LOPF 8

• Legal personality


  The ability to be the bearer of rights and duties
• Death


  The end of legal personality
• Importance of death


  • Repercussions for other legal subjects i.e. creditors and heirs
  • Person can no longer be the bearer of rights and duties but they do not necessarily lose their relevance when the person dies (e.g. child maintenance on the death of the parents)
  • Succession and administration of estates - two main areas of law on the death of the legal subject
• Juristic persons


  Deregistration or winding up of a company in terms of the Companies Act or in terms of the common law (i.e. club members dissolving their common law association)
• Natural persons


  Proof of death - usually a certificate signed by a medical practitioner. Department of Home Affairs issues formal death certificate after receipt of the medical certificate as prima facie proof of death. Death and termination of legal personality are separate matters - ultimately, the legal process (not the medical profession) that determines the end of legal personality.
• Challenges in determining death

  • What is biological death? i.e. life support
  • No body available for inspection?
• Determining biological death


  1. Medical profession makes observations relating to three fundamental anatomical systems: respiratory, pulmonary, neurological

  2. Traditional practice: measure if heart and lungs are working and if not, considered sufficient evidence to a medical practitioner to consider someone dead

  3. Medical practitioners are not infallible though and some people were buried alive - fingernail scratch marks on the inside of tombs

  4. Modern medicine has now provided for measurement of brain activity by EEG as a third means of determining death

  5. However, heart and lung activity may continue after brain death - important for harvesting of human organs and tissues for the purpose of organ transplants
• National Health Act of 1983


  Defines brain death
• Some court decisions rely on the old physical tests of heart and lung, and not the definition of brain death as set out in the National Health Act
• Presumption of death


  Court relies on investigations of circumstantial evidence to determine death and the end of legal personality/subjectivity when there is no absolute proof
• Common law presumption of death

  1. Cause - disappearance of person

  2. Initiated by - interested person i.e. spouse

  3. Standard of proof - balance of probabilities

  4. Effect on marriage - no automatic dissolution, separate application required

  5. Court - application made to High Court with a rule nisi and final order
• Inquests Act 1959 presumption of death

  1. Cause - death by suspected unnatural causes, associated with disappearance

  2. Initiated by - state actors, i.e. police, Minister of Transport

  3. Standard of proof - beyond a reasonable doubt

  4. Effect on marriage - automatically dissolved

  5. Court - magistrate may make finding, High Court confirms
• Factors the court considers in presumption of death cases

  • Age of person when they disappeared
  • Their position in life
  • Their occupation
  • Whether they were exposed to special risk
• Presumption of death is rebuttable - court is not declaring the person dead, must prove the case only on a balance of probabilities
• Statutory procedure: Inquests Act of 1959

  1. Person is dead

  2. And it is suspected they died of unnatural causes, or is missing, or corpse is destroyed or otherwise missing - an inquest may be instituted

  3. Inquests are formal legal investigations into the circumstances of a death, undertaken by a judicial officer (usually a magistrate) with the assistance of the police

  4. If the magistrate can make a finding, beyond a reasonable doubt, that the person is dead, they are recorded as such in terms of the Act (record includes identity, probable cause and date of death and any prima facie accountable people)

  5. Fact that an inquest is instituted does not mean that the common law procedure can't be used as well
• Advantages of Inquests Act procedure

  • State bears all the costs
  • Automatically dissolves a marriage
• Disadvantage of Inquests Act procedure

  Higher standard of proof, namely, beyond a reasonable doubt
• After magistrate's finding in Inquests Act procedure

  Record of inquest sent to High Court. If confirmed, has same effect as a High Court presumption of death order.
• Commorientes


  Presumptions about the order in which people died
• Law of succession


  Certain presumptions: 1. Deceased must be dead and; 2. The heir must be alive at the time the deceased died.
• Registration of death


  1. Stillbirth - Section 18 - medical practitioner present or who examined the corpse, or anyone present - notify Director General of Health Affairs

  2. Natural causes - S14 - anyone present or who became aware or were in charge of funeral - notify Director General of Health Affairs

  3. Unnatural causes - S14(3) and (4) S15(3), S16, S17 - medical practitioner present or who examined the corpse, or anyone present, Director General - notify - Director General, report to police, magistrate (Inquests Act invoked)
• It is the ending of legal personality (and not medical death per se) that has as its consequence, for example, the succession of a deceased estate and dissolution of the marriage.
• When a person who is presumed dead suddenly returns from the dead

  1. As presumption of death is rebuttable, new evidence can be produced. Person presumed dead can apply to the High Court that granted the presumption of death order to have the order set aside.

  2. Certain consequences cannot be changed, namely: dissolution of the marriage. However, patrimonial consequences of order are reversed - thus, heirs must return anything they received.

  3. Those who refuse? - can use the condictio indebiti against those who refuse to return their undue enrichment in this regard.
• Legal personality


  The ability to be the bearer of rights, duties and capacities
• Types of legal subjects

  • Natural persons
  • Juristic persons
• Natural person's legal personality


  Arises at the live birth of a human
• Juristic person


  Occurs through a form of registration with public authority such as registering of a company with the Companies and Intellectual Property Commission (CIPC)
• If a legal subject ceases to have legal personality

  It cannot be the bearer of rights, duties and capacities
• Death of a juristic person


  Ending of the personality of a juristic person does not present many theoretical or practical challenges, there are only few administrative and formal requirements in the statute that govern this termination
• Legal personality of a juristic person

  Comes to an end when the formal requirements for its end are presented or created either in terms of statute or in terms of common law
• Legal personality of a natural person

  Terminates when they die
• Proof of death


  In SA law, evidence of a physical death of a person takes the form of a certificate signed by a medical doctor, upon receipt of this certificate the DOHA issues a formal death certificate which is prima facie proof of a death
• Determining if a person is biologically dead


  The law relies on medical evidence regarding cessation of certain biological functions of the natural person
• Traditional practice to declare someone dead


  The traditional practice is that the heart and lung activity are measured and, if not found, are considered sufficient evidence for a medical practitioner to declare someone dead
• Modern technology for determining death

  Measurement of brain activity as a 3rd measure for determining death, the lack of electrical activity in certain sections of the brain that is done by an EEG machine suggest lack of brainstem activity
• Even though the NHA defines death as 'brain death', there have been some legal decisions that are prima facie in conflict with the definition of death
• Presumption of death


  If there is no corpse to examine, the law has developed mechanisms that approximate the consequences of a finding of death when a corpse is present, the courts rely on investigations of circumstantial evidence to determine the likelihood of a person's death and ending of a person's legal subjectivity
• Common law presumption of death

  A party such as a spouse who has an interest in the disappearance of a person may make an application to the HC, the Court after considering the application issues a rule nisi as a preliminary order of its intention to make an order within a time frame, during this time the rule nisi will be made in Government Gazette + Newspaper for further evidence to be presented, if no evidence the Court will presume the person dead
• Statutory procedure for presumption of death

  When a person is dead and it is suspected to be a result of unnatural causes, or a person is missing, corpse is destroyed or unavailable to be inspected - an inquest may be instituted, if there is evidence beyond a reasonable doubt that the person is dead, the death is recorded according to the requirements of the act
• Commorientes presumptions


  Succession law is created around certain practical assumptions and prerequisites which is that, in principle for the inheritance to take place, the deceased must be dead and the heir must be alive at the time of death of the deceased