Domicile and the dead

• Domicile (Heaton's definition)

  Where is the person legally deemed to be constantly present for the purpose of exercising his or her rights and fulfilling his obligations, even in the event of his factual absence
• It is possible for a person's domicile to be a place other than the place where he lives
• Domicile is often where the person is a citizen, but not always
• Domicile is often where the person is resident, but not always
• Nationality


  Public law relationships between people and nation states
• Domicile


  Concerned with private law matters
• Choice of law/Conflict of laws

  Domicile resolves choice of law problem. Person's domicile will determine which country's rules/laws will be applied
• The last of the gender specific rules still in SA law. Is this constitutional?
• Cannot be applied to a marriage where there is no 'husband' - for example
• A South African court will determine where a person is domiciled by applying the South African rules of domicile, as set out in the Domicile Act
• Scholars argue that, if people who are not free to choose (e.g. prisoners, soldiers, diplomats, civil servants, employees of multinational companies) form an intention to remain in the place where they are stationed, imprisoned etc they acquire a domicile of choice in this place
• The Domicile Act has abolished the doctrine of revival of domicile of origin
• The Domicile Act resolves the problem of endless referrals (renvoi) by stating that the court shall decide the question in accordance with the law of the foreign state, even though a court of that state may apply different choice of law rules
• Exclusivity of domicile


  Can only have one domicile at a time. One excludes the other.
• Tenacity of domicile


  Domicile holds on to you. No one can ever be without a domicile.
• Keeping present domicile


  Until you acquire a new one (Doctrine of persistence)
• Illegal immigrants may be thrown out of a place but they retain that domicile until they have a new one (either by choice or, if under age or mentally incompetent, by closest connection)
• The law does recognise, to a degree, the sentiments of society regarding what happens after the death of a legal subject
• Not for the sake of the dead person, but for the boni mores of society
• Legal respect for the dead

  How to deal with the human corpse - treatment and disposal, and use of human tissue
• Therefore: people may donate their tissue while alive
• When dead, donations may be made by

  • Spouse
  • Partner
  • Major child
  • Parent
  • Guardian
  • Major brother or sister
• A person may receive reasonable remuneration to cover the costs of donation of human tissue, but only from authorised donees as set out in the Act, and in prescribed manner
• Contravention of this or any form of trading in or sale of human bodies, tissues or organs are criminal offences which can result in a fine, or imprisonment of up to 5 years, or both
• Fundamental right of persons to control and dispose of their body tissue, even for personal commercial gain, has to be balanced with the boni mores in preventing the exploitation of its most vulnerable and poor citizens
• S60(4), 60(5) and 61(5) of National Health Act regarding the rules about selling and buying human tissue
• UN General Assembly resolution 'Preventing, Combating and Punishing Trafficking in Human Organs' deplores commercialisation of the human body and acknowledges a global problem
• I.t.o. National Health Act, a person who sells, charges a fee, trades or receives a form of financial or other reward for human tissue, organs, gametes or blood products (other than reasonable remuneration allowed by Act) is guilty of an offence and liable to a fine or imprisonment of up to 5 years, or both
• National Health Act covers the use of and trade in human tissues obtained in this way, making both the collection of tissue and its subsequent use and sale illegal
• Traditional Health Practitioners Act does not contemplate the use of human or other animal tissue when defining the nature and ambit of traditional health practices based on indigenous African traditions
• Deceased's remains


  No longer a 'person' in the eyes of the law, it is a 'thing' with no rights
• Disposal of deceased's remains

  1. Regulated by the Births and Death Registration Act

  2. Corpse may only be disposed in a manner prescribed by the Act

  3. Burial, cremation, burial at sea, or legal use of tissue/organs for transplant/medical purposes
• Pauper's burial


  The state through the local authority provides appropriate support for the disposal of the body
• Body snatching and grave-robbery are considered offences in South Africa, not because the dead body can be 'owned', but to protect the interests of the community and the relatives of the deceased
• Domicile


  • You don't need to own a house - or even live in a house- to acquire a domicile. You can acquire a domicile even if you live in a hotel or lodgings, a boat, a moter-drawn caravan or other vehicle, a tent, or even a cave
• A person can only have one domicile at a time
• Your domicile holds onto you. It is a basic rule that no one can ever be without a domicile
• Section 3(1) of the Domicile Act provides: 'No person shall lose his domicile until he has acquired another one whether by choice or by operation of the law
• The common law doctrine of revival of domicile of origin has been abolished in South Africa
• Section 3(2) provides: Notwithstanding any law or the common law, no person's domicile of origin shall revive except within the meaning of section 1 or 2