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Law of Persons: South African study guide

A plain-language guide to Law of Persons for South African LLB students. Below are the overview, the leading cases and the full first topic. The complete guide, about 37 000 words with practice, flashcards and quizzes, is free in the student portal.

Study guide (beta): written in plain language for South African LLB students and not yet legally reviewed. Check it against your course outline and prescribed material. Educational tool, not legal advice.

Module blueprint

Law of Persons teaches who the law recognises as a person, when that recognition begins and ends, where a person is legally at home, and how age, parentage, mental capacity and other factors change what a person can legally do. It applies Module 1's idea of the legal subject (Introduction to Law T1.5) to real life.

Level: first year, LLB and BCom Law. Prior knowledge: Module 1 Topics 1, 4, 5 and 8 (legal subjects; sources; precedent; interpretation). Curriculum basis: shared core of UP, UCT, UNISA and Rhodes; depth set by Rhodes 2023. Not any university's official syllabus.

Learning outcomes

Code By the end, the student can…
LP1 Explain the law of persons, legal subjects and objects, kinds of legal subjects, and the four capacities that make up status
LP2 Apply the requirements for the beginning of legal subjectivity, including birth and its registration
LP3 Explain and apply the nasciturus fiction, and the constitutional position of the unborn
LP4 Explain how legal subjectivity ends: death, presumption of death, registration and burial
LP5 Determine a person's domicile under the Domicile Act
LP6 Analyse how age affects capacity to act, to litigate and to be held accountable, and when minority ends
LP7 Explain the position of children of unmarried parents: parental responsibilities, proof of parentage, artificial fertilisation, surrogacy and adoption
LP8 Analyse other factors affecting status: mental illness, intoxication, prodigality, insolvency, curatorship, and sex and gender
LP9 Solve law-of-persons problems with constitutional awareness, citing authority accurately

Topics

Topic Subtopics Classification
P1 Persons, status and capacities What the law of persons is; legal subjects and objects; natural and juristic persons; legal capacity, capacity to act, capacity to litigate, accountability Required
P2 The beginning of legal subjectivity Requirements of birth; registration of birth Required
P3 The unborn The nasciturus fiction; prenatal injury; constitutional status of the foetus; termination of pregnancy Required
P4 The end of legal subjectivity Death and its determination; presumption of death; registration of death; the duty to bury and burial disputes Required
P5 Domicile Domicile of choice; domicile of children; persons lacking mental capacity Required
P6 Age and minority Infants and minors; contracts by minors and their consequences; consumer protection; delictual and criminal accountability; capacity to litigate; end of minority Required, the largest topic (may be split into parts)
P7 Children of unmarried parents and parentage Parental responsibilities and rights; unmarried fathers; proof of parentage; artificial fertilisation; surrogacy; adoption Required (Rhodes depth); overlaps with Family Law
P8 Other factors affecting status Part 1: mental illness; curatorship; intoxication; prodigality. Part 2: insolvency; constitutional limits; sex and gender Required (in two parts)

Teaching order: P1 sets the vocabulary; P2 to P4 follow the life of a legal subject from before birth to after death; P5 covers where a person belongs in law; P6 to P8 cover the factors that change capacity; P6 and P8 are each split into two parts.

Coverage: topics against outcomes

LP1 LP2 LP3 LP4 LP5 LP6 LP7 LP8 LP9
P1 ● ○ ○ ○
P2 ● ○ ○
P3 ○ ● ●
P4 ● ○
P5 ● ○ ○ ○
P6 ○ ● ○ ●
P7 ○ ● ●
P8 ○ ○ ● ●

Assessment and source plan

  • Each topic: 15–25 flashcards; a quiz (6 MCQ, 3 short, 2 application) with answer positions balanced; checkpoints and worked problems as in Module 1.
  • End of module: diagnostic test, two original 100-mark practice exams, coverage audit.
  • Primary sources: the Constitution; Births and Deaths Registration Act 51 of 1992; National Health Act 61 of 2003; Inquests Act 58 of 1959; Domicile Act 3 of 1992; Children's Act 38 of 2005; Child Justice Act 75 of 2008 (as amended); Mental Health Care Act 17 of 2002; Consumer Protection Act 68 of 2008; Choice on Termination of Pregnancy Act 92 of 1996; Insolvency Act 24 of 1936. Every statute and case is checked before use and marked.

Topic P1: Persons, status and capacities

A. Chapter identity

Label LP-P1
Subtopics P1.1 What the law of persons is; P1.2 Legal subjects and legal objects; P1.3 Natural and juristic persons; P1.4 Status and the four capacities; P1.5 The constitutional frame
Curriculum basis Rhodes 2023 Theme 1 (law of persons; legal subjects and objects; kinds of legal subjects; constitutional and transformative framing); UCT (legal personality, legal capacity); UP PSR 110 ("private law status")
Prerequisites Introduction to Law T1.5
Outcomes LP1 (main); LP6, LP8, LP9 (introduced)
Status Draft. Children's Act s 17 and Companies Act s 19 checked as noted. Not legally reviewed

B. Start with a problem: four people in a phone shop

One Saturday at a cellphone shop:

  1. Lindo (17) signs a two-year phone contract on his own.
  2. Mrs Khumalo (80), who has advanced dementia, buys a tablet.
  3. Bongani (35) buys a phone for his company, Bongi Tech (Pty) Ltd.
  4. A man walks out with a phone without paying.

Think first: Which of them are "persons" in law? Who can sign a binding contract alone? Who can be held responsible for doing wrong?

C. The big picture

In short: the law of persons answers three questions about everyone the law deals with:

  1. Who counts as a person in law? (humans and some organisations)
  2. When does a person begin and end? (birth and death: P2–P4)
  3. What can each person legally do? (their "status": P5–P8)

Every other part of private law depends on this. A contract, a claim for damages or an inheritance always needs a person to hold the rights and owe the duties.

Key words

Word Plain meaning
Legal subject A person the law recognises as able to have rights and duties
Legal object Something of value a right relates to: a thing, a service, your good name, an invention
Natural person A human being
Juristic person An organisation the law treats as a person, such as a company
Juristic act An act meant to have legal consequences, such as signing a contract or a will
Status A person's legal standing, made up of four capacities
Majority Being an adult in law: 18 in South Africa

D. Teaching the concepts

P1.1 What the law of persons covers

In short: it covers when legal life begins (birth, and the unborn child), when it ends (death), where a person's legal home is (domicile), and what affects a person's status (age, mental illness, drunkenness, wasting money, insolvency). Many rules are now in statutes, especially the Children's Act 38 of 2005, but many are still common law. All of it must comply with the Constitution.

In short: a legal subject holds rights; a legal object is what the right is about.

  • Example: Bongani (subject) owns a phone (object, a thing).
  • Non-example: a dog is not a legal subject. Animal-welfare laws protect it, but it does not hold rights in private law; it is a legal object (a thing).

P1.3 Natural and juristic persons

Natural person Juristic person
What it is A human being An organisation the law treats as a separate person
How it starts Birth (P2) By law, for example when a company is registered
Examples Lindo, Mrs Khumalo Companies, universities, municipalities, the State
How it acts Personally (if it has capacity) Through people who represent it, such as directors

A company becomes a juristic person on the date and time its registration certificate says it was incorporated (Companies Act 71 of 2008 s 19(1)). Its rights and debts are its own, not its shareholders'.

Back to the shop. Bongi Tech (Pty) Ltd is a juristic person. If Bongani buys the phone for the company with authority, the company is the party to the contract, not Bongani.

P1.4 Status: the four capacities

In short: a person's status is made up of four separate capacities. You can have one without another.

Capacity What it means Who is limited?
Legal capacity Being able to have rights and duties Nobody: every human has it from birth
Capacity to act Being able to do juristic acts, such as contracts and wills Children and some people with mental illness (P6, P8)
Capacity to litigate Being able to sue or be sued in your own name Children usually need help (P6)
Accountability Being able to be held responsible for wrongs (delicts and crimes) Young children (P6)

Why keep them separate? Because real life needs it. A newborn baby can inherit a house (legal capacity) but cannot sign a contract (capacity to act). A person with severe dementia keeps all their rights (legal capacity) but may be unable to understand a contract (capacity to act).

Majority. "A child, whether male or female, becomes a major upon reaching the age of 18 years" (Children's Act s 17). From 18 a person has full capacity to act and to litigate, unless something else limits it.

Back to the shop.

  • Lindo (17) has legal capacity, but only limited capacity to act. A contract he signs alone does not fully bind him (P6).
  • Mrs Khumalo keeps her legal capacity. If her dementia stops her understanding the purchase, she lacks capacity to act for it (P8).
  • The man who took the phone is accountable for theft and for the shop's loss, if he had the mental ability to know it was wrong.

Checkpoint 1. Which capacity is involved? (a) A baby inherits shares. (b) A 16-year-old is sued for damaging a neighbour's car. (c) A 40-year-old signs a lease. (Answer: CP1.)

P1.5 The Constitution and the law of persons

In short: the Constitution has reshaped this area. Three rights matter most:

  • Equality (s 9): no unfair discrimination based on things like sex, marital status, age, disability or birth. This changed old rules, for example about children born outside marriage (P7).
  • Children's rights (s 28): a child's best interests are the most important factor in every matter about the child.
  • Dignity (s 10): this shapes how the law treats people with mental disabilities (P8).

Some courses (for example UNISA's) also ask you to think about ubuntu and transformative constitutionalism: using the Constitution to change unfair old rules.

I. Common mistakes

Students often think… But actually…
A minor has no rights Minors have full legal capacity; only their capacity to act is limited
Status is one single thing Status is made up of four separate capacities
A company's rights belong to its directors The company is a separate person (Companies Act s 19)
Mental illness takes away a person's rights It may limit capacity to act and accountability, never legal capacity

J. Recap in five sentences

  1. The law of persons deals with legal subjects: humans (natural persons) and organisations the law treats as persons (juristic persons).
  2. A legal subject holds rights; a legal object is what the right is about.
  3. Status is made up of four capacities: legal capacity, capacity to act, capacity to litigate and accountability.
  4. Everyone has legal capacity from birth; the other three depend on things like age and mental health.
  5. Majority starts at 18 (Children's Act s 17), and the Constitution's rights to equality, dignity and children's best interests shape the whole field.

Keep reading Law of Persons

The full guide, with every topic, practice questions, flashcards and quizzes, is free in the student portal.

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