LOPF

• Law of Persons and the Family


  Chapters 1 - 3
• Branch of Private Law


  vs Public Law, both Objective
• Legal Definition of 'Person'

  A being, entity or association capable of having legal rights and duties. Carrier of judicial competencies, subjective rights and capacities.
• Every human being is a person in the law, but not every person is a human being
• Real Rights


  Where the object of a right is a physical thing, the right is a REAL right. Operate against the whole world. Corresponding duty not to infringe it.
• Personal Rights


  Where the object of the right is a performance, the right is a PERSONAL one. Operate against a particular person, who owes the performance.
• Protected aspects of personality

  • Physical integrity
  • Bodily freedom
  • Reputation
  • Dignity
  • Privacy
• Relevant sections of the Constitution to the Law of Persons

  • Bill of Rights (most relevant)
  • S9 - Right to equality
  • S10 - Right to dignity
  • S14 - Right to privacy
  • S15 - Right to freedom of religion
  • S25 - Right to property
  • S28 - Children's rights
• When the common law or Statute is inconsistent with the Constitution, the courts are obliged to declare it unconstitutional or develop the common law in line with the Constitution
• Application of the Bill of Rights


  • Applies to all law
  • Binds the legislature, the executive, the judiciary and all organs of state
  • Binds natural or juristic persons if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right
• Passive legal capacity


  Merely to have rights and duties. All persons have it, including babies.
• Capacity to perform juristic acts


  Voluntary acts which have intended legal consequences. Only recognised if person is capable of understanding the legal nature and consequences of his or her acts.
• Capacity to be held accountable for wrongdoing

  Culpae capax (capable of being held accountable). Does the person have mental ability to distinguish between right and wrong, and if so, is the person able to act in accordance with this understanding?
• Capacity to litigate


  Capacity to be party to a lawsuit. Locus standi in judicio.
• Status


  Determines the capacities the person has in the eyes of the law. e.g. minor
• Forms of liability


  • Contractual
  • Delictual
• Unjustified Enrichment


  Used when all else fails. Requirements: 1) Defendant has been factually enriched and plaintiff factually impoverished, 2) Causal link between the two, 3) No valid legal reason that justifies the enrichment.
• Succession


  What happens to your property (estate) when you die. Intestate - without a valid will; Testate - with a valid will.
• Beginning of Legal Personality


  For natural persons - at birth; for juristic persons - at registration.
• In the past, not all people afforded the status of legal subject
• Nasciturus Fiction


  Origins in the law of succession. Suspends the estate until child born alive. Does not confer legal personality on unborn children.
• 2 requirements for the Nasciturus Fiction to operate: 1) The nasciturus is later born alive, and 2) It operates to the advantage of the new born child.
• The Nasciturus Fiction will not apply if the benefit is only to the parents, not the nasciturus.
• The Nasciturus Fiction has been extended to the law of delict for harm suffered to a foetus in utero as a result of an MVA.
• Termination of Pregnancy is governed by the Choice of Termination of Pregnancy Act.
• Proof of birth is established by the 'hydrostatic test' at autopsy. If child drew a breath, lung tissue will float.
• Birth occurs if baby is physically separated from mother, regardless of whether umbilical cord is cut.
• The right to a name or be named vests at birth - a constitutional right.
• Juristic Persons


  Established in two ways: 1) By means of a general enabling Act or 2) By means of a specific Act of Parliament.
• S14 (4) of the Companies Act - issuing of a registration certificate provides conclusive evidence that the requirements for incorporation have been met and that the Co is so incorporated.
• Salomon v A Salomon & Co Ltd

  Locus classicus - once incorporated in compliance with all legal requirements, a Co becomes a person separate from its shareholders or members.
• Separateness of a company can be disregarded in exceptional cases, e.g. tax evasion, fraud.
• Juristic persons have perpetual existence - change in shareholding does not affect existence.
• Juristic persons are liable for their own debts, profits belong to the company (not shareholders unless a dividend is declared), own their own assets, and can sue and be sued in their own name.
• Status of Non-Human Animals

  Non-human animals are legal objects.
• The current distinction between legal subjectivity and legal objectivity may not be responsive to post-millennium sentiments of our community and to the realities of environmental and social economic sustainability and species survival issues.
• Person (legal subject)


  Someone or something that can have legal rights and duties
• Legal object


  The thing to which a legal right relates
• Main types of legal objects

  • Physical things
  • Performances
  • Aspects of personality
• Real right


  A right where the object is a physical thing