In the Valentine mood…
‘Moreover the female sex is generally colder and more moody than the male sex, and less fitted for affairs which require an understanding; therefore the male sex is given by nature a sort of authority over women. For it belongs to the wisest to rule…’
(Grotius 1.3.8)
Law of Persons 2011
• Slides on net: \\jackal\user\home\dept\lawr• Handout: reading list / legislation / prob questions• Tutorials (+- 3rd week for Persons) & class work• Important dates:
– 24 Feb: RAF v Mtati 2005 (6) SA 215 (SCA) Adv. Gavin Dugmore
– 18 April: Assignment– 18 May: Test
• Lecture times: ‘No first period and lunch time slot please surely it’s unconstitutional’
Introductory Remarks
• LOP: academic interest?– Interrelationship between law and society.– Interdisciplinary study.
• LOP: importance?– Legal subjects.– Legal personality – beginning and end.– Different classes of persons.
• Scope of LOP?– Public law / Private law divide.
‘Private law ceases to be regarded as some brooding Roman-Dutch omnipresence in the sky to be revealed as a public mechanism sanctioned by the state for the regulating of social transactions.’ (Cockrell ‘Can you Paradigm? – Another Perspective on the Public Law / Private Law Divide’ 1993 Acta Juridica 227 at 234)
Compartmentalising ??
• Practice(i) Analytical part
(ii) Empirical / functional part
(iii) Normative part
What to guard against…
The meaning of legal personality
Every human being is a person in the law, but not every person is a human being.
• The law is at liberty to confer legal personality upon any entity it sees fit.
• TWO classes of persons in law:– Natural persons – Juristic persons
Natural Persons
• In South Africa, every human being is a natural person.
• This has not always been the case:
– In Germanic law and Roman Law, some humans were accorded reduced status:• Slaves
• POWs
• Monstra: severely malformed children.
Tjollo Ateljees Edms Bpk v Small 1949 1 SA 856 (A):
‘The Dutch Jurists generally received the Roman rule that a child which is a monstrum [...] is not human and cannot therefore be the subject and so the transmitter of rights.Reference or lip service to a vague and nebulous notion is not enough to establish it as a rule of law.’
Juristic Persons?
• A juristic person is a social entity, a community or an association of people.
• Such an entity is ‘the bearer of judicial capacities, subjective rights’ (and the accompanying entitlements and legal obligations in its own right), just like a natural person.
• A company is an example of a juristic person.
Can anyone/anything other than natural persons or a juristic person be vested with legal personality?
• If someone is deceased?– Continental law– Germanic law– Indigenous law systems:
• Ukungena custom• Ukuvusa custom
• Animals?– Middle Ages – Eastern countries – 2008 – Vienna…– South Africa
Suggested Response
• Deceased?
• Animals?
Thus: only natural and juristic persons have legal personality
Significance of the beginning of legal personality
• Legal personality begins at birth.
• Before birth, the foetus is generally regarded not as a legal subject but rather as merely forming part of the mother.
• The foetus (in general) has no rights, duties or capacities.
• However, the application of the nasciturus fiction AND common delictual principles can assist the fetus once born…