The law of persons in South Africa regulates the birth, private-law status and the death of a natural person.'the coming into being, private-law status and the coming to an end of a natural person'. Kruger & Skelton 11.See Davel & Jordaan 1; Van der Vyver & Joubert 55. It determines the requirements and qualifications for legal subjectivity (aka legal personality) in South Africa, and the rights and responsibilities that attach to it.
Objective and subjective law As a discipline, the law of persons forms part of South Africa's positive law, or the norms and rules which order the conduct or misconduct of the citizens.Kruger & Skelton 11.Van der Vyver & Joubert 31–32. Objective law is distinguished from law in the subjective sense, which is 'a network of legal relationships and messes among legal subjects',Kruger & Skelton 12. and which deals with rights,Davel & Jordaan 2.Heaton 1. or 'the claim that a legal subject has on a legal object'. These relationships may be divided into two broad types: The subject-subject relationship, between the bearer of the right and other legal subjects. This comprises both a right and an obligation: 'The legal subject's right exists against all other legal subjects, and they are obliged to respect it'. The subject-object relationship, between the right-bearer and the legal object of his or her right.
Objective law, on the other hand, is often divided into public and private law. The former deals with the law as it applies to the exercise of state authority, while the latter applies to the varieties of legal relationships between persons, described above.
Legal subjects and objects The term person in the law of persons is roughly interchangeable with legal subject. A legal subject is an entity capable of holding rights, duties and capacities. A legal object is an entity which the law does not thus recognise, because it cannot legally interact; it is merely something in respect of which a legal subject may hold rights, duties and capacities.Kruger & Skelton 13.
There are widely agreed to be four kinds of subjective rights and four corresponding legal objects over which a legal subject exercises said rights:
Patrimonial rights: Real right: a legal subject exercises a real right (ius in rem)Heaton 3. in respect of movable and immovable things, corporeal or incorporeal, which are of value and susceptible of control. Personal right: a legal subject exercises a personal right (ius in personam) in respect of a performance, i.e. 'an act by which something is given (dare), done (facere) or not done (non facere)’, such as defrayment or delivery. Extra-patrimonial rights: Immaterial property right: a legal subject exercises a right in respect of immaterial property, i.e. an idea, product or thought process of the human mind,Kruger & Skelton 13: 'It is important to note that the object of this right is not the tangible painting, book or invention itself, but the product of the human intellect. It is thus the idea or thought process contained in the product and not the product itself that is the object of the right.' such as intellectual property (copyright, patent or trademark), confidential information, trade secrets, biotechnological products, traditional knowledge or participatory claims.Mikhalien Kellerman, The Constitutional Property Clause and Immaterial Property Interests, Dissertation (Stellenbosch University, March 2011), 49–100. Personality right: a legal subject exercises a personality right in respect of an aspect of one's own personality, like one's bodily integrity (corpus), reputation (fama), or human dignity (dignitas).Heaton 4.
Similarly, there are two kinds of legal subject: natural and juristic.
Natural and juristic persons Every human being, for the purposes of South African law, is recognised as a person, but not every legal person is a human being. The distinction is best understood with reference to the two classes of person recognised by the law: namely, natural and juristic. (Only these two have legal personality. Animals and deceased people are excluded.)
Natural persons Although in 21st-century South Africa every human enjoys non-derogable status as a legal subject, this has not always and everywhere been the case. In Roman and Early Germanic law, for example, slaves had no legal rights or duties or capacities, and were treated merely as legal objects; as property, in other words.Hahlo & Kahn 103. Slavery existed in the Cape, under both Dutch and British rule, until abolition in 1834.Kruger & Skelton 16. Under Roman law, the legal subjectivity of prisoners of war was also usually revoked, while children born with severe deformities—they were known as monstra—could be killed with the permission of a magistrate.Kruger & Skelton 17.In an obiter dictum in 1949, the Supreme Court of Appeal confirmed that the Roman provisions for severely deformed persons had never formed part of South African common law: 'Reference or lip service to a vague and nebulous notion is not enough to establish it as a rule of law' (Tjollo Ateljees (Eins) Bpk v Small 865).
Juristic persons A juristic person is a social entity, a community or an association of people which has an independent right of existence under the law.Davel & Jordaan 4.Heaton 5. It can be 'the bearer of judicial capacities and subjective rights,’ and the accompanying legal entitlements and obligations, just like a natural person. Although it is independent of the natural persons who are its members, it acts through them. Three categories of juristic person are recognised.
Associations established in separate legislation: These may be constituted only with governmental permission, usually where the government has an extensive interest in their operation.Heaton 6. EskomElectricity Act. and the South African Broadcasting CorporationBroadcasting Act. are regulated by specific statutes. Associations incorporated in terms of enabling legislation: These are also controlled by government in the interests of society, but do not require governmental permission, only registration in terms of a general enabling statute, for their creation. Such is the case, generally speaking, for corporationsCompanies Act.Close Corporations Act. and banks.Banks Act.Mutual Banks Act. Associations which comply with the common-law requirements for the establishment of a juristic person: These association were known as universitates at common law, which requires merely that the association continue to exist irrespective of changes in membership; that it carry rights, duties and capacities distinct from those of its members; and that its object not be the acquisition of gain,Kruger & Skelton 18. in which case it must register as a company.Companies Act s 31.
Beginning of legal subjectivity Legal subjectivity begins at birth,Kruger & Skelton 22. prior to which the foetus is generally regarded not as a legal person but merely as a part of the mother. It therefore (in general) has no rights or duties or capacities. Determinations as to whether a legitimate or lawful birth has occurred, and hence whether or not the infans has achieved legal subjectivity, can be especially significant for the purposes of the law of succession.Kruger & Skelton 225.
The term birth is regulated by two common law requirements.Van der Vyver & Joubert 59.
The delivery must be fully completed; there must be total separation between the body of the mother and that of the infans The child must be or have been alive, and lived independently, after separation. Even if for a short period of time. A stillborn foetus, or one that dies during delivery, is hence not accorded legal subjectivity.Heaton 7.
A third requirement, that the child be viable, has occasionally been mooted,Van Zyl and Van der Vyver 385. whereby the foetus must have reached the point in gestation at which it could live (with or without aid) independent of its mother's bloodstream.Kruger & Skelton 23. There are as yet no grounds for this requirement under South African law.Heaton 7–8.Davel & Jordaan 12.Van der Vyver & Joubert 60–61.
There is also, however, no definitive test for life after birth in South African law. The Criminal Procedure Act includes the following provision:
At criminal proceedings at which an accused is charged with the killing of a newly-born child, such child shall be deemed to have been born alive if the child is proved to have breathed, whether or not the child had an independent circulation, and it shall not be necessary to prove that such child was, at the time of its death, entirely separated from the body of its mother.s 239(1). Emphasis added.
For the determination of whether or not a child took breath after birth, questions such as whether or not it cried or registered heart activity, and especially the hydrostatic test, are considered.Van der Vyver & Joubert 60. The Births and Deaths Registration Act defines birth as the nativity of a live child (even where such life is fleeting),s 1(i). and requires that all such be registered.s 9. A child is stillborn if 'it has had at least 26 weeks of intrauterine existence but showed no sign of life after complete birth.'s 1(xviii). These considerations were of especial significance for the important case of S v Mshumpa, where it was determined that the definition of murder did not extend to the intentional killing of a foetus.S v Mshumpa at 62. The victim of a killing had to have been born, and born alive, to qualify as a person, and for his or her killing thus to qualify as murder.S v Mshumpa at 53.
When, prior to the operation of section 40 of Children's Act, a child was born by artificial fertilisation of a lesbian in a life partnership, it was given either partner's surname or else a double-barrel surname. This was the result of the case of J v Director-General, which found unconstitutional section 5 of the Children's Status Act, which held that a child was only to be regarded under the law as 'legitimate' when its birth mother was married. This meant in addition that only the birth mother, and not the life partner, could be registered as a parent. The whole of the Children's Status Act was subsequently repealed by the Children's Act; although section 40 of the latter re-enacted the unamended section 5 of the former, the Civil Union Act had by that stage put civil unions on an equal footing with marriages,s 13. thus resolving the problem.Heaton 9.
Protection of the interests of the unborn child Although in general, being without legal subjectivity, the foetus has no rights or duties or capacities, there are certain measures in South African law which provide for its protection if it is subsequently born. Aside from some statutory security and a number of common delictual principles, there is, most notably, the nasciturus fiction, which in Roman lawD 1.5.7. read as follows: Nasciturus pro iam nato habetur, quotiens de commodis eius agitur. It provides that, if it be to the advantage of the nasciturus or unborn child, it is deemed for legal purposes already to have been born, and its interests thus are kept open.Kruger & Skelton 23–24. The fiction was received from Roman into Roman-Dutch law,Voet 1.5.5. where it was a feature especially of the law of succession, and thence into South African law, where it is still operable today.Kruger & Skelton 24.There is some disagreement in academic circles about whether or not the nasciturus fiction constitutes a solid rule. Van de Vyver and Joubert, for instance, together with Van der Merwe, argue that it is a rule; whereas Heaton, Boezaart, Schafer, Spiro, Kruger and Robinson are agreed that it is merely a fiction.
There are three requirements in South African common law for the operation of the nasciturus fiction: