LOPF5111 Learn Module Outline PDF

IIE Learn Module Outline LAPE5111p/LOPF5111/LOPF5131/LOPF5121
Law of Persons
LOPF5111/LOPF5131/LAPE5111p/LOPF5121
MODULE OUTLINE 2022
(First Edition: 2018)
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© The Independent Institute of Education (Pty) Ltd 2022 Page 1 of 44

Table of Contents
Introduction........................................................................................................................................... 3
Using this Module Outline ................................................................................................................... 4
This Module on Learn........................................................................................................................... 5
Icons Used in this Document and on Learn ....................................................................................... 6
Module Resources ................................................................................................................................ 7
Module Purpose.................................................................................................................................. 10
Module Outcomes .............................................................................................................................. 10
Assessments ........................................................................................................................................ 11
Module Pacer ...................................................................................................................................... 13
Glossary of Key Terms for this Module ............................................................................................ 43

Introduction
The purpose of this module is to introduce students to the main legal principles encountered in
the Law of Persons. The module aims to demonstrate why these principles are important and
how they can be applied when solving legal problems. It is intended that by the end of the
module, students will be equipped with the necessary knowledge, skills and competencies to
identify problems and formulate solutions to the various factual and legal issues relating to the
Law of Persons. Another important benefit of this module is that students will be shown,
through the study of relevant case law, the impact that the Constitution of the Republic of South
Africa, 1996 has on this area of private law.

Using this Module Outline

This module outline has been developed to support your learning. Please note that the
content of this module is on Learn as well as in the prescribed material. You will not succeed
in this module if you focus on this document alone.
• This document does not reflect all the content on Learn, the links to difference resources,
nor the specific instructions for the group and individual activities.
• Your lecturer will decide when activities are available/open for submission and when these
submissions or contributions are due. Ensure that you take note of announcements made
during lectures and/or posted within Learn in this regard.

This Module on Learn

Learn is an online space, designed to support and maximise your learning in an active manner.
Its main purpose is to guide and pace you through the module. In addition to the information
provided in this document, you will find the following when you access Learn:
• A list of prescribed material;

• A variety of additional online resources (articles, videos, audio, interactive graphics, etc.)
in each learning unit that will further help to explain theoretical concepts;
• Critical questions to guide you through the module’s objectives;
• Collaborative and individual activities (all of which are gradable) with time-on-task
estimates to assist you in managing your time around these;
• Revision questions, or references to revision questions, after each learning unit.
Kindly note:
• Unless you are completing this as a distance module, Learn does not replace your
contact time with your lecturers and/or tutors.
• LAPE5111 is a Learn module, and as such, you are required to engage extensively with
the content on the Learn platform. Effective use of this tool will provide you with
opportunities to discuss, debate, and consolidate your understanding of the content
presented in this module.
• You are expected to work through the learning units on Learn in your own time –
especially before class. Any contact sessions will therefore be used to raise and address
any questions or interesting points with your lecturer, and not to cover every aspect
of this module.
• Your lecturer will communicate submission dates for specific activities in class and/or
on Learn.

Icons Used in this Document and on Learn

The following icons are used in all your modules on Learn:
Icon Description
A list of what you should be able to do after working through the learning
unit.
Specific references to sections in the prescribed work.
Questions to help you recognise or think about theoretical concepts to be

covered.
Sections where you get to grapple with the content/ theory. This is mainly
presented in the form of questions which focus your attention and are aimed
at helping you to understand the content better. You will be presented with
online resources to work through (in addition to the textbook or manual
references) and find some of the answers to the questions posed.
Opportunities to make connections between different chunks of theory in

the module or to real life.
Real life or world of work information or examples of application of theory,

using online resources for self-exploration.
REMEMBER:
You need to log onto Learn to:

• Access online resources such as articles, interactive graphics, explanations, video clips,
etc. which will assist you in mastering the content; and
• View instructions and submit or post your contributions to individual or group activities
which are managed and tracked on Learn.

Module Resources
Prescribed Barratt A, Domingo W, Mahler-Coetzee JD, Amien W, Denson R, Olivier
Material (PM) M, Osman F, Schoeman H and Singh PP. 2017. Law of Persons and the
for this Module Family. Second edition. Pearson South Africa (Pty) Ltd, Cape Town
Recommended Please note that a number of additional resources and links to resources
Readings, are provided throughout this module on the Learn platform. You are
Digital, and Web encouraged to engage with these as they will assist you in mastering the
Resources various objectives of this module. They may also be useful resources for
completing any assignments. You will not, however, be assessed under
examination conditions on any additional or recommended reading
material.
Heaton, J. 2012. The South African Law of Persons. 4th Edition. Durban,
LexisNexis ISBN: 9780409052657
• Heaton, J. 2012. Casebook on the South African Law of Persons. 4th
Edition. Durban, LexisNexis ISBN: 9780409052718
• Kruger, H and Skelton, A (eds). 2010. The Law of Persons in South
Africa. Cape Town: OUP
Badul, C.J. and Strode, A. ‘LM and Others v Government of the
Republic of Namibia: The first sub-Saharan African case dealing
with Coerced Sterilisations of HIV-Positive Women – Quo Vadis?
(2013) 13 African Human Rights Law Journal 214-228.
• Beyer, C. ‘Autonomy of the Child in the South African Context’
(2014) 4(3) Journal of Community Medicine and Health Education 1-
5.
• Le Roux-Kemp, A. ‘A question of life and death’ (2013) 46(1)
Comparative and International Law Journal of Southern Africa 74-
89.
• Pickles, C. ‘Termination-of-Pregnancy Rights and Foetal Interests in
Continued Existence in South Africa: The Choice on Termination of
Pregnancy Act 92 of 1996’ (2012) 15 (5) Potchefstroom Electronic
Law Journal 403-434.
• Satyapal, K.S. ‘The Treatment of Human Remains’ (2012) 5(1) South
African Journal of Bioethics and the Law 55-59.
• Wood-Bodley, M.C. ‘DID YOU SAY “ASININE” MILORD? – Bekker v
Naude en andere 2003 5 SA 173 SCA at
http://researchspace.ukzn.ac.za/xmlui/bitstream/handle/10413/90
87/Wood-Bodley_Michael_C_2004.pdf?sequence=1

List of prescribed cases:

• Eilon v Eilon 1965 (1) SA 703 (A)
• Ex Parte Boedel Steenkamp 1962 (3) SA 954 (O)
• Ex Parte Govender 1993 (3) SA 721 (D)
• Ex Parte Graham 1963 (4) SA 145 (D)
• Lange v Lange 1945 AD 332
• Louw v MJ & H Trust (Pty) Ltd 1975 (4) SA 268 (T)
• Pinchin v Santam Insurance Co Ltd 1963 (2) SA 254 (W)
• Re Beaglehole 1908 TS 49
• Road Accident Fund v Mtati 2005 (6) SA 215 (SCA)
• Sesing v Minister of Police 1978 (4) SA 742 (W)
• Soller NO v G and Another 2003 (5) SA 430 (W) paras 14-19
Legislation covered in this module:

• Administration of Estates Act 66 of 1965
• Births and Deaths Registration Act 51 of 1992
• Children’s Act 38 of 2005
• Choice on Termination of Pregnancy Act 92 of 1996
• Civil Union Act 17 of 2006
• Companies Act 71 of 2008
• Constitution of the Republic of South Africa 1996
• Dissolution of Marriages on Presumption of Death Act 23 of 1979
• Domicile Act 3 of 1992
• General Law Amendment Act 62 of 1955
• Human Tissue Act 65 of 1983
• Immovable Property (Removal or Modification of Restrictions) Act
94 of 1965
• Inquests Act 58 of 1959
• Intestate Succession Act 81 of 1987
• Law of Succession Amendment Act 43 of 1992
• Marriage Act 25 of 1961
• Matrimonial Property Act 88 of 1984
• Mental Health Care Act 17 of 2002
• National Health Act 61 of 2003
• Promotion of Equality and Prevention of Unfair Discrimination Act 4
of 2000
• Recognition of Customary Marriages Act 120 of 1998
• Sterilisation Act 44 of 1998
• Wills Act 7 of 1953

Module You will find an overview of this module on Learn under the Module
Overview Information link in the Course Menu.
Assessments Find more information on this module’s assessments in this document
and on the Student Portal.

Module Purpose
The purpose of this module is to provide students with graduate-level applied competencies
and legal knowledge necessary in the field of Law of Persons, with specific insight into the
content, scope and development of the Law of Persons in South Africa. Students should be
able to analyse and solve common problems relating to the Law of Persons.
Module Outcomes
Demonstrate knowledge and understanding of the language, terminology,
MO1
concepts and principles of the Law of Persons.
Apply core concepts used in the Law of Persons to problems commonly
MO2
encountered in legal practice.
Evaluate the role and application of the elements of the Law of Persons in the
MO3
context of the various sub-disciplines comprising the South African legal system.

Assessments
Integrated Curriculum Engagement (ICE)
Minimum number of ICE activities to complete 4
Weighting towards the final module mark 10%
Formative Test 1 Test 2

Weighting 25% 30%
Duration 1hour 1 hour
Total marks 60 60
Open/closed book
Resources required n/a n/a
Learning Units covered 1-3 4 -6
Summative Examination
Weighting 35
Duration 2 Hours
Total marks 120
Open/closed book Open book
Resources required n/a
Learning Units covered All

Assessment Preparation Guidelines

Format of the Assessment Preparation Hints
Test 1 This test will challenge you to recall Your primary focus will be on the
and apply the legal principles textbook and your notes made
covered in Learning Units 1-3. It is a during lectures. In addition, the
closed book test that will consist of Learn Guide and the internet will
theory and practical questions. provide information in many
instances.
Test 2 This test will challenge you to recall Your primary focus will be on the
and apply the legal principles textbook and your notes made
covered in Learning Units 4 -6. It is during lectures. In addition, the
a closed book test that will consist Learn Guide and the internet will
of theory and practical questions. provide information in many
instances.
Exams The exam will challenge you to Your primary focus will be on the
recall and apply the legal principles textbook and your notes made
covered in ALL of the Learning during lectures. In addition, the
Units. It is a closed book exam that Learn Guide and the internet will
will consist of theory and practical provide information in many
questions. instances.

Module Pacer
Code Programme Contact Sessions Credits
LAPE5111p HLS1p 28 lecture plus 2 12
learn hours
LOPF5111 BLAW 1 48 lecture plus 5 15
LOPF5121 BALW316 learn hours
LOPF5131 BLAW 1
Learning Unit 1 Defining Words and Concepts Used in the Law of Persons
Overview:
Words and concepts are the tools of the law. However, we are not free to decide what the
words and concepts mean as they have very precise meanings in the legal environment.
Lawyers are deeply concerned with definitions of words and concepts – they want to know
precisely what the words mean – as whole court cases may hinge on the particular meaning
of a word, a phrase or a particular concept.
In this learning unit, we will look at defining and explaining particular concepts used in Private
Law and, in particular, the Law of Persons. It will discuss the most important consequence of
being recognised as a “person” from a legal perspective, and provide a detailed explanation
of the concepts of rights and duties.
If you are a contact student, you will likely spend 4 sessions on this learning unit.
If you are a part-time student, you will likely spend 3 sessions on this learning unit.
Please work through Themes 1, 2, 3, 4 and 5 on Learn, together with the relevant sections of
your prescribed source/s. To ensure that you are working towards mastering the objectives
for this learning unit, please also ensure that you complete the following activities on Learn:
Activity Estimated
Time on Task
1.1.1 Legal persons and legal personality 30 minutes
1.2.1 Rights and duties of legal persons 30 minutes
1.3.1 The Constitution 90 minutes
1.4.1 Capacity to be held accountable for wrongdoings 60 minutes
1.5.1 Legal status 30 minutes
Estimated total time for this learning unit’s activities 4 hours

The challenge you may experience in this learning unit relates to the new concepts applicable
to the law of persons, so ensure that you are familiar with the way that these are used in this
module by referring to the definitions included in the prescribed readings for this unit.
Learning Unit 1: Defining Words and Concepts Used in the Law of Persons
Sessions: Theme 1: What is a “person” and why Prescribed Material (PM)
1-4 does this matter?
LO1: Explain what the Law of Persons is PM1: Chapter 2
Related and why we commence the study of
Outcomes: law with this subsection of private
MO001 law;
MO002 LO2: Define the following legal concepts
and explain how they relate to each
other:
o Law of Persons;
o natural person;
o legal person;
o legal subject;
o legal object;
o legal subjectivity; and
o legal personality
Theme 2: What are Rights, Duties and PM2: Chapter 2
Legal Objects?
LO3: Differentiate between t real rights,
personal rights and personality
rights;
LO4: Explain the relationship between
legal rights and duties;
LO5: Differentiate between physical
things, performance and personality
interests.
Theme 3: The Impact of the Constitution PM1: Chapter 2
of the Republic of South Africa,
1996 on the Law of Persons
LO6: Identify which rights in the Bill of
Rights are most relevant to the Law
of Persons;
LO7: Discuss what happens when
common law and/or statutory rules
are unconstitutional;

LO8: Discuss what happens when existing

rules infringe someone’s
fundamental rights as contained in
the Bill of Rights.
Theme 4: What is capacity? PM: Chapter 2

LO9: Differentiate between the various
types of capacity passive legal
capacity active legal capacity;
capacity to act capacity to litigate.
Theme 5: What is status? PM: Chapter 2
LO10: Define “status”;
LO111: Identify the factors which affect NB: paragraphs 6, 7 and 8
legal status. from pages 14-20 will not be
LO12: Discuss the impact of status on assessed.
capacity.

Learning Unit 2 Beginning of Legal Personality
Overview:
A legal subject is an entity capable of holding rights, duties and capacities. For purposes of the
law, it is important to identify how and when a human being becomes a legal subject, and how
and when a juristic person becomes a legal subject in the eyes of the law. According to current
law, legal personality for human beings begins at birth, whereas for juristic persons, such as
commercial companies, the decisive event is registration.
In this learning unit, we will look at how and when a human being becomes a “person” for
legal purposes, how the law acknowledges in practical terms the period in time before the
birth of a human being and consider the important legal consequences that arise from the
acquisition of personhood status.
Please work through Themes 1, 2 and 3 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for this
learning unit, please complete the following activities on Learn:
Activity Estimated Time

on Task
2.1.1 The commencement of legal personality 30 minutes
2.2.1 The application of the nasciturus-fiction 90 minutes
2.3.1 Proof of paternity 60 minutes
The challenge you may experience in this learning unit relates to understanding the nasciturus-
fiction and the applicable cases. Ensure that you are familiar with content and the prescribed
cases that are used in this module by referring to the definitions included in the prescribed
readings for this unit.

Learning Unit 2: Beginning of Legal Personality

Sessions: Theme 1: Birth and its legal significance Prescribed Material (PM)
5–8
LO1: Explain how birth is proved for PM: Chapter 3
natural persons. w
LO3: Explain the consequences for the NB: paragraph 2.1 will not
acquisition of legal personality; be assessed.
LO2: Describe how paternity is proved;
LO3 Apply the Latin maxim pater est paragraph 3.6 from pages
quem nuptiae demonstrant to a set 35-36 will not be assessed.
of facts paragraph 4 from pages 36-
LO4 Distinguish between a rebuttable and 38 will not be assessed.
irrebuttable presumption in relation
to paternity
LO5: Explain the importance of
registration of birth; and
LO6: Explain the law as it relates to the
registration of birth:
• the naming of natural persons
• a child’s surname
• official name changes.
Related Theme 2: Origin and Application of the PM: Chapter 3
Outcomes: Nasciturus Fiction
MO001 LO7: Discuss the origins and rationale Pinchin v Santam Insurance Co
MO002 behind the nasciturus fiction; Ltd 1963 (2) SA 254 (W)
LO8: Discuss the requirements for the
operation of the nasciturus fiction; Road Accident Fund v Mtati
2005 (6) SA 215 (SCA)
LO9: Discuss how the nasciturus fiction
was applied in the case of Ex parte
Boedel Steenkamp 1962 3 SA 954
(O);
LO13: With reference to the cases of
Pinchin v Santam Insurance Co Ltd
1963 2 SA 254 (W) and Road
Accident Fund v Mtati 2005 6 SA 215
(SCA), discuss whether the
application of the nasciturus fiction
can be extended to the Law of
Delict.

Learning Unit 3 Effect of Age (Minority) on Status and Capacity
Overview:
A person’s legal status depends on his or her membership of a particular group or class of
people. The legal system decides which particular groups are important for the purpose of
legal status. It may be said that age is the most significant factor affecting status of persons,
and therefore their ability to acquire rights, duties or capabilities in terms of the law.
In this learning unit, we will look at the effect of age on status, on a person’s capacity to
perform juristic acts, on contractual capacity, on a person’s ability to consent to medical
treatment and the effect of age on a person’s capacity to be held accountable for crimes and
delicts.
for this learning unit, please complete the following activities on Learn:

on Task
3.1.1 The effect of age on status 20 minutes
3.2.1 The effect of age on the capacity to perform juristic acts 90 minutes
3.3.1 Contractual capacity of minors 90 minutes
3.4.1 HIV testing of children 90 minutes
3.5.1 The capacity of children to be held accountable for crimes 20 minutes
and delicts
Estimated total time for this learning unit’s activities 5 hours 10
minutes
The challenge you may experience in this learning unit relates to differentiating between
the capacity of infans and minors as it relates to contractual capacity, consent to medical
treatment and criminal and delictual accountability.

Learning Unit 3: Effect of Age (Minority) on Status and Capacity

Sessions: Theme 1: Effect of age on status Prescribed Material (PM)
9 - 12
LO1: Define a minor; PM: Chapter 4
LO2: Define an infans;
LO3: Discuss the difference in law
between the capacities of infans and
older minors;
LO4: Define a juristic act.
Related Theme 2: Effect of Age on Capacity PM: Chapter 4
Outcomes: LO5: Discuss the capacity of an infans
MO002 with specific reference to” Sesing v Minister of Police 1978
MO003 • conclude valid contracts (4) SA 742 (W)
• the legal effect of a guardian’s
assistance
Louw v MJ & H Trust (Pty) Ltd
• the consequences of an
1975 (4) SA 268 (T)
unassisted contract of an infans
• liability of an infans
• identify the remedies available Soller NO v G and Another
to the other contracting party 2003 (5) SA 430 (W) paras
when an infans acts alone 14-19
LO6: Discuss the capacity of older minors
with specific reference to:
• conclude valid contracts
• the legal effect of a guardian’s
assistance
• different forms of assistance
• the consequences of an
unassisted contract of a minor
• liability of a minor for an
unassisted contract
• identify the remedies available
to:
o the other contracting
party in respect of a
limping contract
o the application of
restitutio in integrum
o the emancipation and its
legal consequences

o how and when minority

ends.
Theme 4: Effect of age on ability to PM: Chapter 4

consent to medical treatment
LO7: Discuss the relevant statutory
provisions that regulates consent to
surgical operations and other forms
of medical treatment;
provisions that govern HIV testing
of children and disclosure of test
results;
provisions that deal with provision
of contraceptives to children,
including termination of pregnancy.
Theme 5: Effect of age on capacity to be PM: Chapter 4
held accountable for crimes and
delicts
LO10: Discuss the capacity of an infans to
be liable for delicts that require
intention or negligence;
LO11: Discuss the capacity of an infans to
be liable for delicts that do not
require intention or negligence; and
LO12: Discuss the criminal accountability
of minors.

Learning Unit 4 Sex and Gender as Factors Affecting Status
Overview:
The Constitution of the Republic of South Africa, 1996 protects certain human rights, including
the right to be treated equally under the law by forbidding unfair discrimination on several
grounds, including a person’s sex or gender. However, these rights are not absolute and may
be limited in certain circumstances. Situations may arise where the Constitution permits
discrimination on the basis of sex and/or gender provided that such discrimination is ‘fair’.
In this learning unit, we will look at the meaning of ‘sex’ in a legal context, when the law allows
for different treatment of people because of their sex and issues relating to transsexualism
and sex reassignment.

on Task
4.1.1 The legal definition of ‘sex’ 20 minutes
4.2.1 Natural Sex and Capacity 90 minutes
4.3.1 Can you change your legal sex? 90 minutes
minutes
The challenge you may experience in this learning unit relates to differentiating between the
terms “gender” and “sex”. Pay particular attention to the ways in which the law differentiates
between persons on the basis of sex and familiarise yourself with the effect of the Alteration
of Sex Description and Sex Status Act 49 of 2003 on the legal position of persons who have
undergone sex reassignment surgery.

Learning Unit 4: Sex and Gender as Factors Affecting Status

Sessions: Theme 1: The meaning of “sex” in a legal Prescribed Material (PM)
13 - 15 context
LO1: Differentiate between the terms PM: Chapter 5
“sex” and “gender”;
LO2: Explain how “sex” is determined for
legal purposes.
Related Theme 2: When does the law treat people PM: Chapter 5
Outcomes: differently because of their sex
MO002 LO3: Explain how a person’s natural sex
MO003 affects their capacity and status in
the legal system;
LO4: Provide examples of instances where
the law differentiates on the basis of
sex;
LO5: Discuss the constitutionality of the
common law age thresholds for the
marriage of boys and girls;
Theme 3: Transsexualism and gender PM: Chapter 5
reassignment
LO6: Apply with reference to a set of
facts:
• the previous legal position as
stated in W v W 1976 2 SA 308
(W) relating to the legal effect of
sex reassignment surgery; and
• the effect of the Alteration of
Sex Description and Sex Status
Act 49 of 2003 on the legal
position of persons who have
undergone sex reassignment
surgery.

Learning Unit 5 Mental Illness as a Factor Affecting Status
Overview:
The justification for limiting a person’s capacity to act is to protect his or her interests. If a
person does not understand the nature and consequences of an act, the law will attach no
legal consequences to the act. It is for this reason that the law does not recognise any capacity
to act on the part of people suffering from mental illness.
In this learning unit, we will look at the meaning of mental illness, the impact of a person’s
mental illness on his or her capacity and the provisions regarding curatorship and
administration.

on Task
5.1.1 The meaning of mental illness 20 minutes
5.2.1 Criminal liability of the mentally incapacitated 90 minutes
5.3.1 Curatorship and administration 90 minutes
minutes
The challenge you may experience in this learning unit relates to defining mental illness in
terms of the common law and statute and the impact the mental illness has on the individual’s
capacity.

Learning Unit 5: Mental Illness as a Factor Affecting Status

Sessions: Theme 1: The Meaning of Mental Illness Prescribed Material (PM)
16 - 18
LO1: Identify the sources of law applicable PM: Chapter 6
to mental illness and mental
disability Lange v Lange 1945 AD 332
LO2: Describe how the common law and
courts have defined mental illness;
LO3: State how mental illness is defined in
the Mental Health Care Act 17 of
2002;
LO4: Explain how mental illness is proved
with reference to a set of facts;
LO5: Discuss the types of curators that
may be appointed for a mentally ill
person.
Related Theme 2: The Impact of a Person’s Mental PM: Chapter 6
Outcomes: Illness on His or Her Capacity
MO001 LO6: Apply with reference to a set of
MO002 facts:
MO003 • the effect of a person’s mental
illness affects his or her
capacity to perform juristic acts;
• how a person’s mental illness
affects his or her capacity to
litigate;
affects his or her capacity to
hold offices;
affects his or her criminal and
delictual liability.

Theme 3: Curatorship and administration PM: Chapter 6

LO7: Identify the different types of curator
that may be appointed;
LO8: Explain the role of a curator in
relation to a mentally ill person;
LO9: Set out the limitations on the role
that curators may assume in Soller NO v G and Another
respect of mentally ill persons; 2003 (5) SA 430 (W) paras
LO10: Discuss the legal ethical obligations 14-19
of the curator with reference to
case law;
LO11: Describe the application process for
the appointment of an
administrator for a mentally ill
person;
LO12: Discuss the role and functions of an
administrator appointed in terms of
2002;
LO13 Discuss the powers and duties of an
administrator appointed in terms of
2002; and
LO14: Contrast powers, functions and
duties of an administrator
appointed in terms of the Mental
Health Care Act 17 of 2002 and a
curator bonis.

Learning Unit 6 Intoxication from Drugs and/or Alcohol as a Factor Affecting Status
Overview:
The justification for limiting a person’s capacity to act is to protect his or her interests.
Accordingly, the law does not recognise any capacity to act on the part of people suffering
from mental illness as they do not understand the nature and consequences of their actions.
For that reason, the law also protects those influenced by drugs or alcohol by limiting their
capacity to act in some cases.
In this learning unit, we will look at the meaning of intoxication, the impact of a person’s
intoxication from drugs and/or alcohol on their capacity and the provisions regarding
curatorship of an intoxicated person.

on Task
6.1.1 Defining ‘intoxication’ for purposes of the law 90 minutes
6.2.1 Criminal liability while intoxicated 90 minutes
6.3.1 Curatorship 20 minutes
minutes
The challenge you may experience in this learning unit relates to when intoxication may have
an effect on the individual’s capacity to act in terms of contract, their ability to litigate, hold
certain offices and be liable either delictually or criminally.

Learning Unit 6: Intoxication from Drugs and/or Alcohol as a Factor Affecting Status
Sessions: 19 -22 Theme 1: The Meaning of Intoxication Prescribed Material (PM)
LO1: Explain what is meant by intoxication PM: Chapter 6

for the purposes of law;
LO2: Discuss when a person’s intoxication
is considered by law to impair his or
her capacity to perform juristic acts.
Related Theme 2: The Impact of a Person’s PM: Chapter 6
Outcomes: Intoxication from Drugs and/or Alcohol on
MO002 their Capacity
MO003 LO3: Apply the consequence of a finding
that a person’s capacity to act was
nullified by drugs and/or alcohol to a
set of facts;
LO4: Explain the circumstances under
which intoxication may be used as a
defence against contractual liability;
LO5: Explain when a person’s intoxication
will affect his or her capacity to
litigate;
LO6: Explain when a person’s intoxication
will affect his or her capacity to hold
office;
LO7: Discuss the impact of an impairment
caused by alcohol and/or drugs on
delictual liability;
LO8: Apply the law as it relates to the
impact of an impairment caused by
alcohol and/or drugs on criminal
liability; and
Theme 3: Curatorship of the intoxicated PM: Chapter 6
person
LO9: Discuss the circumstances under
which an intoxicated person may be
placed under curatorship.

Learning Unit 7 Prodigality as a Factor Effecting Status
Overview:
In this learning unit we examine the legal capacities of the ‘prodigal’. As we shall see,
declaration as a prodigal has the result that a person will have limited capacity to perform
juristic acts, in particular, he or she will not have the capacity to bind herself or himself in
contract unless assisted by a curator.
In this learning unit, we will look at what a prodigal is, the procedure to have someone
declared a prodigal and the consequences of such a declaration.
Please work through Theme 1 on Learn, together with the relevant sections of your prescribed
source/s. To ensure that you are working towards mastering the objectives for this learning
unit, please complete the following activities on Learn:

on Task
7.1.1 Capacities of a Prodigal 90 minutes
7.1.2 Declaration as a prodigal 20 minutes
Estimated total time for this learning unit’s activities 1 hour 50
minutes

Learning Unit 7: Prodigality as a Factor Effecting Status

Sessions: Theme 1: Declaration as a prodigal Prescribed Material (PM)
23-24
Related LO1: Discuss the law relating to prodigality PM: Chapter 6
Outcomes: with reference to:
MO001 • the definition of a prodigal
MO002 • application for order of
MO003 prodigality;
LO2: Explain the impact of prodigality on a
person’s status and capacity to
perform juristic acts:
• capacity to hold office
• capacity to litigate
• criminal accountability
LO3: Apply the law relating to prodigality
to a factual scenario.

Learning Unit 8 Insolvency as a Factor Effecting Status
Overview:
Insolvency limits the legal capacities of a person in order to protect his or her creditors or
potential creditors.
This learning unit examines the impact of insolvency on a person’s capacity to deal with his or
her estate. It further looks at how an insolvent person can become rehabilitated.
Please work through Themes 1 and 2 on Learn, together with the relevant sections of your

on Task
8.1.1 Declaration as an Insolvent 90 minutes
8.1.2 Legal capacity of an Insolvent 30 minutes

Learning Unit 8: Theme Breakdown

Sessions: Theme 1: Declaration as an insolvent and Prescribed Material (PM)
25-26 sequestration
Related LO1: Discuss the law relating to PM: Chapter 6
Outcomes: insolvency;
MO001 LO2: Explain the impact of insolvency on a
MO002 person’s status and capacity; and
MO003 LO3: Apply the law relating to insolvency
to a factual scenario.

Learning Unit 9 Physical Disability as a Factor Affecting Status
Overview:
Physical disability may lead to a person being unable to manage his or her own affairs, and
therefore, such a person’s legal capacity may be affected to some extent. Accordingly, the law
makes provision for people who are physically disabled and legally incapacitated in some
circumstances.
In this learning unit, we will look at the law relating to persons who are unable to manage their
own affairs due to physical disability, the appointment of curators in such circumstances and
the legal capacities of a person for whom a curator has been appointed.

on Task
9.1.1 The legal position of persons unable to manage their own 15 minutes
affairs due to physical disability.
9.2.1 Appointment of curators 60 minutes
9.3.1 Criminal and delictual liability of a person for whom a 60 minutes
curator has been appointed.
minutes
The challenge you may experience in this learning unit relates to the different factors or
infirmities a court may take into consideration when appointing a curator for someone who is
physically disabled and the impact such an order will have on the individual’s capacity

Learning Unit 9: Physical Disability as a Factor Affecting Status

Sessions: Theme 1: The Legal Position relating to Prescribed Material (PM)
27-29 Persons who are Unable to Manage their
Own Affairs due to Physical Disability
LO1: Explain the common law position PM: Chapter 6
relating to persons who are unable
to manage their own affairs due to
physical disability.
Related Theme 2: Appointment of Curators PM: Chapter 6
Outcomes: LO2: Identify the kinds of infirmities in
MO001 respect of which the High Court may
MO002 appoint a curator on the grounds
MO003 that it renders a person unable to
manage his or her own affairs;
LO3: Describe the courts’ approach
towards appointing curators for
persons who suffer from physical
disabilities;
LO4: Identify the important considerations
that a court will have when deciding
on an application for curatorship;
LO5: Discuss the main purpose of a
curator who has been appointed for
a person who is unable to manage
his or her own affairs due to physical
disability; and
Theme 3: Legal Capacities of a Person for PM: Chapter 9
whom a Curator has been Appointed
LO6: Discuss the following capacities of a
person who is unable to manage his
or her own affairs due to physical
disability:
o capacity to perform juristic
acts;
o capacity to litigate; and
o capacity to incur delictual or
o criminal liability.

Learning Unit 10 Domicile as a Factor Affecting Status
Overview:
Ordinary language can take on a different meaning when used in a legal context. The definition
of domicile relates to a home in ordinary language, whilst it can mean a place the law identifies
as a person’s place of residence for the exercise of rights and duties, when understood within
a legal context. Domicile is an important principle in South African law and is not the same as
residence or citizenship. There are various sources of our law that have different implications
for different types of domicile and the application thereof. As is the case with most legal
principles, the supremacy of the Constitution takes precedence in matters relating to domicile,
particularly where issues affecting matrimony, choice, origin and birth are concerned.
In this learning unit, we will look at the impact of a person’s domicile on his/her legal status.

on Task
10.1.1 The meaning of domicile 90 minutes
10.2.1 The importance of domicile 90 minutes
10.3.1 The types of domicile 90 minutes
10.4.1 The Domicile Act 90 minutes
10.5.1 Domicile of Origin 60 minutes
10.6.1 Proving Domicile 90 minutes
10.7.1 Exclusivity and Tenacity of Domicile and the problem of 90 minutes
renvoi
You may experience difficulties differentiating between the different types of domicile and
when they would be applied. Pay particular attention to the rules of domicile and make sure
you can apply them to various scenarios.

Learning Unit 10: Domicile as a Factor Affecting Status

Sessions: Theme 1: Legal Definition of Domicile Prescribed Material (PM)
30-37
LO1: Define domicile in South African law; PM: Chapter 7
LO2: Distinguish between domicile and
residence; Eilon v Eilon 1965 (1) SA 703
LO3: Distinguish between domicile and (A)
citizenship.
Related Theme 2: Importance of Domicile PM: Chapter 7
Outcomes: LO4: Explain why a person’s domicile is
MO001 important;
MO002 LO5: Use suitable principles of law relating
MO003 to domicile to determine which legal
system is applicable and to answer
questions of jurisdiction;
LO6: Explain when “choice of law” or
“conflict of laws” problems arise;
LO7: Identify the most important “choice
of law” problems solved by domicile;
LO8: Discuss the constitutionality of the
rule that a married couple’s
matrimonial domicile is the place
where the husband was domiciled
on the day of the wedding.
Theme 3: The Different Types of Domicile PM: Chapter 7
LO9: Identify the sources of law relating to
domicile in South Africa;
LO10: Describe the kinds of domicile
provided for by the Domicile Act 3 of
1992.
Theme 4: The Domicile Act PM: Chapter 7
LO11: Apply the law as it relates to who
may acquire a domicile of choice in
terms of section 1(1) of the
Domicile Act 3 of 1992;
LO12: Apply the law with reference to the
categories of persons excluded
from obtaining a domicile of choice;
requirements for establishing a
domicile of choice;

LO14: Examine problem cases in relation

to domicile of choice;
categories of persons who are
assigned a domicile by operation of
law;
LO16: Explain how a domicile of closest
connection is established;
LO17: Discuss how the domicile of a child
is determined;
LO18: Explain the standard of proof for
determining the acquisition or loss
of a person’s domicile;
LO19: Explain the circumstances which
may assist in proving the acquisition
of a domicile of choice.
Theme 5: Domicile of Origin PM: Chapter 7
LO20: Explain what a domicile of origin is;
domicile of a new-born baby;
LO22: Discuss the current relevance of a
domicile of origin;
LO23: Explain the two important
(“golden”) rules concerning
domicile; and
LO24: Explain what renvoi means and how
section 4 of the Domicile Act solves
the problem of renvoi.

Learning Unit 11 The End of Legal Personality
Overview:
Legal personality is the ability to be the bearer of rights, duties and capacities in terms of the
law. Two types of legal persons, namely natural and juristic persons, can potentially be
bestowed with this status and consequent capacities. In the case of natural persons, legal
personality arises at the live birth of a human; with juristic persons this usually occurs through
a form of registration. In turn, the law also makes provision for the termination of this legal
recognition or status as a legal person.
In this learning unit, we will look at death and its legal significance, proof of death, the
presumption of death and its effects, the sequence or moment of death and the registration
of death.

on Task
11.1.1 Death and its legal consequences 30 minutes
11.2.1 Proving death under South African law 60 minutes
11.3.1 The common law presumption of death 60 minutes
11.4.1 The sequence or moment of death 60 minutes
11.5.1 Registration of deaths 30 minutes
The challenge you may experience in this learning unit relates to distinguishing between the
common law and statutory procedures for obtaining a presumption of death order.


Sessions: Theme 1: Death and Its Legal Significance Prescribed Material (PM)
38-43
LO1: Explain why determining the exact PM: Chapter 8
time of the ending of the legal
person is important for the law;
LO2: Discuss when the legal personality of
a juristic person generally comes to
an end;
LO3: State when the legal personality of
natural person terminates.
Related Theme 2: Proof of Death PM: Chapter 8
Outcomes: LO4: Explain the importance of
MO001 establishing proof of death;
MO002 LO5: Describe how the physical death of a
MO003 person is proved in South African
law;
LO6: State the current legal definition of
death.
Theme 3: Presumption of Death and its PM: Chapter 8
Effects
LO7: Identify the two main avenues for Re Beaglehole 1908 TS 49
obtaining a presumption of death Ex Parte Govender 1993 (3) SA
order in South Africa; 721 (D)
Ex Parte Graham 1963 (4) SA
LO8: Distinguish between the common
145 (D)
law and statutory procedures for
obtaining a presumption of death
order;
LO9: Discuss who may apply for an order
presuming death in terms of
common law;
process for obtaining an order
presuming death in terms of
common law;
LO11: List some of the factors that might
be relevant to a court when
determining whether to grant an
order of presumption of death;

LO12: Describe the court’s attitude to

issuing presumption of death orders
in terms of common law;
LO13: Discuss the consequences of
obtaining an order presuming death
in terms of common law with
specific reference to the missing
person’s estate and marriage
LO14: Explain the consequences of
someone who has been presumed
dead returning home;
LO15: Explain what an inquest is;
LO16: State which Act(s) governs the
statutory procedure for obtaining a
presumption of death order;
LO17: Describe the process for obtaining
an order presuming death in terms
of statute;
LO18: Discuss the consequences of an
order presuming death in terms of
statute.
Theme 4: The Sequence or Moment of PM: Chapter 8
Death
LO19: Define commorientes;
LO20: State what presumption currently
applies in South African law
regarding the moment or sequence
of death; and
Theme 5: Registration of Death PM: Chapter 8
LO21: Discuss what needs to be done to
formally report that someone’s
legal personality has ended.

Learning Unit 12 Law and the Dead
Overview:
Death leads to the termination of the legal personality of a legal subject, and subsequently,
the law recognises the sentiments of society regarding what happens after the death of a
person. However, the law does not regulate death for the sake of the dead persons but rather
for the boni mores or in the public interest.
In this learning unit, we will look at the law relating to burial and other duties following the
death of a person, post-mortem examinations and crimes involving the human corpse.

on Task
12.1.1 Burial and other duties 30 minutes
12.2.1 Post-Mortem Examination 60 minutes
12.3.1 Necrophilia and the law 60 minutes
minutes


Sessions: Theme 1: Burial and other Duties Prescribed Material (PM)
44-48
LO1: Explain what happens to the PM: Chapter 9
deceased’s remains after
registration of death;
LO2: Explain why the law regulates the
disposal of the human corpse;
LO3: List the permissible forms of disposal
of human remains in South Africa;
LO4: Explain the process for disposal of a
corpse by burial;
LO5: Discuss how the choice between the
means and venue of disposal is
made in respect of a deceased
individual.
Related Theme 2: Post-Mortem Examination PM: Chapter 9
Outcomes: LO6: Explain what a post-mortem is;
MO001 LO7: Identify the statutes that regulate
MO002 post-mortem examinations.
MO003 Theme 3: Crimes Involving the Human PM: Chapter 9
Corpse
LO8: Explain what is meant by “body
snatching” and “grave robbing”;
LO9: Describe how South African law
criminalises both “body snatching”
and “grave robbing”;
LO10: State the reasons for criminalising
“body snatching” and “grave
robbing”;
LO11: Explain what is meant by
“necrophilia”;
LO12: Describe how South African law
criminalises necrophilia;
LO13: Discuss how the legal use of human
tissue and human organs is
regulated in South Africa;
LO14: Discuss the legal position relating to
organ trafficking; and
LO15: Discuss the legal position relating to
removal of tissue or organs for

traditional medicine – “muti

murders”.

Glossary of Key Terms for this Module

Term Origin and Definition
A quo From which e.g. a court a quo, that is the court from which the appeal
is being heard.
Absolution from the This is the order given when the plaintiff has not discharged the onus
instance of proof (i.e. proven his case). It means that the defendant has not
been shown to be blameworthy. The claim is not denied completely
as the plaintiff can later institute another claim and the defendant
cannot set up the defence of res iudicata (see below).
Ad litem Appointed to act in a court case on behalf of a child or other person
who is not considered capable of representing themselves, e.g., a
curator ad litem is a person appointed for the purpose of
representing someone in a court case.
Capacity to act The capacity to enter into legal transactions.
Capacity to litigate The capacity to appear in court as a party in a legal matter.
De facto Based on the factual situation.
De iure Based on the law.
Ex Parte With respect to, or in the interests of, one side only or of an
interested outside party, e.g. Ex Parte Pieters.
In casu In this case.
Inter alia Amongst other things.
Interim Provisional; not final.
Ipso facto By that very fact or act itself; in and of itself; self-evident.
Ipso iure By the law itself; by operation of law.
Juristic act An action intended to, and capable of, having a legal effect, such as
when parties enter into a legally binding agreement. It includes
creation, termination, or alteration of a legal right.
Legal capacity The ability to have rights and duties.
Legal intercourse Communication, interaction or transactions between persons which
have legal effect and consequences.
Legal object Anything in respect of which a legal subject may have rights, duties
and capacities.
Legal subject A person or entity that can have rights, duties and capacities. A legal
subject has the capacity to take part in legal intercourse.
Litis contestatio The pre-trial stage of civil proceedings where the contested/disputed
issues between the parties have been identified and established; the
time when the parties start the action, namely at the close of
pleadings.

Term Origin and Definition

Mutatis mutandis With the necessary amendments, i.e. changing [only] those things
which need to be changed.
Obligation A legal bond or tie in terms of which one person has the right to a
performance and another person has a corresponding duty to render
performance. A civil obligation is legally enforceable whilst a natural
obligation is unenforceable.
Presumption An assumption made by the law on the basis of the facts available.
Prima facie At first glance; based on first impression.
Ratification To subsequently, or after the fact, confirm a juristic act so that it
acquires full validity retrospectively.
Res ipsa loquitur The facts speak for themselves; the principle that the mere
occurrence of some types of accident is sufficient to imply negligence.
Restitutio in A contractual remedy by means of which the former position is
integrum restored, i.e. the return of whatever has been performed in terms of a
contract.
Status quo ante The previously existing state of affairs.
Sub iudice A particular case or matter is under trial or being considered by a
judge or court, i.e., the case has not yet been decided.
Viva voce By word of mouth; oral rather than written, e.g., evidence given
orally.

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Using this Module Outline

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This Module on Learn

• A list of prescribed material;

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Icons Used in this Document and on Learn

Specific references to sections in the prescribed work.

Questions to help you recognise or think about theoretical concepts to be

Opportunities to make connections between different chunks of theory in

Real life or world of work information or examples of application of theory,

You need to log onto Learn to:

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List of prescribed cases:

Legislation covered in this module:

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Formative Test 1 Test 2

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Assessment Preparation Guidelines

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LO8: Discuss what happens when existing

Theme 4: What is capacity? PM: Chapter 2

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Learning Unit 2 Beginning of Legal Personality

Activity Estimated Time

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Learning Unit 2: Beginning of Legal Personality

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Learning Unit 3 Effect of Age (Minority) on Status and Capacity

Activity Estimated Time

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Learning Unit 3: Effect of Age (Minority) on Status and Capacity

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o how and when minority

Theme 4: Effect of age on ability to PM: Chapter 4

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Learning Unit 4 Sex and Gender as Factors Affecting Status

Activity Estimated Time

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Learning Unit 4: Sex and Gender as Factors Affecting Status

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Learning Unit 5 Mental Illness as a Factor Affecting Status

Activity Estimated Time

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Learning Unit 5: Mental Illness as a Factor Affecting Status

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Theme 3: Curatorship and administration PM: Chapter 6

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Activity Estimated Time

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