LAW OF PERSONS

2024
TOPIC 1

•Reading materials on unit 1

1. Heaton J. [Link] South African Law of Persons. Sixth Edition. Lexis Nexis,
Durban. Read Chapter 1.
2. Heaton J. [Link] on the South African Law of Persons. Sixth Edition.
Lexis Nexis, Durban.
3. Barratt A. Law of Persons and Family Persons (latest edition) Read Chapter 2.
Pertinent questions…
What is a person (Legal subject)?
What is a legal object?
What are the various classes of rights?
What is legal capacity?
What are the various types of legal capacity?
What is legal status?
What is the difference between legal subject and legal object?
What are the similarities/differences between a natural person and a juristic
person?
Name and discuss four categories of legal objects?
Definition of Concepts
• Law of persons is that part of private law that determines which beings are
legal subjects, when legal personality begins and ends, what legal status
involves, and what effect various factors (such as being born of unmarried
parents, minority and mental incapacity) have on a person’s legal status.
• It can be defined as that, part of private law and objective law regulating the coming into
being, private law status and the coming to an end of a natural person or a legal subject .
• From law of persons flow some legal juridical capacities and these include:
• Legal capacity, capacity to act, capacity to litigate: these are afforded to all
individuals/legal persons at a particular time and a certain time.
• The existence and extent of these capacities are of particular interest to each
individual because they determine his or her status
Definition of concepts

•Private law deals with the status of persons and with their relationship with each
other and with legal objects.

•When parties deal with each other it is referred to as horizontal relationship.

Horizontal relationship is the nature of the relationship that exist between people
who have equal standing.
• In Contrast to private law, public law revolves around the state in its authoritative
capacity (vertical relationship).
• In public law, the state in its role as the bearer of authority, plays a key role.
What is a Legal Subject/Person?
•In private law the legal term for a person is legal subject.
•A person is a legal subject from birth to death.
•A legal subject enjoys legal status. Legal status is a legal subject’s ability to enjoy
legal rights and to owe legal duties to other legal subjects. For example, a person
sitting next to you in lecture venue enjoys the right to bodily integrity ad you owe
him or her a duty not to infringe on this right by slapping him or her.
•So this means that every person enjoys rights but also owes duties to other persons.
What is a Legal Subject/Person?
•There two types of legal subjects
1. Natural persons
2. Juristic persons

3. Natural persons: In law a natural person is a human being. In South African law, all human
beings are recognized as legal subjects regardless of for example their age, intellectual or
physical ability. Every human being can have rights duties and capacities although the
content of these rights, duties and capacities may vary depending on factors such as the
person’s mental capacity and age.
What is a Legal Subject/Person?
2. Juristic persons (or artificial): A juristic person is not a human being but
regarded as a person in terms of the law. Examples of juristic persons are
companies, close corporations, banks or universities. They are not human, but
the law gives them legal personality. This means they enjoy the rights of a
legal subject, and they have legal status.
What is a Legal Subject/Person?
•We know that a juristic person such as University of Fort Hare needs natural persons such as
professors, lecturers and secretaries to run it but the university will still exist as a juristic person,
even when the natural persons leave or die.
•A juristic person as a legal subject enjoys legal existence independent from that of its members or
the natural persons who created it.
•Naturally a juristic person must always act through its functionaries
•. For example, in the case of a company the directors or officers act on behalf of juristic persons.
However, when functionaries act on behalf of the juristic person, it is the juristic person that
acquires rights, duties and capacities and not functionaries themselves in their personal capacities.
What is a Legal Subject/Person?

•The South African Law recognizes the following entities as juristic persons:
1. Associations incorporated in terms of general enabling legislation, such as
companies ( in terms of the Companies Act 71 of 2008), banks (in terms of the
Banks Act 94 of 1990), mutual banks (in terms of the Mutual Banks Act 124 of
1993) and co-operatives (Co-operative Act 14 of 2005).
2. Associations created and recognised as juristic persons in separate
legislation. Foe example universities, state owned enterprises and other public
entities such as SABC, Telkom and Eskom
What is a Legal Subject/Person?
3. Associations which comply with common-law requirements for the recognition of legal
personality of a juristic person. At common law , such juristic persons are known as universitales
and must meet the following requirements
• A) The association must have continuous existence irrespective of the fact that its members may
vary.
• b) it must have rights duties and capabilities of its own
• c) its object must not be the acquisition of gain
•Measured against the three requirement the courts have held that the following associations have legal
personality: a church, political party and trade union.
•A trust is not a juristic person nor is a partnership a juristic person.
What is a Legal Object?

In contrast to legal subject there are legal objects

•Legal object is anything in respect of which a legal subject can have rights, duties and
capacities but which cannot itself have rights, duties and capacities. The law has not
conferred on legal objects the capacity to have rights duties and capacities.
•Legal subjects have legal rights over legal objects. Legal objects are valuable to the legal
subject either because they have monetary value or because the owners value the object
for sentimental value.
• Legal objects can be animals, furniture, motor vehicles, immovable property and other
things
What is a Legal Object?

•There are four types or categories of legal objects.

1. Corporeal things: these are separate, tangible items which are susceptible to
human control, and which are of value to people. Corporeal things are movable and
immovable property and objects including land, houses, furniture, motor vehicles
and books.(These are real things).
• The right to a thing is a real right.
• For example, the right of ownership one has in respect of one’s motor vehicle or
house is a real right.
What is a Legal Object?
2. Performance: Performance is a human act by which something is done or not done. In other
words, performance are actions that legal subject does or does not do. The right to performance is
a personal right or a claim. For example, if A and B agree that A will sell his motor vehicle to B
for R100,000, B has a personal right to performance by A (or it can be said that B has a claim
against A) that A must deliver the motor vehicle to B. Similarly, A has a personal right to
performance by B, that is that B must pay him R100,000.
3. Personality property: Personality refers to a person’s good name, honour or reputation as well
as his or her dignity and privacy. A legal subject enjoys rights over her personality other legal
subjects must respect these rights as they have a duty not to infringe them.
What is Legal Object?
4. Intellectual property: intellectual property is created by the work of the
human mind. For example, the text of a book, a song and an invention.
Intellectual property refers to the incorporeal objects which come into
existence through a person’s intellectual activity but exist independently of
that person. For example, copyright, bookmarks, designs and patents.
What are rights and duties?
1. Real rights stem from ownership of a physical thing
2. Personal rights arise where the object of the right is
a performance
3. Personality rights – every person has these rights and
may claim damages if they are infringed
4. Constitutional Rights set out in the bill of rights ie
s7-39
What is capacity?
1. Capacity refers to what a person is capable of doing in terms of the
law.
1.1 Passive legal capacity- the capacity to merely have rights and
duties.
1.2 Capacity to perform juristic acts – capacity to actively change
one’s legal position.
i)full capacity
ii) limited capacity
iii) no capacity
Capacity continued..
3. Capacity to be held accountable for wrongdoing a person will be
accountable if:
i) The person has the mental ability to distinguish between right and
wrong
ii) The person is able to act in accordance with this understanding.

4. Capacity to litigate – capacity to be party to a law suit. Locus standi in

judicio
What is status?
• Status means a person’s standing in the eyes of the law
• That is the position held by a person as determined by law. This
entails rights obligations and limitations declared by a legislation.
• It is also the legal identity by which a person, entity, association or
company is recognised.
 SELF STUDY-UNIT 2
• PERTINENT QUESTIONS
1. Is a foetus a legal person?
2. Can a foetus inherit while it is still in its mother’s womb?
3. When can a child attain the age of majority?
4. At what age can a person marry?
5. Ex parte Boedel Steenkamp 1962 (3) SA 954 (O)