at a different time.
• If the deceased did not give any instructions, his or her heirs have the right
and duty to determine the deceased’s burial place and make the funeral
arrangements.
• It has been held that in the case of conflict between the heirs on the funeral
or cremation arrangements or burial place, the surviving spouse has a
‘paramount’ right to decide on these issues. However, this principle is not
applied consistently. In some divisions it has been held that the court should
consider various factors, including the deceased's family relationships and
the wishes of the surviving spouse.

In terms of section 20(1) of the Births and Deaths Registration Act, read with
the definition of “still-born” and “still-birth” in section 1 of the Act, a notice of
still-birth may only given in respect of a foetus that survived to 26 weeks of
pregnancy. A burial order can therefore not be issued in respect of a foetus who
did not survive for at least 26 weeks, and such remains are disposed of as
“medical waste”.

However, in Voice of the Unborn Baby NPC v Minister of Home Affairs 2021 (4)
SA 307 (GP), the Gauteng Division of the High Court declared the 26-week
requirement unconstitutional as it violates the right to dignity of parents of
foetuses that are miscarried before that time. The court suspended the
declaration of unconstitutionality for 12 months to give Parliament an opportunity
to amend the legislation. The court ordered that, in the meantime, it would not
be unlawful to notify the Director-General of a stillbirth that took place before 26
weeks, and officials of the Department of Home Affairs may not refuse to issue
a burial order in respect of such foetus. This decision was not yet confirmed by
the Constitutional Court when this study guide was written.

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Note that the court’s order applies only in respect of foetuses who were
miscarried, and not to foetal remains from pregnancies terminated in terms of
the Choice on Termination of Pregnancy Act 92 of 1996.

Self-Assessment Questions

4.1 Describe how death is proven and explain the consequences of the death
of a legal subject.
4.2 Discuss the legal principles relating to the presumption of death.
4.3 Discuss the legal problems surrounding commorientes.
4.4 Discuss how registration of deaths is regulated in our law.
4.5 Discuss the duty to bury the deceased, and how it is determined where a
deceased will be buried.

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 Topic 5
Status: An Introduction

Prescribed Reading

Before continuing with this study unit, please read the following:
• Kruger et al. (2018: Chapter 5, pages 59–65)

5.1 Introduction

After completing this study unit, you should be able to:

• explain the terms legal capacity, the capacity to act, the capacity to litigate
and the capacity to be held accountable for crimes and delicts

Status refers to a person’s standing in the legal world. A person’s status is

influenced by several factors, including domicile and citizenship, birth outside
marriage, age, certain impediments based on economic considerations (such as
prodigality and insolvency), physical and mental incapacity, intoxication, custom
and religion.

A person’s status is determined by the capacities allocated to that person by the

law in an objective sense. These capacities traditionally include legal capacity,
capacity to act and capacity to litigate. A fourth capacity, the capacity to be held
accountable for crimes and delicts, is added by some authors.

Legal capacity is the capacity to have rights and duties. Capacity to act is the
capacity to perform valid juristic acts. Capacity to litigate is the capacity to bring
and defend an action at law. A person is accountable for crimes and delicts if that
person has the necessary mental ability to appreciate the difference between
right and wrong and act in accordance with that appreciation.

5.2 The Capacities Relating to Status

Kruger et al. (2018) identify four capacities relating to status. The capacities are
as follows:

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 Figure 5.1 The Four Capacities Relating to Status
Source: Kruger et al. (2018: 61)

Activity 5.1

Define and explain the concept status. Then explain the four (4) capacities
relating to status.

Self-Assessment Questions

Define and explain the terms legal capacity, the capacity to act, the capacity to
litigate and the capacity to be held accountable for crimes and delicts.

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 Topic 6
Domicile and Citizenship

Prescribed Reading

Before continuing with this study unit, please read the following:
• Kruger et al. (2018: Chapter 6, pages 67–83)

6.1 Introduction

After completing this study unit, you should be able to:

• define domicile and explain the meaning, significance and application of
domicile
• identify and describe kinds of domicile
• explain the legal principles relating to citizenship

In most continental legal systems, a person’s private-law status is determined

by the law of the country in which the person is a citizen (the lex patriae).
However, in South African law a person’s status in private law is generally
determined by the law of the place where the person is domiciled (the lex loci
domicilii or domiciliary law).

Uncertainty in the South African law of domicile resulted in an investigation by

the then South African Law Commission into this field of laws with a view to
reforming the law of domicile. This investigation and the subsequent
recommendations led to the adoption of the Domicile Act 3 of 1992 on 1 August
1992. Although the Domicile Act has modified the common law of domicile, it
cannot be seen as a comprehensive code of domicile for South African law. To
the extent that the common law has not been amended by the Act, it will remain
a secondary source of the law of domicile. The Domicile Act is not retrospective
in operation. It does not affect any right, capacity, obligation or liability that was
acquired, accrued or incurred by virtue of the domicile a person had at any time
before 1 August 1992. Furthermore, it does not affect the legality of any act
performed before that date. Therefore, the domicile that a person had at any
time before 1 August 1992 will be determined as if the Act had not come into
operation, whereas the domicile that a person has at any time after 1 August
1992 will be determined as if the Act had always been operative.

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6.2 Meaning of Domicile

Domicile has been referred to as a person’s home for legal purposes, and as a
person’s ‘centre of gravity’, where rights, duties and capacities can be imputed
on him or her. Domicile can be defined as ‘the place where a person is legally
deemed to be constantly present, for the purpose of exercising his or her rights
and fulfilling his or her obligations, even when that person is factually absent
from that place’.

This definition takes into account that:

• a domicile can sometimes be ascribed to a person at a place where that
person does not have his or her home or residence
• a person can sometimes acquire a domicile by operation of law, a process
in which choice plays no role

Domicile is not the same as residence. Although a person’s domicile is usually

also his or her permanent residence, residence in the ordinary sense of the word
(that is, the place where a person eats and sleeps) is not necessarily the same
as domicile in the legal sense. In order to acquire a domicile in the legal sense
of the word, the person must have the intention to settle at the particular place
for an indefinite period.

6.3 Significance of Domicile

A person’s domicile plays a significant role in many fields of private law. A

person’s status in private law is determined by the law of the place where that
person is domiciled. Whether a person is a minor will, for example, be determined
with reference to the law of the place where the person is domiciled. In situations
where it has to be determined whether or not a person has the capacity to marry
or enter into contracts, the law of the place where the person is domiciled when
entering into the relevant act will apply.

Activity 6.1

Explain the role played by domicile in the following aspects of private law:
• the matrimonial property system of a marriage
• how a testator’s property will devolve when he of she dies with and without
a valid will respectively.
• the court’s jurisdiction

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6.4 Kinds of Domiciles

Kruger et al. (2018) identify two groups of persons distinguished by the Domicile
Act – those persons who are:
• competent to choose their own domicile (the so-called domicile of choice)
• not competent to choose their own domicile (the so-called domicile by
operation of law).

Figure 6.1 The Different Kinds of Domiciles

Source: Kruger et al. (2018: 73)

Activity 6.2

Explain the following kinds of domiciles:

• Domicile of choice.
• Domicile by operation of law.

6.5 Citizenship

In South African law, a person’s status in private law is generally determined by

the law of the place where the person is domiciled (the lex loci domicilii or
domiciliary law).

‘Domicile’ is not the same as ‘nationality’ (or citizenship). Both these concepts
are of importance when determining a person’s status. Nationality is the point of
departure when a person’s status in terms of public law must be established.
Domicile is of importance when determining a person’s status in terms of private
law.

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In private law, citizens and non-citizens are treated equally – Nationality is of
little importance. Non-citizens are also subject to the law of the land, and cannot
plead ignorance of the law for disobeying it.

In the sphere of public law a person’s status as citizen or non-citizen becomes

relevant. This is reflected in the extent to which matters relating to citizenship
and nationality are included in the Constitution of the Republic of South Africa,
1996.

Activity 6.3

Summarise the following aspects relating to citizenship:

• Acquisition of South African citizenship.
• Loss, renunctiation and deprivation of South African citizenship.
• Citizenship and nationality under the Constitution.

Self-Assessment Questions

6.1 You have a client who lives in more than one country (3 months per year
in each country). She has read an article about domicile. She is
unfortunately still confused and therefore wants your opinion. Write a
short memorandum to her in which you explain the meaning, significance,
and application of domicile.
6.2 Explain and distinguish between the different kinds of domicile.
6.3 Explain the legal principles relating to citizenship.

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 Topic 7
Birth and Adoption

Prescribed Reading

Before continuing with this study unit, please read the following:
• Kruger et al. (2018: Chapter 7, pages 85–111)

7.1 Introduction

After completing this study unit, you should be able to:

• explain the legal term ‘children born of unmarried parents’
• explain how birth as a result of artificial fertilisation and/or surrogacy affects
a person’s status
• explain the legal principles applicable to proof of paternity
• explain the relationship between a child and his or her unmarried parents
• explain the term ‘adoption’, and indicate who must consent to adoption
• explain how adoption affects a person’s status

This unit deals broadly with the influence of birth and adoption on the status of
a person. The Children’s Act 38 of 2005 brought about a shift in terminology
away from ‘children born out of wedlock’ or ‘illegitimate children’. This chapter
refers to ‘children born of married/unmarried parents’. Children are regarded as
born of unmarried parents when their biological parents were neither married to
each other, nor partners in a civil union, at the time of conception or birth or at
any stage between these dates.

A child born as a result of artificial fertilisation of a married woman with the

gametes of her husband is regarded as having been born of married parents.
When a married woman is impregnated with the gametes of a third party donor
with the consent of her spouse or partner, the child will also be regarded as
having been born of married parents. A child born of a single woman with the
use of artificial fertilisation is regarded as a child born of unmarried parents.

The Children’s Act 38 of 2005 contains a chapter on surrogate motherhood.

Surrogacy is legally recognised in certain circumstances. It may take place only
for altruistic reasons.

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The parties must enter into a valid surrogate motherhood agreement, and this
agreement must be confirmed by the High Court. Surrogate motherhood is
permitted only if the child is genetically related to the commissioning parent.
When a parent is single, the use of a name of that person is obligatory.

In a paternity dispute, there is a presumption that where a child is born to a

woman who is married (or a partner in a heterosexual civil union), her spouse or
civil union partner is presumed to be the father of the child. This presumption is
rebuttable and the husband or civil union partner may prove on a balance of
probabilities that he is not the father of the child.

There is still uncertainty in our law on the question whether the courts can compel
adults and children to undergo blood tests in order to determine paternity. The
unit delineates the conditions in which paternal consent for adoption is – or is
not – required.

The biological mother of a child, whether married or unmarried, has full parental
responsibilities and rights in respect of her child (Children’s Act 38 of 2005
section 19(1)). The biological father has full parental responsibilities and rights
in respect of the child if he is married to the child’s mother, or he was married
to her at the time of the conception or birth or any date in between these two
dates.

Unmarried fathers acquire full parental responsibilities and rights in respect of

their children in the circumstances set out in section 21(1) of the Children’s Act
38 of 2005. Adoption is an important factor determining status as it creates new
relationships between a child and his or her adoptive parents, and terminates
the parental responsibilities and rights between the child and his or her biological
parents.

7.2 Birth and Adoption

Kruger et al. (2018) assert that there are two aspects that influence the status
of a person:
• Birth, specifically:
o Birth to parents who are not married or partners in a civil union.
o Birth by way of artificial insemination; and/or surrogacy.
• Adoption.

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Neither of these aspects influence the general status of a person within the
community. They do, however, affect the legal rights and duties between the
person and members of his or her family.

7.3 Children Born of Married and Unmarried Parents

Legal views differ on whether the law continues to distinguish between children
born of married parents and those of unmarried parents. Clearly there are
differences in the status of the parents, but does this affect the children? For as
long as a difference is made in law between the responsibilities and rights of
married parents and those of unmarried parents, the status of the child remains
affected to some extent. Although the instances of differentiation between these
two groups have considerably lessened, some differences still exist. These
differences make it necessary to make a distinction between children born of
married parents and children born of unmarried parents.

Children born of married parents:

• Where the biological parents of the child were married to each other (or
were partners in a civil union) at the time of conception or birth of the child
or at any stage in between these dates.
• Children whose parents subsequently married each other, irrespective of
whether they could have married each other at the time of conception or
birth of the child, as well as children born of a putative or voidable marriage.
• An adopted child is regarded as the child of the adoptive parents. If the
adoptive parents are married, or in a civil union, the child would be regarded
as the child of married parents. If the adoptive parent is single, the child
will be regarded as a child of unmarried parents and only the adoptive
parent has parental responsibilities and rights towards that child.

As the marital status of the parents is of importance, it is essential to determine

who the parents of the child are. In most instances the determination of the
biological parents is not problematic or controversial. Two problem areas do
however exist, namely artificial fertilisation and surrogacy, where the biological
parents are not necessarily the legal parents.

7.3.1 Artificial Fertilisation

Artificial fertilisation is defined in the Children’s Act 38 of 2005 to mean ‘the

introduction, by means of other than natural means, of a male gamete into the
internal reproductive organs of a female person for the purpose of human
reproduction.

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This can include the bringing together of a male and female gamete outside the
human body with a view to placing the product of a union of such gametes in the
womb of a female person’.

Activity 7.1

• Define the term ‘artificial fertilisation’.

• Summarise the legal principles applicable to the status of children born as
a result of artificial fertilisation.

7.3.2 Surrogacy

The Children’s Act 38 of 2005 contains a chapter on surrogate motherhood.

These sections focus on the new provisions set out in the Act. Apart from the
provisions in the Children’s Act 38 of 2005, regard must also be given to the
Constitution, specifically the right to parental care and the fact that the best
interests of the child are of paramount importance in all matters relating to the
child. What would be in the best interests of the child would depend on the facts
of each matter as interpreted in light of the Children’s Act 38 of 2005 and judicial
precedent.

Activity 7.2

• Describe the two forms of surrogacy.

• Summarise the legal principles applicable to surrogacy agreements.
• Explain how birth as a result of surrogacy affects a child’s status.

7.3.3 Proof of Parentage

The largest dispute relating to proof of parentage typically deals with disputed
fatherhood. The birth mother is mostly also the biological mother. Determining
who the legal parents of a child are, is, in general, dependent on knowledge
about whose biological material (gametes) resulted in the conception of the child.

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 Activity 7.3

Summarise the aspects relating to ‘proof of parentage’ under the following

headings:
• The two presumptions that assist with the determination of paternity.
• Relevant factors in paternity disputes.
• Scientific paternity testing, in particular the question whether the court can
compel a person to submit to a paternity test.

7.3.4 Legal Relationship between a Child and His or Her Unmarried Parents

Parental responsibilities and rights in respect of a child include the right to care
for the child, to maintain contact with the child, to act as guardian of the child,
and to contribute to the maintenance of the child (Children’s Act section 18(2)).
The obligations of a guardian are set out in section 18(3).

As far as the parental responsibilities and rights of a mother is concerned, the

Children’s Act confirms the common-law position that the biological mother of a
child has full parental responsibilities in respect of a child, whether she is married
or unmarried (section 19(1)). When the biological mother is an unmarried minor,
neither she nor the child’s biological father has guardianship of the child. In a
case like this the guardian of the child’s biological mother is also the guardian of
the child (section 19(2)).

Section 21(1) of the Children’s Act regulates the parental responsibilities and
rights of unmarried fathers. An unmarried biological father acquires full parental
responsibilities and rights in respect of a child in the following circumstances:
• If he is living with the child’s mother in a permanent life partnership at the
child’s birth; or
• If he, regardless of whether he has lived or is living with the mother,
consents to be identified or successfully applies to be identified as the child’s
father or pays damages in terms of customary law; and contributes (or has
attempted in good faith to contribute) to the child’s upbringing for a
reasonable period; and contributes (or has attempted in good faith to
contribute) towards expenses in connection with the maintenance of the
child.

Unmarried fathers who do not qualify for automatic parental responsibilities and
rights may conclude a parental responsibilities and rights agreement with the
mother of the child (or any other person with parental responsibilities and rights

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(section 22). The unmarried father may also acquire parental responsibilities and
rights by means of a court order (sections 23 and 24).

There is no difference in the intestate or testate succession rights of children

born of married and unmarried parents.

Activity 7.4

• Define the concept ‘parental responsibilities and rights’.

• Explain the legal principles applicable to the parental responsibilities and
rights of mothers and unmarried fathers respectively.
• Explain how birth to unmarried parents affects a child’s right to inherit
intestate and testate respectively.

7.4 Adoption

Adoption creates new relationships between a child and his or her adoptive
parents that did not exist prior to the adoption and is therefore an important
status-determining factor. In addition, adoption obliterates the parental
responsibilities and rights between the child and his or her biological parents.

The Children’s Act 38 of 2005 contains a new set of provisions dealing with
adoption. Section 18(3)(c)(ii) prescribes that a parent or other person who acts
as guardian of a child must consent to the child’s adoption. Section 233
prescribes that this is applicable to any person, also an unmarried father of a
child born of unmarried parents, who has full parental responsibilities and rights,
including guardianship, of a child.

7.4.1 Conditions under Which Paternal Consent Is Required for Adoption

The Children’s Act 38 of 2005 prescribes that consent is required by both parents
of the child, regardless of whether the child is of married or unmarried parents.
When the child becomes available for adoption, the biological father of a child
who does not have guardianship in respect of the child, or the foster parent of a
child has the right to be considered as a prospective adoptive parent.

In terms of section 236(4) a natural father can acknowledge that he is the

biological father of a child by giving a written acknowledgment that he is the
biological father of the child either to the mother or the clerk of the children’s

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court before the child reaches the age of six months, by voluntarily paying
maintenance in respect of the child or by paying damages in terms of customary
law, or by causing particulars of himself to be entered in the registration of birth
of the child. Where he fails to acknowledge paternity his consent is not required.

7.4.2 Conditions under Which Paternal Consent Is not Necessary for Adoption

Consent is not necessary if:

• The biological father is not married to the child’s mother or was not married
to her at the time of conception or at any time thereafter, and has not
acknowledged that he is the biological father of the child.
• The child was conceived from an incestuous relationship between the
biological father and the mother.
• The court, following an allegation by the mother of the child, finds on
balance of probabilities that the child was conceived as a result of the rape
of the mother, provided that such a finding shall not constitute a conviction
for the crime of rape.

7.4.3 Legal Effects of Adoption

An adoption order causes the termination of all parental responsibilities and

rights and obligations existing between the child and any person who was his or
her parent, and that parent’s relatives, immediately prior to such adoption.

An adopted child is deemed in law to be the child of the adoptive parent as if he

or she were born of that parent during the existence of a lawful marriage as the
adoption confers on the adoptive parent full parental responsibilities and rights.
An order of adoption, unless otherwise provided, confers the surname of the
adoptive parent on the adopted child. Such an order of adoption does not permit
marriage or sexual intercourse between the child and another person that would
have been prohibited had the child not been adopted.

Self-Assessment Questions

7.1 Explain the concept ‘children born of unmarried parents’.

7.2 A childless couple approaches you. They are considering surrogacy.
Explain to them the legal aspects related surrogacy and the impact of
surrogacy on a child’s status.

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7.3 A and B is a married couple. They are in a dispute regarding their child.
The mother alleges B (the man) is not the father of the child. Explain to
them how paternity is proven.
7.4 Z is the child of an unmarried couple. Z approaches you. Explain to Z the
legal relationship between a child and his or her unmarried parents.
7.5 Another childless couple approaches you. They are considering adoption.
However, they are uncertain if an adopted child will be recognised by the
law as their child. Explain to them how adoption affects a person’s legal
status.

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 Topic 8
Minority

Prescribed Reading

Before continuing with this study unit, please read the following:
• Kruger et al. (2018: Chapter 8, pages 113–150)

8.1 Introduction

After completing this study unit, you should be able to:

• explain the legal status of an infans
• explain the legal status of a minor
• explain the legal principles applicable to termination of minority

A juristic act reflects the will of the author of the act. It thus makes sense that
only those persons who have a reasonable understanding and judgment should
be afforded capacity to act. As juristic acts may have far- reaching consequences
for their authors, the law confers capacity to act on only those persons who can
understand the nature and consequences of their acts.

Youth has a major influence on a person’s powers of judgment. Consequently,

the capacity of immature persons to perform juristic acts is restricted. The
purpose of this restriction is to protect these persons ‘against their own
immaturity of judgment’.

Whether a person has the understanding and judgment necessary to perform

valid juristic acts is, in the legal world, a question of fact. As it would be
inconvenient and lead to legal uncertainty if individual understanding and
judgment were to be assessed on a case-by-case basis, the law prescribes a
general age limit for the attainment of full capacity to act. In terms of the
Children's Act 38 of 2005 38 of 2005 (section 17) every person reaches the age
of majority at the age of 18.

Although, generally speaking, a minor acquires full capacity to participate in legal

interaction when he or she turns 18, several earlier ages are of legal importance.
Some examples include the following:

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• The Child Justice Act 75 of 2008 came into operation on 1 April 2010. This
changed the common-law position regarding children’s criminal capacity.
According to the Child Justice Act the minimum age of criminal
accountability is ten years. Children below the age of ten years are
completely unaccountable for their crimes, whereas children between the
ages of ten and fourteen years are presumed to be unaccountable. Note
that, when the Child Justice Amendment Act 28 of 2019 comes into
operation, the minimum age of criminal capacity will be raised to 12 years,
and there will be a presumption that children between the ages of 12 and
14 are unaccountable.
• Children below the age of seven (infantes) can never be delictually liable.
Children between the ages of seven years and puberty are rebuttably
presumed to be delictually unaccountable. Children between the age of
puberty and eighteen years are rebuttably presumed to be delictually
accountable. As the age of puberty is 14 years for boys and 12 years for
girls, it is clear that the common-law position unfairly discriminates on the
ground of sex in this regard, and should be brought in line with the
Constitution. This was acknowledged in an obiter dictum in Eskom Holdings
Ltd v Hendricks 2005 (5) SA 503 (SCA).
• Children below the age of seven (infantes) have no capacity to act
whatsoever. Between the ages of seven and eighteen, minors have limited
capacity to act. This means that they can generally enter into contracts with
the assistance of a guardian only.
• A child must give consent to his or her own adoption if he or she is ten years
or older, or is under the age of ten years but is of an age, maturity and
stage of development to understand the implications of such consent.
• Children below the age of puberty may not enter into civil marriages at all.
• Girls between the ages of twelve and fifteen, and boys between the ages of
fourteen and eighteen, must obtain the consent of the Minister of Home
Affairs to enter into a civil marriage. This is another area where the legal
position unfairly discriminates on the basis of sex.
• From the age of fourteen years, minors may witness a will. ‘When they turn
sixteen, children may make a will and be a depositor at a mutual bank.

8.2 The Legal Status of an Infans

Kruger et al. (2018) provide the following diagram relating to the legal status of
an infans.

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 Figure 8.1 The Legal Status of an Infans
Source: Kruger et al. (2018: 116)

Activity 8.1

Explain the legal status of an infans with reference to legal capacity, capacity to
act, capacity to litigate, and capacity to incur delictual and criminal liability.

8.3 The Legal Status of a Minor

Kruger et al. (2018) provide the following diagramme relating to the legal
capacity of a minor.

Figure 8.2 The Legal Capacities of Minors

Source: Kruger et al. (2018: 119)

Activity 8.2

Explain the legal status of a minor with reference to legal capacity, capacity to
act, capacity to litigate, and capacity to incur delictual and criminal liability.

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8.4 Termination of Minority

8.4.1 Attainment of the Prescribed Age of Majority

In terms of the Children’s Act 38 of 2005 the age of majority is set at 18 years.
A person attains majority at the beginning of the day of the person’s eighteenth
birthday, unless it is to the minor’s advantage to extend the period of his or her
minority to the precise moment in the day that coincides with his or her time of
birth.

8.4.2 Effect of Marriage on Minority Status

A person who concludes a valid civil or customary marriage before reaching the
age of 18 becomes a major for all purposes. If the marriage is dissolved by death
or divorce before the married person reaches the age of 18, then his or her
minority does not revive.

A void marriage does not terminate minority, and the annulment of a voidable
marriage restores the married person's limited capacity to act with retrospective
effect. The position is what it would have been had the marriage never taken
place.

8.4.3 Declaration of Majority by a Court

The Children’s Act 38 of 2005 (section 28) empowers some courts to terminate,
suspend or circumscribe a person’s parental responsibilities and rights. This
authority is granted to the High Court, a divorce court dealing with a divorce
matter, and the children’s court within whose area of jurisdiction a child ordinarily
resides. An application for such termination, suspension or circumscription may
be made by the child in respect of whom the parental responsibilities and rights
operate, with the court’s permission.

8.4.4 Emancipation of a Minor

Activity 8.3

Explain the legal principles that relate to the emancipation of a minor.

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 Self-Assessment Questions

ABC Children, a charity aimed at the protection of minors, contacts you. They
request you to provide lunch-hour training to their new staff. In the training
session you must address the following questions (in sessions of 3 minutes each).
8.1 Explain the legal status of an infans.
8.2 Explain the legal status of a minor.
8.3 Explain the legal concept ‘termination of minority’.

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 Topic 9
Curatorship, Prodigality and Insolvency

Prescribed Reading

Before continuing with this study unit, please read the following:
Kruger et al. (2018: Chapter 9, pages 151–162)

9.1 Introduction

After completing this study unit, you should be able to:

• explain the concept ‘curatorship’ and indicate how curatorship affects a
person’s status
• explain the legal concept ‘prodigality’ and indicate how prodigality affects a
person’s status
• explain the concept ‘insolvency’ and indicate how insolvency affects a
person’s status

9.2 Curatorship

Kruger et al. (2018) identify three types of curators.

Figure 9.1 The Three Types of Curators and the Functions of Each
Source: Kruger et al. (2018: 152)

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 Activity 9.1

Explain the three (3) types of curators and the functions of each.

9.3 Prodigality

A prodigal is a person with normal mental abilities who, as a result of some defect
of character or will, squanders his or her assets in an irresponsible and reckless
way. Prodigality as such does not affect a person’s status. The prodigal’s status
will be affected only once he or she has been declared a prodigal and prohibited
from managing his or her own affairs. The court will also be requested to appoint
a curator bonis to administer the prodigal’s estate.

Any interested party, including the prodigal himself or herself, may apply to the
High Court for an order declaring the person to be a prodigal. It appears from
case law that it is usually the prodigal’s spouse who takes the initiative to apply
for the court order. The reason for the person’s prodigality is not really important,
and is very often related to alcoholism, drug addiction or gambling. Note that the
mere declaration as a prodigal is not sufficient in itself to limit such person’s
capacities. The declaration must be accompanied by an additional order
prohibiting the prodigal from managing his or her own affairs. Once this happens
the prodigal’s status becomes similar to that of a minor.

A declaration of prodigality affects not only the status of the prodigal, but also
the interests of third parties who may contract with the prodigal. In Delius v
Delius 1960 (1) SA 270 (N) Burne AJ emphasised the necessity of publication
and explained as follows: ‘There is, as far as I know, no way by which the fact of
prodigality can be made known to the public except by way of publication of the
order. I consider it is in the public interest that the court should do its utmost to
see its declaration of prodigality becomes known to the public. This can, I think,
best be achieved by making provision for publication in the order itself.’
Consequently, he ordered that the court order be published in the Government
Gazette and in a local newspaper.

A prodigal’s status is not fully reinstated once his or her prodigal tendencies
cease. A prodigal regains full capacity only when the court order declaring him
or her a prodigal and placing him or her under curatorship is replaced by an order
of the High Court.

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 Activity 9.2

Explain the legal status of a prodigal with reference to the following aspects:
• legal capacity
• capacity to act
• capacity to litigate
• capacity to be held accountable for crimes and delicts

9.4 Insolvency

Insolvency occurs when a person’s liabilities exceed his or her assets. An

insolvent person is prohibited from performing certain juristic acts or from
occupying certain offices. The purpose of these limitations is to protect others
and not to punish the insolvent.

The High Court has jurisdiction to issue an insolvency order. The person is
declared insolvent and his or her estate is sequestrated. Once this happens, the
insolvent is separated from their estate. The insolvent’s estate vests in the
Master of the High Court until a trustee is appointed, after which the insolvent
estate vests in the trustee.

All property acquired by the insolvent during insolvency vests in the insolvent
estate. There are a number of assets which fall outside the insolvent estate, such
as:
• The portion of the insolvent’s earnings the Master has allowed the insolvent
to retain to support himself or herself and his or her dependants.
• Pension money.
• Compensation the insolvent received for loss or damage as a result of
defamation or personal injury.
• Personal items such as clothes, bedding, household furniture and other
essential means of subsistence.
• Certain life insurance policies.

Activity 9.3

Explain the legal status of an insolvent with reference to the following aspects:
• legal capacity
• capacity to act

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• capacity to litigate
• capacity to be held accountable for crimes and delicts
• rehabilitation

Self-Assessment Questions

9.1 Define and explain the legal concept ‘prodigality’ to your family member
who, according to his wife, spends all their money on items they do not
need.
9.2 Your client wants to appoint a curator for her mother, who is 98 years old.
Her mother can no longer take care of herself, and she is unable to
communicate. Define and explain the legal concept ‘curatorship’ to your
client.
9.3 Z approaches you. There is a strong likelihood that he will be declared
insolvent. He does not know what insolvency is. Explain the legal concept
‘insolvency’ to Z as well as the impact of it on a person’s status.

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 Topic 10
Mental Illness, Physical Disability and the
Influence of Alcohol and Drugs on Capacity

Prescribed Reading

Before continuing with this study unit, please read the following:
• Kruger et al. (2018: Chapter 10, pages 163–184)

10.1 Introduction

After completing this study unit, you should be able to:

• explain the legal concept ‘mental illness’ and indicate how mental illness
affects a person’s legal status
• explain the impact of alcohol and drugs on capacity
• explain the influence of physical disability on capacity

Mental illness may affect a person’s ability to make informed decisions, manage
his or her own affairs or appreciate the wrongfulness of his or her act or omission.
In private law, a person is considered mentally ill if that person cannot
understand the nature and consequences of his or her juristic acts, or if the
person does understand the nature and consequences of his or her juristic acts,
but is motivated or influenced by delusions caused by his or her mental illness.
This test was formulated by the Appellate Division (as it was then known) in
Lange v Lange 1945 AD 332.

If a person cannot understand or appreciate the nature and consequences of his

or her juristic acts, these acts are void. lf a mentally ill person acts during a
lucidum intervallum (clear moment), in other words he or she can understand
the nature and consequences of his or her juristic acts, those acts are valid and
enforceable.

Since all persons are considered to be mentally capable until the contrary is
proved, the onus rests on the person alleging the mental illness to prove that
the person concerned is in fact mentally ill. A curator personae can be appointed
to care for the personal well-being of a mentally ill person.

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A curator bonis can be appointed to look after the patrimonial interests of a
mentally ill person. A curator ad iitem can be appointed to assist the mentally ill
person in litigation.

lf a person is so impaired as a result of alcohol and drugs that the person did not
know that a transaction was being entered into, or had no idea of its provisions,
that transaction is void.

lf a physical disability or illness affects the ability of a person to manage his or

her own affairs, a curator may be appointed by the High Court to represent such
a person.

The Mental Health Care Act makes provision for the appointment of an
administrator to care for and administer a person’s property.

10.2 Historical Background

The United Nations General Assembly has passed various declarations relating
to the recognition and protection of mentally and physically disabled persons.
The most important United Nations document for our purposes is the Convention
on the Rights of Persons with Disabilities (2006). In terms of Article 12 of the
Convention, State Parties who have signed and ratified the Convention (such as
South Africa) must ‘recognise that persons with disabilities enjoy legal capacity
on an equal basis with others in all aspects of life’ and ‘take appropriate measures
to provide access by persons with disabilities to the support they may require in
exercising their legal capacity’.

The Constitution of the Republic of South Africa, 1996 clearly prohibits unfair
discrimination of persons on the ground of disability. The general principle in our
evolved common law is the need to protect persons from exploitation. Thus, the
common law will not attach any consequences to a legal transaction made by a
person with a disability where such disability prevents the person in this study
unit from understanding the nature and consequences of such act.

10.3 Mental Illness

Depending on its severity, mental illness may have an effect on a person’s ability
to:
• make informed decisions,
• manage his or her own affairs, or

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• appreciate the wrongfulness of his or her act or omission.

It is not technically correct to classify mental illness as representing a ‘status’.

Mental illness should rather considered a ‘factor’ that might counteract capacity.
The reason for this is because mental illness is not necessarily permanent or
constant. Instead of asking ‘Is the person mentally ill?’, the question should
rather be: ‘Is a person capable of understanding a particular decision, action or
transaction?’. The law deals with mental illness in three main ways:
• The common law provides mechanisms to protect and assist mentally ill
persons in making decisions and managing their affairs (where they lack
the capacity to do so).
• Statutory and common law limits the accountability of a mentally ill person
under criminal law and the law of delict.
• Statutory law provides for the care, treatment and rehabilitation of the
mentally ill, including State patients and prisoners.

10.3.1 Mental Illness and a Lucidum Intervallum

All persons are alleged to be mentally capable until the opposite is proven. Where
people do not understand the scope and nature of their actions, the law does not
attach consequences to their actions in order to protect them. This is a protective
rather than punitive measure.

The decision whether a person has a mental illness or not in terms of the law
relies heavily on medical and psychological evidence. The meaning or definition
of mental illness varies depending on the area of law and the purpose for which
the definition is used.

Activity 10.1

Explain the following relating to mental illness:

• The meaning of mental illness and lucidum intervallum in private law.
• The meaning of mental illness for purposes of care, treatment and
rehabilitation.
• The meaning of mental illness in criminal law.
• The influence of mental illness on legal status and capacity.
• Supplementing incapacity: the appointment of curators.

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10.4 Alcohol and Drugs

10.4.1 The Influence of Alcohol and Drugs on Capacity

The influence of alcohol, drugs and mental illness on a person’s capacity is

treated in a similar way in our law. The general principle when considering the
influence of alcohol and drugs is whether such influence impaired the person’s
ability to appreciate the consequences of his or her actions. Such impairment is
usually of a temporary nature due to the type of the substances consumed or
ingested and, as such, it is normally not necessary to place such a person under
curatorship.

The influence of alcohol and drugs on a person arises most often in the context
of a person’s capacity to act and in his or her capacity to be held criminally and
delictually liable. For alcohol to have any effect on a person’s capacity to act, one
has to establish that the consumption of the alcohol must have deprived a person
to such a degree that he or she either did not know that he or she was entering
into a transaction, or had no idea of its provisions. In these circumstances then,
the mere influence of drink in entering into a contract is not enough to negate
capacity.

10.4.2 The Effect of a Finding of Incapacity Due to Alcohol or Drug Consumption

In situations where a party can prove that the person affected by the alcohol was
so deprived of his or her senses, the transaction is void ab initio and cannot be
sanctioned. In case law this has been justified on the basis that the person is
non compos mentis and, therefore, there can be no such thing as a valid contract.
This principle applies even where the other party did not realise how intoxicated
the person was at the time of the transaction. It has even been submitted that
where the other party actively makes the person drink so as to agree to the
transaction, the contract may be voidable at the instance of the incapacitated
party as a result of undue influence.

The onus of establishing the effect of the alcohol or drugs on a person’s capacity
to act rests upon the party alleging it.

Despite the contract being void ab initio due to a lack of capacity on the part of
the intoxicated person, as with mental illness, such person may be liable to the
other party on the basis of unjustified enrichment or negotiorum gestio.

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10.4.3 The Capacity to Be Held Accountable for Crimes and Delicts of Persons
Influenced by Alcohol and/or Drugs

The excessive consumption of alcohol or the taking of drugs may deprive a

person of the capacity to appreciate the wrongfulness of his or her conduct or
the capacity to act in accordance with such appreciation.

Note

In terms of section 1 of the Criminal Law Amendment Act 1 of 1988, the position
of the intoxicated person has been qualified: it sets out that a person who
consumes or uses any substance which impairs his or her faculties to appreciate
the wrongfulness of his or her acts or to act in accordance with that appreciation,
while knowing that such substance has that effect and who commits an illegal
act while such faculties are thus impaired, is guilty of an offence punishable by
the penalty which may be imposed in respect of the commission of that act. Thus,
even though a person is intoxicated to such a degree that he or she did not know
what he or she was doing, they may still be liable in criminal law.

The fact that a person is intoxicated to such a degree that he or she did not know
what he or she was doing will not usually excuse the person from delictual
liability. This is because negligence is usually sufficient to hold a person liable –
if it can be established that the person was negligent in performing the act in
question while not in a fit state to do so, he or she will be held liable.

10.5 The Influence of Physical Disability on Capacity

As with the mentally ill or a prodigal, a curator may be appointed by the High
Court to represent a person with a physical disability or illness, where such
physical disability or illness impacts on the ability of a person to manage his or
her own affairs. The appointment of a curator is necessary for the protection of
the person subject to the curatorship and should not be seen as a punitive
measure.

Incapacity arising from physical disability or illness has resulted in the

appointment of a curator in a variety of circumstances, including:
• aged persons (with or without an additional condition);
• deaf and mute persons;
• persons suffering epileptic attacks;

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• disability resulting from a motor vehicle accident; and
• disability resulting from strokes and similar conditions.

The essential test is always whether the person is capable of managing his or her
affairs – it is not necessary to lead evidence that a person has actually
squandered or dissipated his or her assets before a curator bonis can be
appointed. Courts will carefully consider whether the appointment of a curator
bonis in these circumstances is needed, given the fact that such appointment
may curtail a person’s right of freedom of movement, and that the person with
the physical disability is still compos mentis.

The appointment of a curator to a person does not mean that the person is
deprived of the capacity to act and litigate. Neither is the person incapable of
being held accountable for crimes and delicts. Someone who has been placed
under curatorship because of an inability to manage his or her own affairs can
enter into a valid legal transaction if, at that particular moment, he or she is
physically and mentally able to do so. It has, for example been held that such a
person may marry without his or her curator’s consent and make a will.

Self-Assessment Questions

BBB Society for the Vulnerable plans to host public information session to
educate the public about the legal status of persons. They invite you to present
at one of their public information sessions. You must address the following
questions during the session:
10.1 Explain how mental illness affects a person’s status.
10.2 Explain the impact of alcohol and drugs on capacity.
10.3 Explain the influence of physical disability on capacity.

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 Topic 11
Race, Custom and Religion

Prescribed Reading

Before continuing with this study unit, please read the following:
• Kruger et al. (2018: Chapter 11, pages 185–207)

11.1 Introduction

After completing this study unit, you should be able to:

• explain the influence of religion on legal status
• explain the influence of race on legal status
• explain the influence of customary law on legal status

Personal law is a system of law that is:

• recognised by a particular community as binding on its members; and is
• in accordance with either:
o recognised religion or faith; or
o the rules of an established and legally recognised custom.

Personal legal systems are regarded by their adherents as having the same, or
higher, status as the ‘law’ because of their historical and divine origins and,
clearly, section 15(3) of the Constitution does recognise such systems as law.
Indeed, in many instances, the adherents of personal legal systems maintain
that these systems have an even higher authority than ‘man-made’ law because
they are ‘sacred' and not subject to censure.

Although some aspects of personal law do correspond with civil law, there are
circumstances in which personal law differs from, or even contradicts, civil law.
The purpose of this study unit is to discuss these circumstances, as well as to
look at the ways in which race may be an influence on legal status. Legal status
is attained through the operation of law.

The difficulty in determining the legal status of a person to whom two different
legal systems are applicable is further complicated by the fact that under each
system, such a person would be required to conform to the particular system’s

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law. In South Africa race, religion and customary law have played a major role
in the determination of personal legal status although, with the end of apartheid
in 1994, the role of race began to diminish as a negative factor influencing legal
status. The role and influence of race has, however, been retained in the spirit
of affirmative action in terms of the Constitution.

While the effect of race on status has diminished, there has been an increase in
the number of cases that deal with the legal status of adherents to religious law,
and of persons governed by customary law. The courts have increasingly moved
to protect religious and customary laws as far as possible within the extent of
their powers, particularly in the area of family law. The next section deals with
the influence of religion on the legal status of Muslims, Jews and Hindus under
South African family law.

11.2 The Influence of Religion on Legal Status

South African courts have generally been hesitant to interpret religious law in
order to avoid what they have called ‘religious entanglement’.

Despite this, the doctrine of avoidance of religious entanglement has not

prevented the secular courts from making rulings on religious law. Numerous
court decisions have led to the partial recognition of some aspects of religious
law, and this has been particularly so in the area of family law.

In this regard, you should take note of the decision of the Supreme Court of
Appeal in President of the RSA v Women’s Legal Centre Trust (United Ulama
Council of South Africa and others as amici curiae) and Related Matters [2021]
1 All SA 802 (SCA). The court declared the common-law definition of ‘marriage’
unconstitutional to the extent that it excludes Muslim marriage.

Activity 11.1

Describe the following relating to the influence of religion on legal status:

• Religious influence on the capacity to marry and restrictions on the freedom
to choose partners.
• The legal status of parties married according to religious rites.
• The influence of religion on the capacity to obtain a divorce.
• The influence of religion on the capacity to contract, litigate, own and
dispose of property.

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11.3 The Influence of Race on Legal Status

During the apartheid era, factors that determined a person’s rights and duties in
South African legal discourse used to be decided on the basis of a person’s race.
For the indigenous African there was an additional factor – the African person’s
tribal origin and the tribal laws applicable to that person.

Owing to the repeal of racially biased laws in South Africa it can be argued that
race is no longer used to determine a person’s legal status. There are, of course,
exceptions – affirmative action uses, inter alia, race to determine rights. In
addition, customary law is de facto applied to indigenous African people. The
various sections of the Black Administration Act 38 of 1927 which were used to
determine African people’s legal status have been repealed.

Activity 11.2

Describe the following relating to the influence of race on legal status:

• Customary law as a racial legal system.
• Capacity to enter into a customary marriage and to litigate determined by
race.

11.4 The Influence of Customary Law on Legal Status

Under customary law the factors that influence legal status are primarily
determined by:
• African models of patriarchy;
• the legalisation of polygyny;
• the existence of extended families and family heads; and
• the recognition of tribal communities.

Activity 11.3

Describe the following relating to the influence of customary law on legal status:
• Patriarchy and legal status.
• The legal status of family heads and heirs.
• The legal status conferred by family, clan and tribal membership.
• The legal status of children under customary law.

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 Self-Assessment Questions

11.1 Explain the influence of religion on legal status.

11.2 Explain the influence of race on legal status.
11.3 Explain the influence of customary law on legal status.

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 References

Kruger, H. & Skelton, A., (eds). 2018. The law of persons in South Africa. 2nd
ed. Cape Town: Oxford University Press.

South Africa. 1959. Inquests Act 58. Pretoria. Government Printer.

South Africa. 1975. Abortion and Sterilisation Act 2. Pretoria. Government

Printer.

South Africa. 1977. Criminal Procedure Act 51. Pretoria. Government Printer.

South Africa. 1988. Sterilisation Act 44. Pretoria. Government Printer.

South Africa. 1992. Births and Deaths Registration Act 51. Pretoria. Government
Printer.

South Africa. 1992. Domicile Act 3. Pretoria. Government Printer.

South Africa. 1996. Choice on Termination of Pregnancy Act 92. Pretoria.

Government Printer.

South Africa. 1996. Constitution of the Republic of South Africa. Pretoria.

Government Printer.

South Africa. 2002. Mental Health Care Act 17. Pretoria. Government Printer.

South Africa. 2005. Children’s Act 38. Pretoria. Government Printer.

South Africa. 2006. Civil Union Act 17. Pretoria. Government Printer.

South Africa.2008. Child Justice Act 75. Pretoria. Government Printer.

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