Birth and Legal Personality

Question 1

What defines becoming a legal person?

Answer 1

You become a legal person when you are born alive.

This is supported by the case law van Heerden v Joubert, citing Voet and the Digest.

Question 2

What are the requirements for ‘live birth’ in terms of common law?

Answer 2

1. Complete separation between mother and baby.
2. Baby must have lived after separation.
3. Viability is probably NOT necessary.

Viability means that the baby can survive after birth, indicating that vital organs like the heart and lungs are mature enough.

Question 3

What is the traditional evidence for determining ‘live’ birth?

Answer 3

Evidence that the baby breathed.

The Registration of Births and Deaths Act states that any sign of life qualifies for ‘live birth’.

Question 4

What does Section 239 of the Criminal Procedure Act deal with?

Answer 4

Infanticide.

Infanticide is defined as the murder of a newborn baby.

Question 5

What is the legal test for infanticide under the Criminal Procedure Act?

Answer 5

Did the baby breathe?

This test is narrower than the common law test and does not require complete separation from the mother.

Question 6

What are the significance and implications of being ‘a person’ in the eyes of the law?

Answer 6

You can have rights and duties.

Boberg defines a person as a being or entity capable of having rights and duties.

Question 7

What are the categories of rights associated with legal personality?

Answer 7

1. Real rights
2. Personal rights
3. Personality rights
4. Constitutional human rights

Only PERSONS can have these rights.

Question 8

What governs the rights and duties between persons?

Answer 8

Private law.

Private law defines and describes the rights and duties and deals with their origin, content, and exercise.

Question 9

What are the types of legal rights classified according to the object of the right?

Answer 9

1. Real rights (physical things)
2. Personality rights (aspects of personality)
3. Personal rights (performances)

Examples include a house for real rights, reputation for personality rights, and baby-sitting for personal rights.

Question 10

What is legal capacity?

Answer 10

Your ability to do things that the law takes notice of.

Not all legal persons have the same legal capacity.

Question 11

What are the two main types of legal capacity?

Answer 11

1. Passive legal capacity
2. Active legal capacity

Everyone has passive legal capacity, while active legal capacity depends on legal status.

Question 12

What are the main types of active legal capacity?

Answer 12

1. Capacity to commit delicts and crimes
2. Capacity to litigate
3. Capacity to perform juristic acts

Juristic acts can include acquiring or alienating property, concluding binding contracts, consenting to medical treatment, and getting married.

Question 13

What statuses affect legal capacity in common law?

Answer 13

1. Age (minority)
2. Mental illness or disability
3. Marriage in community of property

Infants are defined as minors under the age of seven, while minors seven and older have different capacities.

Question 14

What is a significant consideration in customary law regarding legal capacity?

Answer 14

Your position in the family.

Only the household head generally has full legal capacity, affecting liability and property ownership.

Question 15

What arguments does Himonga present regarding legal capacity?

Answer 15

The Children’s Act confers full majority and capacity at 18, and customary law restrictions on capacity have been abolished by recent legislation.

This includes the Matrimonial Property Act which abolishes customary law on capacity for married people.