IIE Module Prescribed Reading ASPL5111

Aspects of Private Law

ASPL5111
Prescribed Reading 2024
(First edition 2021)

This manual enjoys copyright under the Berne Convention. In terms of the Copyright Act, no
98 of 1978, no part of this manual may be reproduced or transmitted in any form or by any
means, electronic or mechanical, including photocopying, recording or by any other
information storage and retrieval system without permission in writing from the proprietor.

The Independent Institute of Education (Pty) Ltd is registered with the

Department of Higher Education and Training as a private higher education
institution under the Higher Education Act, 1997 (reg. no. 2007/HE07/002).
Company registration number: 1987/004754/07.

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IIE Module Prescribed Reading ASPL5111

Contents
A brief introduction to the Law of Persons ........................................................................................... 4
Concepts relating to the Law of Persons ........................................................................................... 4
How is PRIVATE LAW defined? .......................................................................................................... 4
Who or what is a person ................................................................................................................ 5
Who or what is a legal subject? ......................................................................................................... 5
Different types of persons or legal subjects: ..................................................................................... 6
Defining the Law of Persons .............................................................................................................. 7
Capacity and Status ............................................................................................................................ 8
Legal Objects..................................................................................................................................... 12
A brief introduction to Family Law .................................................................................................. 14
What is family law? .......................................................................................................................... 14
How can Family Law be defined? .................................................................................................... 15
The interpersonal relationship of marriage ................................................................................ 15
The impact of a valid marriage on the Law of Delict .................................................................. 18
The impact of a valid marriage on the Law of Succession .......................................................... 18
The impact of a valid marriage on the children of the marriage ................................................ 18
Law of persons, family and legal Practice ....................................................................................... 19
Introduction to the law of contract ..................................................................................................... 21
What is a contract? .......................................................................................................................... 21
The Role of the legal practitioner in contract formation ................................................................ 21
Duties of the ‘contract drafter’ .................................................................................................... 23
Breach of contract, causes of action and litigation ..................................................................... 23
Legal Remedies: ............................................................................................................................ 24
Introduction to the Law of Delict......................................................................................................... 26
Is there a difference between a delict and a crime? ................................................................... 26
The law of delict and the Constitution ........................................................................................ 27
Basic concepts regarding the Law of Delict ..................................................................................... 27
Conduct ......................................................................................................................................... 27
Wrongfulness................................................................................................................................ 28
Wrongfulness as an infringement of a subjective rights ............................................................ 29
Grounds of Justification ................................................................................................................... 30
Causes of action and litigation ......................................................................................................... 34
Relief sought and the plaintiff’s prayer ....................................................................................... 34
Wills and estates in legal practice ................................................................................................... 37

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Drafting of Wills............................................................................................................................ 37
Execution of the Will .................................................................................................................... 37
Rules regarding signing: ............................................................................................................... 38
Legal Practitioner nominated appointed as Executor................................................................. 39
Administration of the deceased estate ....................................................................................... 39

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A brief introduction to the Law of Persons

Concepts relating to the Law of Persons1

We must first place the law of persons as a subject area into broader context of where it fits
in to South African law. We will then discuss the various concepts used in the law of persons
and how they apply. We will then explain the application and effect of these concepts.

The Law of Persons forms part of the objective law, that is, the national law of a country.
The objective law may be subdivided into private law and public law.2

National Law Private

Public International
International Law
(Objective law) Law
(Conflict of Laws)

Procedural Law
Substantive Law
(Adjective law)

Civil procedure / Criminal

Public Law Private Law procedure / Evidence /
Interpretation

Law of persons and

the family; law of
contract; law of delict;
law of succession

How is PRIVATE LAW defined?

“A collection of legal rules that apply to a variety of legal relationships in which the acting
person in the relationship is called a “person” or “legal subject”.”

1
This learning unit is merely an introduction to the branch of law called the Law of Persons. You will learn
more about the subject in the module Law of Persons (LOPF5131) offered on the IIE Bachelor of Laws (LLB).
2
Public law regulates the relationship between the state and the citizen. An example of public law is Criminal
law. Public law applies to all citizens equally, including the government. You will learn more about the different
branches of law in the module Fundamentals of the South African Legal System (FSAL5111).

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Can you think of any private law relationships?

• Contracting parties – think of your relationship with IIE Varsity College.

• Testator and heir – imagine a relative leaving you a huge mansion in their will.

• Owners of objects and third parties – think of your ownership of a pen or a cellular
phone – can anyone else use or sell these items?

• Spouses – persons in a relationship that our law recognises as a marriage.

In order to legally participate in legal intercourse, the parties to the legal relationship must
be legal subjects.

Who or what is a person?

A person is a legal subject. This means that the law recognises their (legal subjectivity) and
they have legal rights and duties.

Who or what is a legal subject?

A legal subject is a carrier of juridical capacities3 and subjective rights. Private law not only
determines who or what is a legal subject but also protects subjective rights. 4

The word “Person” is borrowed from the Latin word persona and refers to a mask worn by
actors. The word “performance” is also used not only refer to what one does on stage in the
context of acting, but also to the fulfilment of one’s obligations, for example, in terms of a
contract.

Therefore, a person is a legal subject who has the ability to be the carrier of juridical
competencies, subjective rights and capacities.

Can you think of any rights?

Have you ever heard someone say, “It is my right!”?

• What other rights are there?

• Is there a connection between your rights and the legal relationships that you are a
party to?
• What rights do you have as a student at IIE Varsity College? How will you enforce
those rights if they are infringed?
• What rights do you have in relation to your parents or guardians?

3
Juridical meaning ‘of or relating to the law’.
4
You will learn more about the objects of subject rights later in this chapter and more about the protection of
subjective rights in the chapter titled Law of Delict.

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• What rights do you have in relation to the government of the Republic of South
Africa?

What is legal intercourse?

Here are two possible definitions:

Communication; literally, a running or passing between persons or places; commerce

(implies a transaction)5

or

Communication; commerce; connection by reciprocal dealings between persons or nations,

as by interchange of commodities, treaties, contracts, or letters.6 Reciprocal meaning
“binding each of two parties equally.”7 Essentially, a reciprocal agreement is a “two-way
street”.

Legal intercourse implies legally recognised activities which have legal consequences.
When an activity or relationship is legally recognised, the parties to the legal relationship
acquire rights and obligations that require reciprocal performance. An obligation is defined
as an act or course of action to which a person is legally bound. Obligations or duties may
arise automatically by law or arise as a consequence of a contract or a delict. 8

• What obligations as a student at IIE Varsity College? How will these obligations be
enforced against you if you fail to perform?
• What obligations do you have in relation to your parents or guardians?
• What obligations do you have in relation to the government of the Republic of South
Africa?

Different types of persons or legal subjects:

In South African law, both natural persons and juristic persons are recognised as legal
subjects.

Juristic Persons: a community or association of people, like a company.

Let us consider The Independent Institute of Education (The IIE) as an example of a juristic
person. The law recognises and grants legal personhood (legal subjectivity) to an entity. For
this to happen in South African law, the association would have to be registered in terms of
South African company law.9 The legal entity as a legal subject is able to participate in legal

5
http://thelawdictionary.org/intercourse/)
6
http://legal- dictionary.thefreedictionary.com/intercourse">intercourse
7
https://www.lexico.com/definition/reciprocal
8
You will learn more about obligations in Learning Unit 5 – Law of Delict.
9
You will learn more about entities such as companies in the module Aspects of Mercantile Law (ASML5112).

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intercourse through its directors who act on behalf of the company. A juristic person is
defined as “a community or association of people that is something more than the sum of
its members.” Another definition of a juristic person is “a universitas personarum in Roman
Dutch law, that is…an aggregation of individuals forming a persona or entity, having the
capacity of acquiring rights and incurring obligations to a great extent as a human being.”10
In South Africa, juristic persons come into existence upon registration of the company and
receive a registration number very similar to the identity numbers that natural persons
receive upon registration of their birth. A juristic person will cease to exist as a legal subject
upon deregistration e.g., as a company. The IIE forms part of the Advtech group of
companies. The following details appeared on the 2021 letterhead of Advtech:

Directors: RJ Douglas (UK), JDR Oesch, MD Aitken, FJ Coughlan

Group Company Secretary: CB Crouse
The Independent Institute of Education (Pty) Ltd is registered with the Department of
Higher Education and Training as a private education institution under the Higher Education
Act, 1997 (reg. no. 2007/HE07/002). Company registration number: 1987/004754/07.

The Independent Institute of Education (IIE) is a juristic person. It participates in legal

intercourse through its directors.

In this learning unit, we focus on natural persons, their various statuses at various times in
life and the impact of status on the natural person’s capacity to participate in legal
intercourse or be parties to a legal relationship.

Natural Persons: human beings – irrespective of their status or mental and physical
capacities.

Defining the Law of Persons

Before we define the Law of Persons, let’s see where this branch of law fits in the field of
private law.

The law of persons exists independently from other legal branches of the objective law.
Since the law regulates the conduct of citizens, the law of persons regulates the conduct of
legal subjects in a private law relationship. When we speak of regulation, we mean the
legal rules which regulate the behaviour of citizens by telling them what conduct is lawful
and unlawful and the consequences resulting from unlawful conduct.

10
Webber & Co Ltd v Northern Rifles 1908 TS 462.

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How can the law of persons be defined?

The law of persons is that part of the objective law that governs the coming into existence,
the private law status, and coming to an end of a legal subject or natural person.

What does the “coming into existence” of a natural person mean and why is this
important in the Law of Persons?

To put it simply, a natural person comes into existence, for the purposes of law, when they
are born alive. 11 The law of persons determines when a person is deemed to be a person
and sets the requirements for a live birth. If the requirements for live birth are not met, the
baby that was delivered is deemed to not have acquired any rights. If the requirements for a
live birth are met, and even if the baby breathed only for a few seconds, the live birth
results in the baby acquiring personhood for the purposes of law.

Why do we use the phrase “for the purposes of law”? Although a foetus “displays” signs of
life from the moment of conception, an unborn child is only a person, for the purposes of
law, when they are born alive. There are different views on whether the unborn child is a
person and whether or not they should have rights such as a right to life. In this learning
unit, we will only focus on the rights accorded to a person from the point of live birth.

What does the “coming to an end of a natural person” mean? To put it simply, a natural
person ceases to be person, for the purposes of law, when they die. The law of persons
determines when a person is deemed to no longer be a person. The requirements
determining death are set out in legislation.12

Capacity and Status

What does the “private law status” of a natural person mean? Status comes from a Latin
word stare and literally means “to stand.” A LEGAL SUBJECT’S STANDING in the legal world
refers to the position or role or function that such a legal subject has in daily legal discourse.

A LEGAL SUBJECT’S CAPACITY or STATUS may be LIMITED according to DOMICILE, AGE,

BIRTH in or outside of wedlock, whether they are insolvent or declared a prodigal or
mentally ill. A natural person’s status may change several times during their lifetime.

Consider the contents in this timeline table:

11
Different religions and cultures believe that a person comes into existence at conception. For the purposes
of law, the unborn is not a person and only becomes a person when they are born alive. You will learn more
about this in the module LOPF5131 offered on the IIE’s Bachelor of Law degree.
12
For example, the National Health Act 61 of 2003 defines brain death.

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Birth A. B. C. D. E. F. Death
minor minor major or an married in Declared Declared
Prior to between the between the adult community insolvent mentally At the moment
birth, for ages of birth ages of 7 and from the age of property ill of death, a
the to seven years 18 of 18 human being
purposes of ceases to be a
law, a person. They no
foetus is not an infant has a minor has an adult has A married a person a person longer have any
a person no capacity limited full capacity person who who is who has rights and
and will contract alone capacity to enter into a is married in declared been duties.
only acquire although an contract and contract community an declared Whatever they
rights and infant has the may only provided that of property insolvent mentally owed and
obligations right to enter into a their status will have full will have ill does owned during
once they inherit, and valid contract has not been capacity to limited not have their lifetime,
are born may own with the affected by a contract, capacity any will form part of
alive. When property in assistance of status-altering but that to act in capacity their deceased
a human their own a parent or event such as capacity will some to act estate, which
being is name guardian. A a declaration be limited in instances alone. Any must be wound
born alive, minor of 16 of mental respect of and may contract up according to
they acquire years or older illness, property require concluded the law of
the capacity may however insolvency, held in the the by a succession
to be the make a last prodigality joint estate. consent mentally
holder of will and from the ill person
rights and testament. trustee of will be
duties their void.
insolvent
estate

In order to conclude juridically relevant acts, such as entering into a contract, a person must
have the necessary capacity. What are juridically relevant acts? Why are capacity and
status important?

A person who performs the juridically relevant act does so because they want to bring
about a specific legal consequence. The juristic act will only be valid and enforceable if it is
lawful. Consider the following juridical actions, their requirements, and their legal
consequences:

Contract You want to buy a laptop from Cyber Sales. The purchase price of
the laptop is R15999. You enter into an agreement with Cyber Sales.
The terms of the agreement are that you will pay R15999 for a ZZZ
Laptop. Cyber Sales supplies and delivers the laptop. As a result of
the agreement, you acquired a right to receive the laptop and Cyber
Sales acquired the obligation to supply the laptop. Cyber Sales also
acquired the right to receive payment of the purchase price and you
also acquired an obligation to pay the purchase price. The
agreement creates reciprocal rights and obligations between you
and Cyber Sales. A contract confers rights and obligations only if it is
valid and meets the common law requirements for a valid contract.

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Because you are over the age of 18 and are therefore a major, you
have the capacity to conclude the agreement. After doing research
on the ZZZ laptop, you made an informed decision to buy the
laptop. No one forced you to buy the laptop – you made the
decision.
Will You want to leave all your earthly belongings (your estate) to your
(Last will and best friend Portia. You don’t want anyone else but Portia to succeed
testament) you in title. The law states that you must be 16 years old or older to
execute a will. The law also requires that the will (the document in
which you express your wishes) complies with the requirements set
out in the Wills Act. Your wishes will be carried out after your death
if the will is valid. Your estate will be wound up in terms of the
Administration of Estates Act. You will become known as the
testator and Portia will become known as the heir of your estate.
Marriage If you are an adult, you do not require the consent of your parents
to marry. You must want to enter into a marriage with a particular
person of your choice. The person you want to marry, must also
want to marry you. Both you and the person you are marrying must
have the capacity to enter into marriage as well as the capacity to
marry each other. Once you are validly married, rights and
obligations will arise between you and your spouse (sometimes
referred to as a partner, husband or wife).

In order to perform the juridically relevant events like drafting a will, entering into an
agreement or contract or concluding a valid marriage, the natural person must be able to
express their will or intention. Whether the law attaches legal relevance to the expression
of your will depends on your capacity and status.

Consider the time-line table on page 7 again. Do you think the law will attach legal
consequences to a marriage concluded between two adults who have been declared
mentally ill and who were mentally ill at the time of concluding the marriage? What about a
mentally ill person entering into a contract to buy a very expensive car, paying a deposit and
taking delivery of the car and then not being able to recall the purchase or being able to pay
the balance owing on the car? Would such a contract be enforceable? Would you agree that
the status of “mentally ill” would affect the person’s capacity to conclude the contract as
well as their ability to fulfil their obligations under the contract?

When we speak of a person’s capacity to act or capacity to contract, we are talking about
their legal capacity. A person’s status directly impacts a person’s legal capacity to conclude
juridically relevant events. Look at the time-line table again. Can you identify the status-
changing events in a person’s life? The Law of Persons focuses on the following factors that
affect a person’s status:
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• Age.
• Marriage.
• Domicile.
• Mental Illness.
• Intoxication.
• Insolvency.
• Prodigality.

There are therefore three types of legal capacity that are impacted by a person’s status. A
person will either have:

• no capacity to act alone;

• limited capacity; or
• full capacity.

Depending on a person’s capacity, they may require assistance or consent. Consent means
permission and may be given verbally (for example, when the parent/guardian or
curator/trustee says “Yes” or “No”). Consent may be given in writing too. Consent may be
given tacitly and by this, we mean that it is based on the conduct of the consent-giver,
indicating that they have agreed or consented to the contract being entered into by the
person who has limited capacity to act. Assistance to conclude the contract may also take
the form of the consent-giver standing next to the minor as they conclude the contract. The
contract may also be concluded on behalf of the minor.13

Consent can never be given to a minor below the age of seven years, or a person who is
mentally ill. Where consent is given to such a child or mentally ill person, the contract will be
void.

The factors affecting status may therefore result in a person having no capacity to act alone
(the person will need someone like a guardian or a curator to act on their behalf) or limited
capacity to act (in which case the assistance or consent of a guardian or a curator or a
trustee may be required) or full capacity (no assistance is required).

What then is the capacity to litigate? A person has the capacity to litigate if they have the
capacity to be a party to a lawsuit as a plaintiff or a defendant (in what is known as action
proceedings before court / trial) or an applicant or a respondent (in what is known as
motion proceedings before court / application). In order to have legal standing or locus

13
Assistance is given to the minor for example, so that the minor’s limited capacity is ’filled’’ by someone
having full capacity. You will learn more about the consequences of the absence of consent in Learning Unit 2
as well as in the module Law of Persons (LOPF5131) offered on the Bachelor of Laws (LLB).

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standi in iudicio, a person must have an interest in the matter, as well as being a major
(adult).

Consider the following example:

If Portia borrows your car and is involved in a motor collision with a tree, you as the owner
of the vehicle may sue Portia, if she refuses to pay for the repairs, for damages in a court of
law. If you are 18 years or older and the car is registered in your name, you will have an
interest in the matter. You will be able to sue Portia for damages because you have a right
of ownership in respect of the car. Portia’s act or omission has resulted in your car being
damaged.14 You have capacity to litigate. You have locus standi. You cannot sue the tree
because it has no legal capacity, and it is not a person. You cannot sue the President of the
Republic of South Africa in this instance because the President had nothing to do with the
accident. Your neighbour cannot sue Portia in respect of the damages to your car because
your neighbour has no relationship with the object of your rights, namely your car.

Legal Objects

In the above example, your car which is registered in your name was damaged. You have a
right in respect of your car and that right arises as a result of ownership. A legal subject has
the capacity to be holder of rights and obligations. The object of the right is your motor
vehicle. As a consequence of ownership, you have a right in respect of your car and
everyone else has an obligation to respect the right which you have over the car.

So let us consider your capacities as a legal subject who is studying law at IIE Varsity
College. There are several legal relationships that arise now that you are a student.

Contract You wanted to study law at IIE Varsity College. You conclude a
between you contract in terms of which you will pay the tuition fee and in
and IIE Varsity exchange, IIE Varsity College will provide the tuition. A contract
College does not have to be in writing in order to be binding. However,
your contract with IIE Varsity College is in writing. If either you
(the natural person) or IIE Varsity College (the juristic person) fail
to fulfil your obligations in terms of the contract, the party whose
rights are infringed may sue the other party for specific
performances or any other damages allowed in law.

Contract In the previous example, you purchased the laptop from Cyber
between you Sales. Reciprocal rights and obligations arose from that legal
and Cyber Sales relationship. Should either you or Cyber Sales not fulfil your
obligations in terms of the contract of sale, the party whose rights

14
You will learn more about acts and omissions in Learning Unit 5 – the Law of Delict.

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are infringed will have a right of recourse against the party who is
in default.
Other legal You purchased books, a scientific calculator, stationery, a new
relationships pencil case and two bags – one for your laptop and one for your
creating rights books and other stuff.
and obligations You own these items. As a result of the right of ownership
everyone else in your class has an obligation to respect your
rights in these items. For example, Roderick, who often sits next
to you in lectures, cannot use your calculator without your
permission. Because you own the calculator, you have the right
to use it, to enjoy it or to destroy it. No-one else has the right to
use it, enjoy it or destroy it. The same goes for you pen. However,
just because you have the right to use, enjoy or destroy your pen,
you cannot use your pen to write on the walls at IIE Varsity
College, you cannot use your pen to stab Roderick, neither can
you destroy your pen by breaking it open and pouring the ink out
on Roderick’s head! You have a right to your pen, but you also
have a responsibility as the owner, not to use your property to
infringe the rights of anyone else. Similarly, when you are driving
onto campus, you have an obligation to make sure that the
music you play in your car is not so loud that it disturbs people
working and living in the buildings around the campus. With
rights come obligations. Your right of ownership in the car should
not infringe upon the rights of the homeowners to peace and
tranquillity. One of the functions of law is to balance competing
interests.

Private law protects the subjective interests of the parties and provides a legal subject with
a legal remedy when their subjective right is infringed.

As you read through the examples, can you think of the various ways in which these
subjective rights could be violated? What legal remedies do you think the law provides in
each instance?

In this chapter, we introduced you to private law concepts, in particular concepts relating to
the law of persons. Please bear these concepts in mind when you study the learning unit
titled ‘Introduction to the law of contract.’

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A brief introduction to Family Law

What is family law?

Like the Law of Persons, Family Law also forms part of the objective law which applies to
everyone in South Africa. It also forms part of Private Law and therefore regulates private
law relationships. The sources of South African Family Law15 are:

• The Common Law

• Statutory Law
• The Constitution, 1996

Family law determines whether or not an interpersonal relationship exists and if so, which
laws will apply to that relationship. Family law will also determine the rights and
obligations that arise between the people between whom the interpersonal relationship
exists. An interpersonal relationship is a legally significant relationship between two or
more people and between whom mutual rights and obligations exist as a consequence of
law. Can you identify any interpersonal relationships? How did they come about? What are
the mutual rights and obligations that arise as a consequence of these relationships?
Consider the following:

Interpersonal Relationship How does the relationship What are the rights and
arise? duties that come into
being?
Husband/Wife/Spouses Marriage in terms of South duty of reciprocal support,
African law faithfulness, love,
companionship
Parent and child Birth or adoption or Duty of reciprocal support,
surrogacy care, contact, maintenance,
guardianship
Fiancé and fiancée Engagement Mutual faithfulness and love

The law also regulates how the rights and obligations in terms of these interpersonal
relationships terminate. For example, the rights and obligations between spouses (married
people) will terminate on death or divorce. The rights and obligations between engaged

15
See Govindjee et al p.4-9.

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persons will terminate upon marriage, mutual agreement to terminate the engagement or
by breach of the engagement contract by one of the parties.16

For the purposes of this learning unit, we will focus on the interpersonal relationships of
marriage and the parent and child since these relationships have an impact on a person’s
legal capacity (capacity to act/capacity to contract) as well the capacity to litigate.

How can Family Law be defined?

Family law is the branch of law that regulates the relationships between children and their
parents or other caregivers, called guardians and which regulates marriages and other
intimate relationships between adults.17

The interpersonal relationship of marriage

A marriage will be valid if it is entered into in terms of the Marriage Act of 1961, the Civil
Union Act of 2006 or the Recognition of Customary Marriages Act of 1998.18 We will first
look at the impact of a valid marriage on the marriage partners’ or spouses’ capacities to
contract and to litigate and then the effect of a valid marriage on the children born of the
marriage.
Matrimonial property regimes and the impact on the capacities of the spouses

There are three matrimonial property regimes recognised in terms of South African Law. A
couple wishing to marry must agree regarding the matrimonial property regime they wish to
make applicable to their marriage as this is the system that will determine how the property
that they owned individually before the marriage will be managed during the marriage and
divided after the marriage is terminated. Matrimonial property regimes are also referred to

16
Engagement falls under the common law of contract. In the past, a person who caused the unlawful
termination of the engagement contract was ‘punished’ by having to pay different types of damages to the
‘innocent party.’ There is a move in South African law to limit the harsh consequences that followed under the
common law when an engagement contract is breached. It is the view of our courts that, in modern times and
in particular during the constitutional era, that terminating an engagement should not be more difficult than
terminating a marriage through divorce. In practice, you will likely administrate files and type out summonses
and particulars of claim relating to claims for actual damages caused as a consequence of expenses incurred in
preparation for the wedding. If the law firm represents the innocent party and she bought a wedding dress,
she could claim for the actual cost of the dress.
17
Barratt p.174
18
On 28 June 2022, the Constitutional Court in the case of Women’s Legal Centre Trust v the President of the
Republic of South Africa, declared the Marriage Act, 1961 and the Divorce Act, 1979 to be inconsistent with
the Constitution due to their failure to recognise marriages solemnised in accordance with Sharia Law. Purely
religious marriages received only partial recognition. In addition, draft legislation relating to Muslim marriages
has been pending since 2004. Through several ground-breaking cases, our law recognised the maintenance
claims of Muslim wives and widows, even though the marriage is not recognised. Similar concessions have
been made for Hindu women who concluded purely religious Hindu marriages. The declarations of invalidity,
pronounced in Women’s Legal Centre Trust v the President of the Republic of South Africa (2022), were
suspended for a period of 24 months to enable the President and Cabinet, together with Parliament to remedy
the defects by either amending existing legislation, or passing new legislation.

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as matrimonial property systems. The Matrimonial Property Act of 198419 provides for the
following regimes:

• in community of property and of profit and loss (ICP)

• out of community of property excluding profit and loss and the accrual system (OCP)
• out of community of property excluding profit and loss with accrual system
In community of property and of profit and loss (ICP)

With marriage in community of property, the separate estates of the spouses that
existed before marriage are joined to form a joint estate. With marriage out of
community of property, each spouse retains their personal estates. In other words,
“what is mine stays mine and what is yours stays yours.”

Marriage in community of property is called the default matrimonial property regime

because the spouses do not have to do anything before this regime applies to their
marriage.

Out of community of property excluding profit and loss without the accrual system

In the case of a marriage out of community of property without the accrual system, the
spouses must conclude a valid ante-nuptial contract (ANC)20 which will regulate the
patrimonial consequences of their marriage. As a consequence of having concluded a
valid ANC, the spouses will each retain their separate estates. For this marital regime to
apply, the ANC must specifically state that the accrual system is excluded.

Out of community of property excluding profit and loss with the accrual system (OCP)

Under this marital regime, also brought about by a valid ANC, the parties will share in the growth
of their respective separate estates when the marriage dissolves by divorce or death.

The choice of matrimonial property regime may have legal consequences that affect both
the legal capacity and the capacity to litigate of the marriage partners. Let’s look at the

19
Prior to 1984, a woman married in COP was subject to the marital power of her husband. Since 1984, marital
power has been abolished.
20
The Deeds Registries Act 47 of 1937 sets out the requirements for a valid antenuptial contract (ANC). The
antenuptial contract must specifically indicate whether or not the accrual system will apply to the marriage.
You will learn more about the structure and execution of the ANC (Ante-nuptial contract) in the module Legal
Office Support (LEOS5112) and Family Law (FALA6211) offered on the IIE Bachelor of Laws (LLB). In practice
you will likely type out a contract or complete a precedent. You might also assist with the filing of the ANC at
the Deeds Registries office if you are employed by a Notary Public.

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impact or legal consequences of the matrimonial property regimes on the spouses’

contractual capacity:

Matrimonial Whether or not consent to Reasons

Property Regime contract is required
in community of Consent is required. If the property forms part of the joint
property There are different types of estate, it is therefore the property of both
consent depending on the spouses.
nature of the contract to be
concluded.

out of community No consent is required. Spouses retain their own personal estates.
of property
excluding accrual

out of community No consent is required. Spouses retain their own personal estates.
of property However, each spouse acquires a right to
including accrual share in the accrual growth of the other
spouse’s estate at death or divorce.

Spouses married to each other in community of property therefore have limited capacity to
contract in respect of property that forms part of the joint estate. The joint estate is
formed automatically when spouses marry in community of property and have not chosen
to regulate the patrimonial consequences of their marriage by entering into an ante-nuptial
contract (ANC).

These some important legal consequences of being married in community of property:

• The profits and losses brought into the marriage and incurred during the marriage
are shared by both spouses.
• Each spouse is a tied co-owner of undivided equal shares in the joint estate.21
• Consent is required to create debt for which the joint estate will be liable or to sell
property that forms part of the joint estate. In some instances, the consent has to
take a particular form, such as written prior consent or consent that is written and
witnessed. When this type of consent is absent, the contract will be void. Similarly, a

21
Spouses married out of community of property may also be co-owners of property. They are however not
considered to be “tied co-owners of undivided equal shares.” The “size” of their portion of the co-owned
property is determined by how much each spouse contributed to the purchase price of the marital home for
example.

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spouse will require the consent of the other spouse in order to litigate in respect of a
matter pertaining to the joint estate.

The impact of a valid marriage on the Law of Delict22

A spouse wanting to sue a third party for damages will require the consent of the other
spouse if the cause of action23 relates to property held in the joint estate.24 Generally, a
spouse will be able to sue on behalf the other spouse, in a nomine officio capacity where
the other spouse is unable to do so due to incapacity. This is their official capacity as a
representative of the other spouse.

The impact of a valid marriage on the Law of Succession25

Spouses who are validly married become automatic intestate heirs of the other. The
matrimonial property regime will determine how much a spouse will receive. For example, if
the parties are married in community of property, the surviving spouse will be entitled to
their half of the joint estate. The other half which belonged to the deceased spouse will
then be divided between the intestate heirs in terms of the rules of intestate succession.

Our law also provides for spouses in polygynous marriages. Should a husband die intestate
and customary rules of succession apply, then our law provides that each of the wives and
the children born of each wife will receive a portion of the estate.

It should be noted that even if a valid marriage does not exist, a child of the deceased will
still have a right to claim maintenance from the deceased’s estate. Children born of
unmarried parents may also be intestate heirs based on the blood relationship the
deceased.

The impact of a valid marriage on the children of the marriage:

Where the parents are validly married, they automatically acquire rights and
responsibilities in respect of the children born of the marriage. The status of the children
will be that of ‘children born of married parents. The most important right and

22
The Law of Delict will be covered in greater detail in Learning Unit 5 of this Module.
23
We shall discuss causes of action in further detail under the chapters titled Introduction to the Law of
Contract and Law of Delict and in the module Debt Collection and Civil Procedure (DCCP5112). A cause of
action will arise out of legally recognized right.
24
Spouses married in community of property may still own property that is excluded by law from the joint
estate. Any litigation in respect of the spouse’s personal estate does not require consent. Where the spouse is
a professional, any litigation or contract relating to their profession will also not require consent of their
community of property spouse.
25
The Law of Succession will be covered in greater detail in Learning Unit 6 of this module.

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responsibility, for the purposes of this learning unit, is the right of guardianship.26 A child
born of married parents will automatically have both parents as guardians unless the right is
removed by a court of law. In some instances, a court may appoint a person as the guardian
of a minor child.27 Once a child reaches the age of majority, either by turning 18 years old
or by marriage, the parents cease to be the child’s guardian. Children between birth and
before turning 18 are minors. Minors between the age of 0 and 7 years and 7 and 18 years
require assistance from their parents/guardians in order to enter into contracts, including
engagement and marriage. A child that is 7 years or younger has no capacity to act alone
and the parents or guardian must act on their behalf. A child older than 7 years but younger
18 years has limited capacity to act. In order to remedy the minor’s limited capacity, a
parent or guardian must give consent to the child before the contract between the child and
a third party becomes valid.

What is the right of guardianship?

Guardianship is more than caring for a child. A guardian holds a “legal office” or position. As
a result of guardianship, a parent may make legal decisions in respect of the child and the
child’s property and person. Section 18 of the Children’s Act 2005 provides that a guardian
must give consent, for example, to a minor child’s marriage, adoption, or removal from the
Republic of South Africa. 28

A minor child will either have no capacity to litigate alone or have limited capacity to
litigate. A parent or another adult will be able to sue on behalf of a minor child, in a nomine
officio capacity, where the parent or adult is the guardian of the minor child.

An adopted child is legally in the same legal position as a natural minor child. Guardianship
in respect of a child (natural or adopted) will terminate once the child reaches majority,
even if the child is still dependant on the parents or legal guardian for support.

Law of persons, family and legal Practice

In practice, a legal practitioner may be consulted in a number of matters relating to family

law and many legal firms subsist as family law practices. Consider the following examples:

26
Other parental rights and responsibilities held in respect of minor children include care, contact and
maintenance.
27
The person who is appointed as guardian by the court could be a member of the extended family or an older
sibling. In the case of a child admitted to a care facility, the head of the care facility becomes the child’s
guardian. The High Court remains the upper guardian of all minor children.
28
You will learn more about the rights and duties of guardians when you study the Family Law (FALA611)
offered on the IIE Bachelor of Laws degree.

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• Engaged couples who would like to regulate the patrimonial consequences of their
future marriage by an ante-nuptial contract, require the services of a legal practitioner.

• Life partners who are parents of children may require the assistance of a legal
practitioner in drafting a parenting agreement in the event that they separate.

• Life partners may require the services of a legal practitioner to draft an agreement
which will become enforceable in the event of the relationship terminating or one of the
life partners dying. In the absence of an agreement but where there is evidence of a
reciprocal duty of support, the former life partners may sue each other for benefits. A
life partner may also sue a third party for example in terms of a claim for loss of support,
where the third party caused the death of the other life partner upon whom the
surviving partner was dependent.

• Married couples wanting to terminate their marriage usually consult an attorney,

especially when a settlement agreement is required, and matters are complex.

• Married couples wanting to change their matrimonial property regime will also require
the services of a legal practitioner to bring an application before the high court as well as
draft a new ante-nuptial contract if one is necessary.

• Surrogacy agreements to be concluded between commissioning parents and the

surrogate mother are best drafted by a legal practitioner. The surrogacy agreement is
only valid once approved by the high court.

In practice, disputes falling purely into the law of persons seldom occur. As we indicated at
the beginning of this chapter, a dispute may involve more than one branch of law. Consider
the following examples:
• A dispute concerning the ability of an unborn child to inherit will touch on both the
law of persons and the law of succession.
• A dispute as to whether the unborn has a right to life will touch on both the law of
persons and fundamental rights.
• A dispute as to whether a child born with physical and or deformities caused by
prenatal injuries due to the mother being involved in a motor vehicle accident would
touch on both the law of persons and the law of delict.
• A dispute concerning mental capacity, insolvency, the emancipation of a minor or
any status affecting matter would touch on both the law of persons and the law of
contract.

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Introduction to the law of contract

The content of this chapter corresponds with learnings unit 2 and 3. In this chapter, we will
cover material not covered in the prescribed textbook.

What is a contract?

Lay people encounter the world of business through the contracts that they enter into. This happens
most frequently when goods are bought and sold at a grocery store or services are required from
specialist such as a plumber, motor vehicle mechanic or a dentist. A contract may be described as an
agreement or promise between two individuals, that one or both of them will do something, usually
in exchange for payment, if it is a commercial agreement.

Are all promises to do something binding? Do all promises create legally binding obligations?
Consider your promise to go to the movies with a friend. You forget about the date and your friend
is furious. Can she sue you for breach of promise? You did make a promise and you did agree on the
date and time. As you can tell, breaking of this type of promise might ruin the friendship but it will
not land you in court! In other words, no legal consequences will follow. Only agreements, to which
the parties clearly intended to be legally bound, create a contract and are legally enforceable.

Contract definition:

A contract is an agreement which is enforceable by law and which creates rights and
duties between the contracting parties.

The Role of the legal practitioner in contract formation

The work of attorneys includes the drafting of contracts. Legal drafting is a skill acquired through
experience and cannot simply be picked up by reading books or obtaining a law qualification. In
order for you to understand the format and conventions used in typing legal documents such as
contracts, we set out a few principles that legal practitioners should employ when drafting
agreements.

According to Lewis and Kyrou’s Basic Principles on Legal Drafting,29 the legal practitioner should do
the following:

• Ensure that the client’s instructions are clearly understood.

29
Hofmann. IM, Lewis and Kyrou’s Handy Hints on Legal Practice 2nd edition 1993 Lexis Nexis Durban p.329-
332.

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• Ensure that a contract is the best way of securing the client’s objectives.
• Become familiar with the law relating to the subject matter of the contract.
• Use plain English and avoid using complex legal phrases and overly technical terminology;
keeping in mind that the client may not be legally trained; and that understanding is
important for consensus to be reached.
• It is more important to be clearly understood. Therefore, clarity and certainty must always
supersede style.
• Be brief.
• Use punctuation - punctuation changes meaning.
• Check spelling both manually as well as using text editing programmes and applications.
• Use legal precedents with caution and ensure that the precedent is up to date.
• Ensure that the precedent suits your client’s objectives according to the instructions
received.

Van Eck (2021) suggests that the legal practitioner must take into consideration that reader of the
contract may be a person of “average literacy skills and minimal experience in dealing with that
particular subject matter.”30 As suggested above, the language and style used in drafting the
contract should enable the reader to understand the content of the contract with little effort. The
writer suggests that the following principles are employed:
o “The context, comprehensiveness and consistency of the document;
o the organisation, form and style of the document;
o the vocabulary, usage and sentence structure of the document; and
o the use of any illustrations, examples, headings or other aids to reading and understanding
in the document.”31

When drafting a commercial agreement, simplicity is suggested. Consensus or the ‘meeting of

minds’ requires understanding around what the parties to the contract are agreeing to. It should be
clear to both parties what is expected of them, leaving no room for any other interpretation other
than what was agreed upon. The contract should therefore specifically include: 32

• The contracting parties clearly identified

• The performance – obligations to be performed – clearly expressed

• The form of payment and details of payment must be clear

• who will pay whom;

• the amount to be paid; and

30
Van Eck. M, Guidelines for writing in plain language DR 21 2021. Van Eck (2021)
Accessed on 6 January 2023 https://www.derebus.org.za/guidelines-writing-plain-language/
31
Van Eck (2021) note 27 above.
32
Things to Consider When Drafting a Business Contract author unknown. Accessed 6 January 2023
https://www.okeeffeattorneys.com/things-to-consider-when-drafting-a-business-contract/

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• when the payment will be made

• Circumstances under which the agreement will be terminated

• Identify any specific legislation that applies to the contract

Duties of the ‘contract drafter’

According to van Eck (2022), the legal practitioner as drafter of the contract holds the unique
position of “communicator…interpreter and an expert in legal knowledge.” 33 Where the legal
practitioner fails to adhere to the drafting principles set out above, he fails to carry out his
professional and ethical duties towards his client and consequently fails to act in his client’s best
interests. This can have significant professional and personal consequences for the practitioner who
may, in terms of the Legal Practice Act, 2014 be disciplined. Van Eck (2022) sets out ten principles to
which the legal practitioner should adhere as a drafter. One of these principles, the duty to maintain
adequate competencies and skills, as set out in the Code of Conduct article 3.11, to which all legal
practitioners are bound. The legal practitioner must therefore ensure that the contract is valid and
enforceable by applying the knowledge and skills expected of a legal professional, which include
proficiency in the language in which the contract is drafted. 34 In instances where it cannot be shown
that the legal practitioner as drafter breached his professional ethical duties, a poorly drafter contact
will have a negative impact of the contracting parties.

A member of the legal support team will not be requested to draft a contract. We include the above
information here to high-light the important role played by support staff in ensuring that the legal
practitioner meets his/her professional obligations owed to the client. A typed contract must be
error free and properly punctuated.

Breach of contract, causes of action and litigation

Once it is established that a valid contract exists and that one of the parties have breached their
duties, to which the other party had a legally recognised right, legal proceedings may commence to
enforce that right. The legal practitioner will decide on the appropriate cause of action. A potential
litigant must have a legally recognised cause or reason for the action he wishes to pursue legally. The
following causes of action may flow from the breach of a contract:

• Goods sold and delivered

• Work done and materials supplied
• Professional services rendered
• Money lent and advanced

33
Van Eck. M Duties of the contract drafter Journal for Juridical Science 2022:47(1):1-26. Van Eck (2022) p.2.
Van Eck (2022)
34
Van Eck (2022) pp. 14-15

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• Instalment sale agreement

Either the simple summons or particulars of claim (attached to a combined summons) will mention
the course of action giving rise to the claim against the other party.

The following are examples of the relevant paragraph in the particulars of claim setting out the
cause of action:

Goods sold and delivered

4.

The plaintiff’s claim is against the defendant for the amount of R150 000 being the amount
due owing and payable by the defendant to the plaintiff in respect of goods sold and delivered
by the plaintiff to the defendant at the defendant’s special instance and request during the
period March to August 2020 (both months inclusive).

Work done and material supplied

4.

The plaintiff’s claim is against the defendant for payment of the sum of R750 000 being the
amount due owing and payable by the defendant to the plaintiff in respect of work done and
material supplied in connection therewith by the plaintiff for and on behalf of defendant at
the defendant’s special instance and request during the period May to August 2020 (both
months inclusive).

Professional services rendered

4.

The plaintiff’s claim is against the defendant for payment of the sum of R200 000 being the
amount due and payable by the defendant to the plaintiff as the agreed, alternatively fair and
reasonable remuneration for professional services rendered by the plaintiff to the defendant
during the period May to August 2020 (both months inclusive) at the defendant’s special
instance or request.

Legal Remedies:

To learn more about legal remedies and the procedure followed, read through Chapter 11, pages
148 to 150 of the prescribed textbook.

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Whether motion or action proceedings, plaintiff must ask the court for relief. The desired relief is set
out in the prayer at the end of the particulars of claim. The following is an example of a legal remedy
sought by the plaintiff and included in the prayer section of the particulars of claim:

Wherefore plaintiff prays for judgment:

(i) cancellation or confirmation of cancellation of the agreement;
(ii) return of the goods as mentioned in the particulars of claim;
(iii) payment of damages to be determined by the court;
(iv) interest a tempore morae;
(v) legal costs;
(vi) further and/or alternative relief.

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Introduction to the Law of Delict

What is the law of delict ?35

The law of delict is part of the law of obligations. An obligation is created between a
wrongdoer (the person who performs the delictual action) and the person who suffers harm
(the aggrieved person or victim) because of the wrongdoer’s obligation to compensate the
aggrieved person. The aggrieved person acquires a right to claim compensation or damages
from the wrongdoer and the wrongdoer has a corresponding obligation to compensate the
aggrieved person as a consequence of the harm suffered by the wrongdoer’s conduct.

A delict is defined as “an act of a person which in a wrongful and culpable way causes
damage to another.” The elements that make up a delict are:

• Conduct;
• Wrongfulness/unlawfulness;
• Fault;
• Causation; and
• Damage.

All five of these elements must be present in order for the victim to successfully sue for
compensation. Where one of the elements are missing, no delict has occurred and therefore
no liability arises based on delict. South African law does however recognise instances
where liability arises in the absence of fault. This is referred to as strict liability.

Is there a difference between a delict and a crime?

Although a crime also constitutes wrongful and culpable action, there are two main
differences. The law of delict falls into the sphere of private law and protects private law
interests. A crime falls into the sphere of public law, which protects public law interests. In
the law of delict, the remedies available to the aggrieved person are civil law remedies such
as compensation. In criminal law, the remedies available to a complainant or victim of crime
are criminal law remedies and are aimed at punishing the wrongdoer. In criminal law it is
the state that pursues the remedy on behalf of the public. It is possible for a single action to
result in both delictual and criminal liability. There is nothing in our law that prevents a
victim of crime suing the perpetrator of the crime personally in a civil lawsuit while at the
same time, charging the wrongdoer for an offence in terms of the criminal law. An example

35
You will learn more about the law of delict in the module LADE6212 offered on the IIE Bachelor of Laws (LLB)
degree.

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of this occurs in the case of assault: assault is a crime in our law, and one may sue an
offender for damages and compensation sustained, for example, medical expenses for
injuries. If the state is successful in the prosecution of the perpetrator in the criminal law
courts, the court may impose a sentence or a fine on the perpetrator. If the victim of the
crime sues the perpetrator, they will receive compensation for the harm caused by the
criminal action. The law of delict serves a compensatory function.

The law of delict and the Constitution

The Bill of Rights in the Constitution applies to all law, including the law of delict. The law of
delict forms part of the common law and our courts must, in the interpretation of the
common law, consider the spirit, purport and objects (aims) of the Bill of Rights. The Bill of
Rights therefore also regulates private law relationships. All basic delictual principles are
subject to the values contained in the Bill of Rights, for example, the principles of
reasonableness, fairness and justice.

Basic concepts regarding the Law of Delict

Conduct
For the purposes of the law of delict, conduct may be defined as a voluntary human act
which may take the form of a commission (a positive act) or an omission (failing to act).
Therefore, only the action of a human being may be regarded as conduct for the
purposes of the law of delict. This does not mean that a company, a juristic person,
could never be held liable. A juristic person acts through its organs or members who are
human. Where a vicious dog bites a person, it is not the action of the dog that is
regarded as conduct but the action of the person in control of the dog.

Human behaviour will constitute conduct only if it is voluntary. Human behaviour is

voluntary only if it is susceptible to the control of the will of the person. By
voluntariness, it is meant that the person has the mental ability to control his
movements. The person’s mental capacity at the time that the act occurs is therefore
crucial in determining whether the action was voluntary.

Can you think of any involuntary behaviour? Consider a sleepwalker, his behaviour
cannot be considered voluntary conduct.

Can you think of what would constitute an omission? Consider a lifeguard that is so
engrossed in the responses to photographs of himself posted on social media that she
does not notice a child drowning in the swimming pool. While the lifeguard did not will
the drowning, she could have saved the child from drowning. As such, the lifeguard had
a legal duty to save the child from drowning in a pool because that is what a lifeguard is

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legally trained to do … the omission by the lifeguard to save the child then has legal
consequences in delict.

Wrongfulness
An act will be considered delictually wrongful only when it has as its consequence a
factual infringement of an individual interest. In other words, if the action does not
result in the infringement of another person’s interests, the act is not delictual even if it
may be considered to be the wrong thing to do.

Can you think of an action that may be considered delictually wrong? If a car is driven at
200 kilometres per hour in a 120-kilometre zone, is the driver’s conduct delictually
wrong? No – the driver may be committing a criminal offence by speeding but as long as
no-one is injured because of the driving, the action is not delictually wrong. The fast
driving did not have an “injurious” consequence.

When deciding whether or not action is delictually wrongful, the boni mores test is
applied. Boni mores means the legal convictions of the community. An act is wrongful
according to the legal convictions of the community if the action infringes on the
subjective right of another. The question that must be asked is whether the community
regards the relevant action as delictually wrongful. The boni mores criterion is an
objective criterion. Even though an action may infringe the judge’s personal or religious
views, her task is to define and interpret the legal convictions of the community. She
does this by applying the legal principles and rules; she considers the previous decisions
of the court where the legal convictions of the community were considered in a similar
matter; she considers the evidence presented; and any research gathered; and then
applies all of this to the particular circumstances of the case before her.

It is not always necessary to apply the boni mores test to determine whether conduct is
wrongful. The fact that there is an injurious consequence gives rise to a provisional
assessment of the conduct as wrongful since there is a factual infringement. It may then
be assumed in light of the factual infringement that the conduct violated, the boni mores
test applies unless the defendant is able to show that the conduct was in fact
permissible. The conduct that was presumably contra bonos mores (against good public
morals) may become permissible if the defendant provides a ground of justification. 36

36
We discuss these below.

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What role does the “reasonable person” play in the application of the boni mores test?
When investigating the content of the legal convictions of the community, it is asked
whether the reasonable man would regard the infringed interest of the plaintiff
(aggrieved person) to be legally reprehensible. The reasonable person is seen to be the
embodiment of the legal convictions of the community. Even though the convictions of
the reasonable person are considered, the boni mores test for wrongfulness still remains
an objective assessment. The test of the reasonable person plays a significant role in
determining the culpability of an individual in the law of delict.

Wrongfulness as an infringement of a subjective rights37

You learned earlier in this module that the Law of Persons determines who or what is a
person and what they may or may not do. You also learned that the Law of Persons
forms part of private law, and that private law regulates the relationship between legal
subjects. In order to understand subjective rights, we need to understand how they
function. For every right there is a mutual obligation. Therefore, the holder of a
subjective right has certain powers in relation to the object of their subjective right. The
exercise of that power entails that other legal subjects respect the subjective right, that
is, respect must be given to the relationship that exists between the legal subject and
the legal object. Part of the regulation of the relationship between legal subjects by
private law entails the protection of the subjective right from infringement. By
protecting the subjective right, private law allows the holder of the subjective right (the
plaintiff in a lawsuit based in delict) to enforce their right against the wrongdoer (the
defendant or person who has caused harm or an injurious consequence).

What sort of subjective rights are protected in private law? Can you think of delictual
wrongs that cause harm? If an academic alleges that their colleague plagiarised their
doctoral thesis, do you think that a subjective right has been infringed? Suppose that the
colleague loses her job at a prominent university as a consequence of the allegation. Can
a good name or academic reputation be a subjective right that is capable of being
infringed? Suppose that the allegation is not true – is the action of lying a delictual
wrong? Is losing one’s job as a result of reputational damage an injurious consequence?
In this example, the subjective right is called a personality right and the object of the
right is the good name or reputation of an individual.

37
Refresh your memory regarding subjective rights and objects of rights by reviewing the content on pages 10
and 11 of this reader.

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What other types of subjective rights are there and what are the objects of those
rights?

Subjective right Object of the right The right is enforceable

against:
Personality Rights Aspects of one’s damages may be claimed
personality such as a good from the person who
name (reputation), dignity infringed on the right
and privacy
Personal Rights The right to performance a debtor, the person owing
by others, a duty held by the performance
another to do something
Real Rights things that are owned, the whole world
physical things
Intellectual Property Rights creations of the human damages may be claimed
mind over which from the person who
copyrights, trademarks or infringed on the right
patent rights are held

Grounds of Justification

As indicated above, the conduct that was presumably contra bonos mores may become
permissible if the defendant provides a ground of justification. What are grounds of
justification? Grounds of justification are related to the boni mores of society. The
question that must be answered is: would society say that someone should be punished
for their act in the circumstances? In other words, was there a good enough reason
(justification) for the person to have acted in a way that is usually seen as wrongful? If
yes, then this renders the conduct reasonable and lawful in the particular
circumstances. Think of breaking a window on your neighbour’s house. Usually
damaging someone’s property is unlawful. Now imagine that you broke the window in
order to save the neighbour from a house fire. Would it be fair to hold you liable for
breaking the window in those circumstances?

There are eight grounds of justification:

• Private defence.

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• Necessity.
• Provocation.
• Consent.
• Statutory authority.
• Power of chastisement.
• Public authority.
• Official command.

In the law of delict, the onus to prove the existence of a ground of justification rests with
the defendant (wrongdoer).

Fault
Because the definition of a delict requires blameworthy conduct, fault in the form of
intent or negligence on the part of the wrongdoer is essential to render the wrongdoer
delictually liable. Our law does create exceptions where delictual liability arises even in
the absence of fault. 38 Fault implies that the law attributes blame to the wrongdoer
based on their ability to direct their will as an accountable person in the case of intent
or to the wrongdoer’s attitude or conduct as in the case of negligence. In other words,
where there is no voluntary conduct, blameworthiness and accountability are absent.
Academics have distinguished wrongfulness and fault in the following way:
wrongfulness qualifies the conduct as such – the conduct was unreasonable according
to the legal convictions of the community whereas fault qualifies the person
(wrongdoer) who acted wrongfully and therefore blame in law attaches to the person
who acted contrary to the legal convictions of the community. If in law a person is found
to be unaccountable, they are also not legally blameworthy.

Intent can be defined as the reprehensible state of mind of an accountable person who
directs his will towards achieving a particular result (injurious consequence) which he
causes while being conscious of the wrongfulness of his conduct.

Intent takes the following forms:39

• Dolus directus – direct intent is present.

• Dolus indirectus – indirect intent is present.
• Dolus eventualis – the wrongdoer foresaw the possibility of the injurious
consequence and reconciled himself with that possibility.

38
You will learn more about strict liability in a module focusing on the law of delict.
39
For the purposes of this module, you do not need to be able to define or apply the different forms of intent.

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Negligence is defined as the blameworthiness attaching to the conduct of an

accountable person if the reasonable man in the position of the wrongdoer (defendant)
would have acted differently. The reasonable man would have acted differently if he
foresaw the wrongful causing of damage and would have prevented it.

How can accountability be negated?

Our law accepts that a person should be held accountable for their actions or omissions
if at the time of the occurrence of the injurious event, the wrongdoer had the necessary
mental ability to distinguish between right and wrong and if they were able to act in
accordance with that appreciation. Thus, the lack of accountability will negate fault.40
According to our law, a person will lack accountability where one or more of the
following factors are present:

• Youth.
• Mental illness.
• Intoxication or a similar condition induced by drugs.
• Anger due to provocation.41

Causation
Our law distinguishes between factual causation and legal causation. When the
available evidence points to the fact that an act has caused a certain consequence, we
say that the act was the factual cause of the harm. We then say that a causal nexus
exists between the wrongdoer’s conduct (the infringement of a subjective right) and the
injurious consequence or harm suffered. Just because the causal nexus or causal
connection exists, it does not mean that fault can be attributed to the wrongdoer. In
order for conduct to be the legal cause of the harm suffered, the nexus between the act
and the consequence must not be too remote.

In terms of the conditio sine qua non or “but for” test, conduct has factually caused a
consequence if that conduct cannot be mentally eliminated without the consequence
also not materialising. In certain circumstances, an intervening action or conduct of the
victim themselves, may sever the juridical link or causal chain of events between the
factual cause and the consequence. The intervening action is called a novus actus
interveniens.

40
Negate means to make ineffective or to nullify. Because the person is too young to appreciate the
wrongfulness of their actions, their youthfulness negates or cancels out accountability.
41
Neethling et al p.131. You will learn more about how these factors render a person culpae incapax when
you study the law of delict. For the purposes of this course, you need only how accountability is negated and
factors that negate fault.

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As stated above, for a wrongdoer’s conduct to be the legal cause of the harm suffered
by a plaintiff, the consequence must not be too remote. The question of legal causation
arises when one must determine for which of the harmful consequences, caused by the
defendant’s wrongful culpable conduct, they should in law be held liable. In other
words, the court must determine which consequences should be imputed to the
wrongdoer.
Damage
As indicated above, the law of delict serves a compensatory function. We speak of
“damages” when an impaired interest or the infringement of a subjective right can be
restored through money if the impairment caused the plaintiff to suffer pecuniary (or
monetary) loss. However, where the impaired interest cannot in reality be compensated
for by means of money, this type of compensation is referred to as “satisfaction” or
“solatium.”
The distinction between patrimonial and non-patrimonial loss
Where the impaired interest can be restored through money, the holder of the
subjective right or interest (victim or injured person) has suffered patrimonial damage.
(There is a ‘price tag’ to the damage) Where an impaired interest cannot be
compensated by means of money, the holder of the subjective right or interest has
suffered non-patrimonial loss. A person’s patrimony consists of all his patrimonial
rights, that is subjective rights having a monetary value and includes his expectations of
acquiring future patrimonial rights and all legally enforceable obligations. In other
words, a person’s patrimony is all of his earthly possessions to which monetary value
can be attached.42 Non-patrimonial damage is one that impacts a person’s personality
interest. The objective element in relation to non-patrimonial loss manifests externally
to the person, for example, a person’s reputation in the community may be damaged if
someone spreads a rumour about that person on social media or a newspaper publishes
a defamatory statement. The subjective element of non-patrimonial losses manifests
internally to the person, for example, hurt feelings, shock and dismay on hearing about
the vicious rumour circulating in the online community or reading the defamatory
statement in a newspaper. 43 There is no ‘price-tag’ on hurt feelings or anxiety attacks,
for example, but money is awarded to make the injured person feel better or console
them.

Injuries to personality that fall under the category of “physical-mental integrity” are:

• Pain and suffering.

• Shock (psychological injury).

42
Neethling, Potgieter and Visser Law of Delict 7th ed 2014 p.229
43
Neethling et al pp.250-252

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• Bodily disfigurement.
• Loss of amenities of life.
• Shortened life expectancy.

If patrimonial loss is measured by the actual cost of the damage, how do our courts
decide on the amount of compensation to be awarded for non-patrimonial loss? Our
courts consider the extent or impact of the injury, the extent to which the injured
person has experienced a loss of happiness and the extent to which money is able to
provide the injured person with reasonable consolation. 44

Causes of action and litigation

Once it is established prima facie that a delict has occurred through the infringement of a
legally recognised right, legal proceedings may commence to enforce that right. The legal
practitioner will decide on the appropriate cause of action. A potential litigant must have a
legally recognised cause or reason for the action he wishes to pursue legally. Where the
harm was caused by a motor collision for example, the appropriate cause of action would
be cited as a “motor collision.”

The plaintiff, having suffered harm as a result of the motor collision, must allege in her
particulars of claim that the defendant driver of the other vehicle was negligent. Here a few
phrases that are commonly used in the particulars of claim to allege negligence:

• The driver failed to keep a proper and/or an adequate and/or any lookout
• The driver failed to exercise any and/or proper control over the vehicle driven by
him/her
• The driver failed to take into consideration the rights of other road users
• The driver failed to apply the brakes of the vehicle driven by him or her timeously,
adequately, or at all
• The driver failed to comply with and adhere to traffic signals and/or the provisions of
the Road Traffic Act
• The driver failed to avoid the collision when by the exercise of reasonable care,
he/she could and should have done so.

Relief sought and the plaintiff’s prayer

Whatever the cause of action, the plaintiff’s particulars of claim will conclude by setting out
the relief sought. Relief, in the context of litigation, refers to the redress or assistance that
the plaintiff seeks from a court. While we will not discuss the relevant remedy used to claim

44
Neethling et al p.256 quoting Ogus.

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compensation, we will say that a remedy is used in order to obtain relief or in the case of a
motor vehicle collision, compensation for harm caused by the negligence of the other
driver. Paragraphs 4 to 6 of the sample particulars of claim below set out the reason for the
claim, informing the court why the plaintiff believes that the defendant owes him/her
compensation. The prayer tells the court what the plaintiff wants as compensation.

Sample particulars of claim based on a motor collision:

PARTICULARS OF CLAIM

1.
The plaintiff is Jonathan Rodrique Ndimande, an adult male accountant resident at 20 Queen
Mary Close, Manor Gardens, Durban.

2.
The defendant is Jayanathan Ismail, an adult male graphic designer, resident at 555 Berea
mansions, 200 Berea Road, Berea, Durban.

3.
The plaintiff is the owner of a Toyota Prado vehicle bearing registration number ND 456 401.

4.
On 1 March 2021 and at the corner of Lillicrap Lane and Bowling Avenue, Manor Gardens,
Durban, a collision occurred between the plaintiff's vehicle and the defendant's vehicle, a BMW
3 Series bearing registration number XXP 123 GP, which vehicle was at all material times driven
by defendant.

5.
The collision as aforesaid was caused by the sole negligence of the defendant in that he was
negligent in one, more or all of the following aspects:

5.1 failed to keep a proper look-out;

5.2 drove at a speed in excess of the speed limit.

6.
As a result of the collision as aforementioned, plaintiff suffered damages in the amount of
R60 000, being the fair and reasonable and necessary costs of repairing plaintiff's vehicle to its
pre-collision condition.
7.

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Despite proper and lawful demand defendant fails or refuses to pay the aforementioned
amount or any part thereof as claimed to plaintiff).

WHEREFORE PLAINTIFF PRAYS FOR JUDGMENT AGAINST DEFENDANT FOR:

a) Payment of R65 000

b) Interest on the above amount at the rate of 15,5% a tempore morae
c) Cost of suit.

Signed at Durban on this _______________day of _______________ 2022.

_______________________________
Van der Kessel Attorneys
Attorneys for Plaintiff
25 Carlisle Street
Durban

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The Law of Succession

This content supports learning unit 6. Please study in conjunction with Chapter 22 of the
prescribed textbook. We deal with the role of the legal practitioner with regards to the
drafting and execution of wills and touch very briefly on the administration of estates.

Wills and estates in legal practice

In practice, a client will approach a legal practitioner to draft a will. Once it is established that
the client has the capacity to make a will, that is he or she is 16 years or older and is of sound
mind, the legal practitioner can put their client’s wishes “to paper.” The Wills Act 7 of 1953
sets out the requirements for a valid will.

Drafting of Wills

In Raubenheimer v Raubenheimer and Others, the court remarked that a last will and
testament is probably the most important document that a person will ever sign during their
lifetime and found it to be “a never-ending amazement” that so many people rely on
untrained people to draft their wills. 45 Courts often deal with disputes arising out of badly
drafted wills or well-meaning testators relying on bad advice. The legal practitioner is
expected to act with care and skill in advising the client and drafting the will. The duty is not
only owed to the client (testator/testatrix) but also to the beneficiaries. Where a legal
practitioner (and support staff acting on his/her instruction) fails in the duty of care towards
the client, and if found to have acted negligently, the legal practitioner may be sued by the
beneficiary for damages arising out of the economic harm suffered.

Execution of the Will

While the legal practitioner is responsible for drafting the will and translating the client’s
wishes into legal terms, it is the legal support staff that are responsible for typing of the will
and very often ensuring that the will is properly executed. ‘Executing a will’ is the technical
legal term for correctly signing a will, as required by law, so that it becomes legally binding. A
will is properly and correctly executed if the execution complies with the requirements of the
Wills Act, 1953.

It is important that the attestation clause of the will is properly set out, with the correct detail
and spacing. Care should be taken during execution in instances where the client is disabled or
differentially abled (being paralysed or has physical deformities that make signing the will
difficult or impossible including blindness or being partially sighted) or illiterate. The Wills Act
sets out strict requirements for execution in instances where the testator/testatrix is unable
to sign the will with a convention signature.

45
Raubenheimer v Raubenheirmer and Others 2012 (5) SA 290 SCA

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Sample attestation clause:

Signed by me at ___________________________this _______day of ___________20__ in

the presence of the undersigned witnesses, all of us being present at the same time.

___________________________ As witnesses: 1.____________________

Julien Sanchez

Testator 2.____________________

Rules regarding signing:

Whether the execution of the will is supervised by the legal practitioner or the support staff,
the following rules regarding execution must be complied with:

Location of testator’s signature:

The testator must sign each page of the will and sign on the last page of the will as close to the
end. In Kidwell v The Master, a will was declared to be invalid because the testator placed his
signature 17 centimetres (6.7 in) after where the will ended. 46

Testator’s signature:

• Manner of signing:
The testator may sign in full, by writing his/her initials, by making a mark such as an X,
by placing his/her fingerprint or another person may sign the will in the testator’s
presence according to his/her directions.
• Will signed with a ‘mark’:
The will must be signed in the presence of the commissioner of oaths who must also
sign each page of the will. The commissioner of oaths must certify that he has
satisfied himself/herself as to the identity of the testator and that it is the will of the
testator. It should be noted that only the testator may sign using a mark or fingerprint.

Witnessing the Will:

The will must be signed by the testator in the presence of both witnesses and where
applicable, also in the presence of the commission of oaths. The witnesses may attest to the
testator’s signature by signing in full or writing their initials. The witnesses do not attest to the

46
Kidwell v The Master 1983 (1) SA 509 (E). It was held that the Will did not comply with section 2(1)(a)(i) of
the Wills Act, 1953

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contents of the will. The witness may not make a mark or place their fingerprint on the will –
only the testator may do so. The commissioner of oaths cannot sign as a witness as well.

Blind or illiterate testators

The will should be read to the testator before he/she signs the will.

Legal Practitioner nominated appointed as Executor

In many instances, a testator/testatrix may nominate a legal practitioner as the executor of

their will. As a person having specialised knowledge of the law of succession and the
administration of estates, the legal practitioner is well placed to perform this role. You can
read more about the role of the executor on page 353 of the prescribed textbook.

Administration of the deceased estate

Many legal practices have a separate department that deals with the administration of
deceased estates. Where the legal practitioner is appointed as an executor, he/she must open
a separate banking account to receive funds due to the estate and many not use the firm’s
general trust account for this purpose.47

47
The Legal Practice Act 28 of 2014 (LPA) and the Rules made under the authority of ss 95(1), 95(3) and 109(2)
of the LPA, legal practitioners are required to prepare and maintain trust accounting records relating to
deceased estates. Section 87(3)(c) of the LPA states: ‘For the purposes of subsections (1) and (2), “accounting
records” includes any record or document kept by or in the custody or under the control of any trust
accounting practice which relates to…(c) any estate of a deceased person …in respect of which an attorney in
the trust account practice is the executor… or which he or she administers on behalf of the executor…’

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