PVL1501 - Law Of Persons_Summary_notes.

PVL1501 - Law Of Persons_Summary_notes.Sub-sec of private law Private law = persons “first law” – sphere of law that governs relationships with humans = concepts & institutions – basic to all other branches of the law Legal subject: Centre of legal world – bearer of rights, duties and capacities – persons in the eye of the law (persona iurus) The Law of Persons determines: 1. Which entities are legal subjects 2. When legal personality begins & ends 3. What legal status involves 4. What effect certain factors have on a person’s legal status 2 Diff kinds of legal subjects: Legal personality is bestowed on legal subjects who are determined legal subjects by legal norms of a particular community 1. Natural person: Every human being (have rights, duties & capacities – vary depending on factors) History – slaves were excluded from legal personality – they were legal objects. Monstra (monsters) – seriously malformed children – not legal subjects – were regarded to be not of human decent – could be killed. Modern SA law – ALL beings of human decent = legal subjects! 2. Juristic person: These are certain associations of natural persons to which legal personality is granted. Legal existence is independent from its members / natural persons who create it  Functionaries act on its behalf – juristic person acquires rights, duties and capacities. Entities recognised as juristic persons in our law are associations: a. Incorporated in terms of general enabling legislation (companies / banks / close corporations) b. Especially created & recognised as juristic persons in separate legislation (universities / public corporations / semi-state organisations) c. Comply with following common-law requirements of legal personality of a juristic person: i. Must continue to exist even if members vary ii. Must have / be able to have its own rights / duties / capacities iii. Its objective cannot be for the acquisition of gain The following are not juristic persons: 1. Trust 2. Partnership BEGINNING OF LEGAL PERSONALITY Legal personality begins at birth – foetus not a legal subject. Legal requirements for the beginning of legal personality: 1. Birth must be fully completed – complete separation between mother & foetus’s body – not a requirement for umbilical cord to be severed. 2. Child must live after separation – even if for a short period. 1 of 72 SA law – not yet authoritatively been decided how life must be proved after birth. For criminal procedures where an accused is charged with the killing of a newborn child – child is deemed to have been born alive if child proved to have breathed. The specific section of the Criminal Procedures Act doesn’t purport to set out material requirements for determining lift after birth. Courts thus rely on medical evidence Although medical doctors usually establish whether the child has breathed in order to determine if he / she was born alive, this is not the only test, and any medical evidence that can prove that there was life should be acceptable. “Viability” = Child must have reached a stage of development so it can exist independently of mothers body.  Child must be viable before legal personality is conferred upon it. o Doubtful if requirement was ever part of RD-L / RL – suggested that it’s not requirement for commencement of legal personality in SA law. o Problem with it: vague concept – could lead to impossible problems in evidence. REGISTRATION OF BIRTHS Births & Deaths Registration Act Director General of Home Affairs / person transferred powers of duties to must be notified of birth of every child born alive within 30 days of birth Parents / person in charge of child / person parents or person in charge of child request to do so’s duty. Forename (first name) & surname must be assigned to child. Legitimate child – notice of birth given under surname of either parent / double-barrel. Extra-marital child: Registered under surname of mother  Unless parents jointly require father’s surname to be used. o Father must acknowledge paternity in writing in front of person notice of birth is given & enter his particulars on notice of birth. o Father who wants to acknowledge paternity and enter his particulars after birth is registered – may do so with mother’s consent – if mother withholds consent – father can apply to HC for declaratory order confirming his paternity & dispensing with the mother’s consent.  If child is registered under father’s surname – it can only be changed with father’s written consent – court can grant exemption from consent requirement.  Act doesn’t make provision for extra-marital child registered under a double-barrel surname. Case name: J v Director General, Department of Home Affairs Facts: Woman in same-sex life partnership gave birth to twins conceived by artificial fertilisation (other woman’s ovum & donor sperm). Problem: Wanted twins registered as birth mother “mother” and other woman “parent”. Director Gen. refused to register in this manner – woman applied to court for order directing him to do so. Attacked constitutionality of Sec 5 of Children’s Status Act – children born by artificial fertilisation are legitimate if birth mother married – not if partner in same-sex life partnership. Outcome: Durban HC granted order and CC upheld finding of unconstitutionality. Now children born by artificial fertilisation of woman partner in same-sex life partnership legitimate & registered under surname of either partner / double-barrel surname. If parents marry after birth registered – on application to Dir. Gen. registration will be changed as if were 2 of 72 legally married at time of birth. Application can be brought by either parent / child’s guardian (minor) or child itself (major). In Births & Deaths Registration Act, “Child Born out of Wedlock” excludes a child whose parents married before conception or thereafter before the birth. “Marriage” expanded to include Customary marriages Recognition of Customary Marriages Act recognises customary marriages for all purposes – child born out of such marriages is registered as legitimate. And marriages concluded / solemnised according to tenets of any religion Not yet given full recognition – parents marriage is still invalid, thus cannot have status of legitimate child for all purposes. If a person changes forename / child’s surname changes it can be changed on the birth register to reflect the change. Anyone can apply to Dir. Gen. for authority to assume different surname. INTERESTS OF THE UNBORN CHILD (NASCITURUS) Nasciturus = conceived, but unborn child – aka “foetus” Person’s legal personality begins at birth  the conceived but unborn foetus is not a legal subject (can’t have rights, duties and capacities). Nasciturus Fiction: If situation arises – law protects potential interests of nasciturus by employing the fiction (imaginary, presumption, assumption) that the foetus is regarded as having been born at time of conception whenever it is to her it’s advantage. If appears nasciturus would’ve had certain claims / rights had it been born already – legal position kept in abeyance (kept aside) until born & acquires legal personality / or until certain it will not become a legal subject If becomes legal subject – receives rights kept in abeyance for it. Requirements for NF: 1. Nasciturus must have been conceived at the time benefit would’ve accrued to it. 2. Child must subsequently be born alive – if not born alive – considered as never been conceived. A third person can only benefit from application of NF if benefit is a natural consequence of application of fiction in favour of nasciturus, but fiction cannot be applied if only a third person will benefit from it’s application. Example of situation where application of NF will be to advantage of only third persons: Unborn child would have been entitled to an inheritance had he or she been born when the testator died. If child dies shortly after birth, the NF will not be applied cause only person to benefit from its application would be child’s intestate heirs and not child him/herself. Example of situation where application of NF will be to advantage of both third person and nasciturus: A parent is responsible for maintaining child, provided parent able to do so and child is incapable of supporting itself. If unborn child is born alive and then inherits an estate large enough to support itself, parents not liable for maintenance. This way parents will also benefit from it’s application. NF will be applied since benefit parents get is from application of fiction in favour of nasciturus. NF cannot be used to prejudice nasciturus – must be to unborn child’s advantage!!! INTERESTS TAKEN INTO ACCOUNT NF only had limited use in common law – modern SA law extended from a general principle & protects any conceivable interests! NF already been used in following fields: 1. Patrimonial interests = succession & maintenance 3 of 72 2. Personality interests 1. Patrimonial Interests (inheritance) 1.1 Succession a. Intestate succession If person dies w/o leaving valid will – estate is handed over in terms of law of intestate succession – under these terms – person only inherits if alive at time estate “falls open” (delatio) which takes place moment deceased dies. NF applied to postpone distribution of estates until certain if live person born or not. If born alive – inherits as if already born at time person died. If not born alive – does not obtain rights & not considered when estate is divided. b. Testate succession Person dies and leaves valid will – effect given to provisions of will. If testator’s intention re unborn child should inherit is clear – intention is carried out. If unclear – rules of law of succession are applied. EG where intention is clear: Leave property specifically to A, B & C while D has been conceived – not yet born – D won’t inherit. Only beneficiaries specifically in will inherit. Leaves property to children / grandchildren “born or still to be born” – any children born after will inherit – whether / not conceived at time of death. EG where intention is unclear: Does not appoint beneficiaries by name – but by class. Child in that class conceived at time of death born after death inherits. Case name: Ex parte Boedel Steenkamp Facts: Testator left residue of estate to daughter & her children “who are alive at the time of my death”. At time of death daughter and two of her children D & G were alive – she was expecting another child, P – he was later born alive. Legal question: Can P inherit. Do the words “who are alive at the time of my death” invalidate the presumption that testator wished to benefit children born later? Judgment: P could inherit. Reason for judgment: The words “are alive” don’t rebut the presumption that the testator intended to include the nasciturus. Case shows courts unwillingness to act to the prejudice of nasciturus & on other hand shows a testator who doesn’t want a nasciturus to inherit must express that intention clearly. Testator may also nominate unborn / unconceived in will & may even leave property to persons who will be born generations after him = fideicommissum 4 of 72 EG: A leaves his farm to his son B, provided that farm must transfer to B’s oldest son, C after B’s death and after C’s death, the farm must transfer to C’s oldest son, D. B = fiduciarius (fiduciary) C & D = fideicommissarii (fideicommissaries) This way law protects interest of unborn Fiduciary may not alienate / mortgage farm without consent of HC. If all fideicommissaries are majors and give consent – no problem. If minor and already born alive – court must give / withhold consent in it’s capacity as upper guardian of all minors. Question of whether court may consent in case of unborn fideicommissary: Case name: Ex parte Swanepoel Appellate division (now SCA) ruled that court couldn’t’ give such consent because it is not the upper guardian of children who don’t yet exist. Legislator disapproved & enacted Sec 33(1) of General Law Amendment Act 62 of 1955 empowers court to consent to alienation / mortgage of land in which unborn may obtain and interest, and puts conceived and unconceived persons on equal footing. Court will only give its consent if alienation / mortgage will be to advantage of all beneficiaries, including those still to be born. Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965: Court further has power to remove / modify restrictions on immovable property which have been imposed by a will or another instrument if this is to advantage of unborn / unconceived person. NB!! Above legislation that protects unconceived persons is not based on NF cause NF only applies to persons already conceived. Administration of Estates Act 66 of 1965: If an unborn will, after birth, become entitled to money / movable property subject to somebody else’s usufructuary / fiduciary rights – person must give security to satisfy master of HC for payment of money / delivery of property to child after it’s birth. Money / property won’t be paid / delivered to person in whose favour usufructuary / fiduciary rights operate unless security has been given. Person can only be exempt from these provisions if will expressly allows this. Act further provides that master may consent to subdivision of land on behalf of unborn heir if this is beneficial and fair. Legal proceedings re property in which unborn might have an interest – curator ad litem looks after unborn’s interests. 1.2 Maintenance Case name: Chisholm v East Rand Proprietary Mines Ltd  Court held: Child whose father is killed before her birth due to another person’s delict has a dependant’s action for damages for loss of support against that person.  First SA case where NF applied in respect of delict – authors believe shouldn’t have been extended to law of delict and thus criticise it. Delict = unlawful and culpable deed as a consequence of which another person suffers a loss. Damages are calculated for maintenance by putting child in position would bee in if father was still alive. Child can also claim damages for loss of support if someone kills mother in unlawful culpable (guilty) way while pregnant – provided child born alive despite mother’s death. 5 of 72 Case name: Shieds v Shields Parents of unborn were getting divorced and agreed father would not have to provide maintenance after birth of child. Wanted this in divorce order – court held mother can’t waive unborn’s right to claim maintenance & that the agreement contradicted good faith & legal convictions of the community. It was thus never made an order of the court! Father also can’t waive unborn’s right to claim maintenance from mother after birth. When a pregnant woman divorces father of child – court can provide for child’s maintenance in divorce order – to avoid need for legal proceedings abt maintenance after child is born. This is NOT A TRUE APPLICATION OF NF – rather it’s merely a common sense approach based on expediency (something advantages / convenient) -if it were child would be deemed to have been born at time of her conception and entitled to maintenance from that date – and equity clause of BOR would be breached because NF would be entitled to maintenance for longer periodic than a child whose parents divorce each other on day of her actual birth. Absurd to award maintenance to child from date of conception as unborn child gets all sustenance it needs from mother’s body. 2. Personality Interests When a persons unlawful and culpable act violates the physical integrity of another, the guilty person commits a delict and the victim has the right to claim damages for his / her injuries on the ground of the delict committed against him / her. This principle applies if the victim is an unborn child!! Case name: Pinchin v Santam Insurance Co Ltd Facts: Woman 6m pregnant involved in car accident – thus mother suffered substantial loss of amniotic fluid. Baby born with cerebral palsy – therefore never be able to take care of himself. Driver of other vehicle admitted to being negligent. Father claimed special damages on behalf of child (for infringement on child’s personality rights) and damages for patrimonial loss (medical bills he was liable for) in his own name. Medical witness for plaintiff argued that the loss of the amniotic fluid caused mother’s uterus to contract and so placenta contracted and thus child suffered from a loss of oxygen (anoxia) – a well known cause for cerebral palsy. Medical examiner for defendant argued that foetus could be deprived of 2/3 of it’s blood supply and not suffer from anoxia & that damage to the placenta couldn’t have been so severe that 2/3 of blood supply to foetus was shut off for such a long period to cause anoxia. Legal question: Does a person have an action i.r.o. injury inflicted on him while he was still in his mother’s womb? Judgment: Child did have an action to recover for pre-natal injuries. However, it was not proved that the brain damage had been caused by the accident & consequently absolution from the instance ordered. Reason for judgment: NF was well known in RL, but the digest texts which discuss it don’t limit it to a specific field of law the rights of the foetus which can be protected, nor do CL writers like Voet, De Groot, Van der Keessel & Shorer limit it to a specific area. 6 of 72 After a thorough analysis of Anglo-American L and European systems – could find no reason why NF should not be extended to law of delict. Fact that such a claim is difficult to prove isn’t ground for denying a plaintiff his / her claim. However, it was not proved that the brain damage had been caused by the accident & consequently absolution from the instance ordered. Several authors criticise the extension of the NF to claims for pre-natal injuries. Now resolved as a result of Road Accident Fund V M obo M. Case name: Road Accident Fund v M obo M – also reported as “Road Accident Fund v Mtati” Facts: M, father and natural guardian of Z claimed R1.3 m for Road Accident Fund (RAF). He alleged that: A collision took place between a motor vehicle driven by another and his wife (a pedestrian) who sustained serious bodily injuries and as such Z was born severely mentally retarded as a result of the injuries her mother sustained. Claim was instituted in local division of HC. RAF raised special plea against claim on 2 bases: 1. At time of collision, child was a foetus in utero and not a “person” entitled to compensation 2. A foetus in uterus is not in law regarded as a person and in the circumstances the insured driver cannot be said to have owed a duty of care to Z. Court a quo accepted decision of Pinchin case & dismissed special plea. Case is an appeal against dismissal. Judgement: The special plea was correctly dismissed by court a quo & dismissed appeal with costs. Reason for judgement: It would be intolerable if our law didn’t grant an action for pre-natal injuries. The minor’s claim is based on the damage suffered as a living person, not as a foetus. Fact that the wrongful act that caused the damage happened before the child’s birth is irrelevant. On the ordinary principles of the law of delict, unlawfulness & damages must not be fused – but that each is a separate element for delictual liability. Such a child (i.e. an unborn child / pregnant woman) falls within the area of potential danger which the driver is required to foresee and take reasonable care to avoid. Note: Pinchin case was decided in Witwatersrand Local Division of then the SC, while this case was decided in SCA. Therefore, all divisions of HC are bound by this decision. Now onwards, all future claims for pre-natal injuries will have to be based on the ordinary principles of the law of delict and not on the NF. NF will still apply to other areas of the law. GUARDIANSHIP & CUSTODY = 2 components of parental authority Guardianship capacity parent has to administer child’s estate on child’s behalf & assist child in performance of juristic acts Custody controlling child’s daily life Parental authority doesn’t arise until child is actually born  pregnant woman can’t have parental authority over part of her own body  father can’t have parental authority over part of mother’s body & if can’t even have power to stop mother from having an abortion – can’t can parental authority over foetus If pregnant woman get’s divorced – court may include an order for guardianship & custody in the divorce order In this case – rule is based on expediency & not NF!! 7 of 72 Friedman v Glicksman Mother can’t enter into contract on behalf of unborn cause legal personality only begins at birth & an agent can’t into a contract on behalf of non-existent principal. Application of NF to above would be incorrect because it would require conferring parental authority on parent before child’s birth. In case of an agency – if unborn considered already born at time of conception – would still be without capacity to act & thus could not give authority for parent to act as agent – parent would have to authorise agent on child’s behalf & doesn’t have parental authority to do this! If parent wanted to negotiate a benefit for unborn – would have to use a contract for the benefit of a third party. Parent (A) enters into contract with (B) in terms of which B undertakes to keep open an offer to contract / make an offer to unborn (C) after birth. C is thus not a party to the contract & does not matter that C doesn’t exist yet. C is benefited – given opportunity to enter into a contract with B. After C’s birth, A now has parental authority to accept / decline B’s offer on C’s behalf. When C accepts B’s offer – contract exists between B & C. EG where above is used: Future spouses can agree in antenuptial contract that children who might be born of their marriage will be entitled to specific property when they’re born. NOTE: Sec 18 of Child Care Act 38 of 2005 (effective 1 Jul 07) 1. Replaces common-l concept of “parental authority” with “parental responsibilities and rights” 2. Replaces concept “custody” with “care”. TERMINATION OF PREGNANCY NF not used because aborted foetus will never be born alive (one of the requirements for application of NF). Circumstances in which pregnancy can be terminated: Termination of Pregnancy Act 92 of 1996 legalised abortion & allows a pregnancy to be terminated upon request of a pregnant woman during the first 12 weeks of the gestation (conception) period. From 13th – 20th week: If medical practitioner after consulting with pregnant woman is of opinion that: a. Continued pregnancy poses risk of injury to woman’s physical / mental health b. There’s a substantial risk that that foetus would suffer severe physical / mental abnormality c. Rape / incest d. Continued pregnancy would significantly affect woman’s social / economical circumstances After 20th week If a medical practitioner, after consulting with another medical practitioner / registered mid-wife is of the opinion that continued pregnancy would: a. endanger woman’s life b. result in severe malformation of the foetus c. pose risk of injury to the foetus Before 12-week gestation period – abortion can be performed by a medical practitioner / a registered midwife. After 12th week – ONLY a medical practitioner can perform the abortion. Consent: Informed consent of pregnant woman is required – unless she’s incapable of giving such consent. Minor: A medical practitioner / registered midwife must advise minor to consult with parents / guardians / family members / friends before term of preg, but term can’t be denied if minor prefers not to do so. If pregnant woman is: Mentally disabled (completely incapable of understanding & appreciating nature / consequences) 8 of 72 or State of continuous unconsciousness (no reasonable prospect of regaining consciousness in time to request & consent) and gestation period less than 21 weeks and grounds for mentally able, conscious woman within 13 – 20 weeks must be present and two medical practitioners / one medical practitioner and a registered midwife (completed prescribed training course) must consent her pregnancy may be terminated if guardian / spouse consents (if can’t be found – then curator personae). NOTE: Certain circumstances – mentally disabled / cont unconscious woman’s preg can be terminated without consent: Prior to 21st week of gestation period: If 2 medical practitioners / medical practitioner & registered midwife (completed prescribed training course) are of opinion that: (a) continued preg would pose risk of injury to woman’s physical / mental health (b) substantial risk foetus would suffer from severe physical / mental abnormality. From 21st week of gestation period: If 2 medical practitioners / medical practitioner & registered midwife (completed prescribed training course) are of opinion that continued preg would: (a) endanger woman’s life (b) result in severe malformation of foetus (c) pose risk of injury to foetus Refer = Christian Lawyers’ Association v National Minister of Health Case name: Christian Lawyers’ Association v National Minister of Health Facts: The plaintiff argued that certain sections of the Choice on Termination of Pregnancy Act 92 of 1996 were unconstitutional because they permitted a woman under the age of 18 years to choose to have her pregnancy terminated without parental consent or control Legal Q: Whether or not a minor is in a position to make an informed decision about whether or not to have an abortion which serves her best interests without the assistance and/or guidance of her parents, guardians or counsellor. Judgement: A minor could have her pregnancy terminated as long as she was capable of giving her informed consent and indeed did so. Reasons for Judgement: The legislature had not left the termination of a minor’s pregnancy totally unregulated. Its foundation was the concept “informed consent”. THE FOETUS’ RIGHT TO LIFE & OTHER CONSITUTIONAL ISSUES SURROUNDING TERMINATION OF PREGNANCY Before the introduction of a BOR into our law… Our courts held that a foetus isn’t a legal subject & doesn’t have a right to life that can be enforced on it’s behalf Christian League of SA v Rall Only upon birth foetus becomes a legal subject – cannot have rights that can be enforced on its behalf before it is born alive Van Heerden v Joubert 9 of 72 For purposes of Inquest Act – “person” excludes unborn – serious problems might arise with regard to the law relating to abortion / murder / culpable homicide if legal personality was to be extended to a foetus. After the enactment of BOR… Termination of Pregnancy Act was challenged on constitutional grounds: Case name: Christian Lawyers Association of SA v The Minister of Health Facts: Plaintiffs argued that human life starts at conception & that the Choice on Termination of Pregnancy Act contravenes Sec 11 of the Constitution of Republic of South Africa 108 of 1996, which guarantees right to life. Plaintiff’s sought a declaratory order striking down the Act in it’s entirety. Defendants excepted to Plaintiffs particulars of claim on grounds that it didn’t disclose a cause of action because Sec 11 doesn’t confer any right on a foetus & doesn’t prevent term of preg in circumstances & manner foreseen by the Act & that Constitution protected woman’s right to choose to have her preg term in the circumstances and manner contemplated by the Act. Legal Q: Does Choice on Term of Preg Act contravene Sec 11 of Constitution? Judgment: Choice on Term of Preg Act doesn’t contravene Sec 11 of Const & therefore isn’t unconstitutional. Reason 4 judgment: No provision of Const bestows legal personality / protection on the foetus. Requirement for Nasciturus rule – foetus to be born alive – no provision of Const to protect foetus pending fulfilment of this requirement. Also, Const doesn’t qualify a woman’s right to make decisions about reproduction & her right to security in and control over her body in order to protect the foetus. NOTE!! It is considered that outcome of case is correct  Law grants rights & obligations only to legal subjects o Since there’s no clear provision elevating unborn’s status to that of legal subject – the Const can’t be said to have conferred any rights on unborn children. An allegation that human life begins at conception is not sufficient basis to argue that a foetus has a right to life, because “life” is not the determinant in respect of legal personality {IE: determinant is – is unborn child a legal subject – answer is no!} There’s no conflict btw unborns const rights & those of preg woman – unborn doesn’t have any rights prior to birth. Any const challenge by father of the provisions in Choice on Term of Preg Act (which grants woman sole right to decide on whether / not preg should be terminated by requiring only her consent to term) would fail because: Sec 12(2)(b) of Const: Guarantees every person the right to security in and control over his / her body – including person’s reproductive powers – therefore – woman has final say re abortion From point of view of dignity, privacy & gender equality – woman has final say re reproduction. STERILISATION Sterilisation Act 44 of 1998: Permits voluntary sterilisation if over 18 years of age & capable of consenting (whether / not person married) Requirements (person over 18 years): 10 of 72 1. Free & voluntary consent without any inducement (enticement) 2. Before consenting – proposed plan of procedure & consequences, risks & reversible / irreversible nature was clearly explained & adequately described and person was advised that consent could be withdrawn anytime before sterilisation takes place 3. If 1 & 2 are done – consent is given on prescribed form. Under 18 years – only if not being sterilised jeopardised her life / seriously impaired physical health. Only performed with consent of parent / spouse / guardian / curator Desirability of sterilisation must be evaluated by a panel of a psychiatrist (or med practitioner if no psychiatrist available), psychologist / social work AND nurse. Sufferer of severe mental disability & is incapable of consenting / incompetent to consent May only be performed if incapable of: Making own decision abt contraception / sterilisation; Developing mentally to sufficient degree to make informed decision abt contraception & sterilisation; Fulfilling parental responsibilities associated with giving birth Only performed with consent of parent / spouse / guardian / curator & if panel of a psychiatrist (or med practitioner if no psychiatrist available), psychologist / social work AND nurse concur. NOTE: When panel considers if sterilisation may be performed – ALL relevant facts taken into account  IE: Has person reached 18 yrs of age & is there no other safe & effective method of contraception? Method holding smallest risk to patient’s health is always used when performing a sterilisation! IS THE NASCITURUS A LEGAL SUBJECT? Nasciturus Fiction Nasciturus Rule Doesn’t protect rights of nasciturus – but rights of child who will be born later Interests are kept open until born. Legal personality begins at birth Deems birth to have taken place at time conceived when to advantage of nasciturus if already was born at time. Unborn child not regarded as legal subject If advantage of nasciturus has she already been born – all rights conferred upon people are also conferred upon foetus – foetus is a legal subject from date of conception whenever its interests are at issue. Legal personality beings (i.e. when to its advantage) at conception. Unborn child is regarded as a legal subject (when its interests are at issue) Writers who support fiction? Writers who support rule? Cronje & Heaton and Jordaan & Davel Van der Merwe and Van der Vyver & Joubert Thus, per the NF above, nasciturus is not a legal subject! THE END OF LEGAL PERSONALITY Legal personality terminated by death. (Dead people don’t have rights / obligations) Law protects deceased body & regulates its disposal – not because deceased has rights, but because of community interests. Deceased former assets also protected – not in its interests – but in interests of its creditors / heirs. Criteria in determining a person legally dead: In our law – not clear – courts rely exclusively on medical evidence to determine if someone has died and the moment of death. In med field – death is seen as a process sometimes extending over a period of time & involves the cessation (stopping) of natural heart, lung & brain activity. 11 of 72 Death is a juristic fact having legal consequences – medical expert provides evidence about facts – decision re death in so far as it has any juristic significance if made by the jurist.