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7/28/2019 'Persons 6'.ppt
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Law of Persons 2011
Lecture 6: CTOP and the end of legal personality
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Agenda
Choice on Termination of PregnancyAct:
When does legal personality begin in the
context of the Constitution? (viz. does the fetushave a constitutional right to life?)
End of legal personality
1. Significance2. Legal requirements for death
3. Registration of death
4. Presumption of death
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CLSA v Minister of Health
Legalquestion
Findings:
everyone = every person
No qualification or internal limitation in s12(2)
Intention would have been made unequivocally =s11 & s28
Anomalous consequences
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Is pre-natal life worthy of protection?
Heaton (and Sinclair) Dworkin (Lifes Dominion)
State and community interests
Intrinsic value of life
Meyerson (SALJ1999 (116) 50)
Value of dignity
International instruments re: use ofembryos and fetuses in scientific
research
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Factual scenario
You are an attorney. Mary Watkins and hermother (Sylvia) approach you for advice. Mary, a17 year old student at Rhodes University, is veryoverweight due to a thyroid problem and explainsto you that she has irregularmenses (ie. shedoes not have regular periods). She advises thatshe was raped at a party a few months agowhere she had been given a drink spiked with adrug. She has just discovered that she is 22
weeks pregnant. She wishes to terminate thepregnancy. Her mother, on the other hand, wantsher to keep the baby and has threatened towithhold parental consent to the termination.
Advise Mary and Sylvia fully.
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The end of legal personality
(1) SIGNIFICANCE Legal personality is terminated by death
Dead persons have no rights or obligations
Law still protects the deceaseds body
Handling and disposing of a dead body? Interests of public health
Out of respect for the dead
Significance?
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(2) LEGAL REQUIREMENTS
No general legal definition of death
In the past: test was the irreversibleabsence of natural heart and lung activity
Now: no precise moment death is aprocess which may extend over time
Three sources:
S v Williams National Heath Act definition of death
SALC Discussion Paper on Euthanasia
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(3) REGISTRATION OF DEATH
Registration of death is governed by theBirths and Deaths Registration Act of 1992
No helpful definitions in Act
MUST report death to D-G of Home Affairs
D-G will register the death and issue deathcertificate
If natural causes, anyone present or aware ofthe death must notify the D-G
If suspected unnatural causes, must report tothe police as well
Burial? Crossley v National Commissioner
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Common law
Any interested person may approach HC
Proof on a balance of probabilities
Roman-Dutch Law = unclear, especiallyas regards the period of absence;
therefore SA initially followed the EL rule
(absence of 7 years)
In Re Beaglehole
Now consider a variety of factors
Ex Parte Pieters
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Statutory procedure
S5(2) Inquests Act:
if a magistrate considers a persons death
to be due to unnatural causes, must take
necessary steps to ensure an inquest is heldby a judicial officer
Judicial officer to record findings
Record submitted for review to the HC If HC confirms findings, has same effect
as if HC had made the order
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Effect of the order
Not declared dead only PRESUMED
dead
Rebuttable presumption: In re
Kannemeyer
Can be set aside later
Once order granted, persons estate maybe dealt with as if he/she were dead
Termination of marriage???
Dissolution of Marriages on Presumption ofDeath Act
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For next week:
Stated problem: When one person, and
another who would benefit by the first
persons death, die in circs rendering the
order of their deaths uncertain. (read ExParte Graham)
Status and capacity
Introduction to domicile