Law of Persons

• Study Unit 1 introduces the law of persons

Introduction to the Law of Persons

• Law of persons affects each and every human being
• All humans are legal subjects, irrespective of age or mental capacity
• Recent legislation impacts the rules governing one’s legal personality or subjectivity
• The Constitution and the Children’s Act are particularly important

Legislation & the Law of Persons

• Chapter 2 of the Constitution’s Bill of Rights contains fundamental rights the state must respect
• Section 9 grants the right to equality
• Important cases relating to the right to equality:
  • J v Director General, Department of Home Affairs 2003 (5) BCLR 463 (CC) rules that a child born of artificial fertilization (AF) to a lesbian life partner has the same rights as a child born of AF to a married woman.
  • VJV v Minister of Social Development 2023 (6) SA 87 (CC) states that children born via AF to women in heterosexual or same-sex partnerships, with consent of permanent partner, have the same rights as children born to married women.
  • Du Toit v Minister of Welfare and Population Development 2003 (2) SA 198 (CC) allows same-sex partners to adopt jointly, so their children benefit from legal guardianship
  • Bhe v Magistrate, Khayelitsha 2005 (1) SA580 (CC) found the primogeniture rule (favoring male heirs) unconstitutional
  • Centre for Child Law v Director General: Department of Home Affairs 2022 (2) SA131 (CC) places children born of unmarried parents on the same footing as children born of married parents

Transformative Constitutionalism

• The Constitution's transformative aim is reinforced by the Bill of Rights
• The rights focus on human dignity and equality
• Race-based and sexist concepts are replaced with non-racialism and equality principles
• This has a major influence on various parts of law like Succession and Socio-economic rights

Section 28(2) of the Constitution

• S28(2) plays a fundamental role in protecting children's rights
• S28(2) states that a child's best interests are of paramount importance in every matter concerning the child
• The provision is not an "overbearing, unrealistic trump" that automatically overrides other rights
• Section 28(2) is a right in itself and can be limited as it exists in a non-hierarchical system of rights

The Children’s Act 38 of 2005

• The Children’s Act further protects the best interests of the child beyond s28(2) of the Constitution
• The Act specifies factors to consider in a child's best interest and introduced common law position changes
• It replaced ‘parental authority’ with ‘parental responsibilities and rights'
• The age of majority lowered from 21 to 18 in section 17
• Unmarried fathers are afforded parental rights and responsibilities to children in certain circumstances

The Child Justice Act 75 of 2008

• The minimum age for criminal capacity is 10 years old
• Under the age of 12, a child lacks criminal capacity
• Those 12 or older, but under 14, are presumed not to have criminal capacity unless the State proves it
• The Child Justice Amendment Act 28 of 2019 relates to the minimum age for criminal capacity
• Customary Law in Law of Persons is a separate legal system applied where relevant

Areas in Need of Reform

• Common law principles that govern delictual liability of minors:
• Puberty
• Equality Clause
• Legislative provisions that regulate marriages of minors:
• Equality
• Child Marriage