ILL121 LECTURE NOTES - STUDY UNIT 1 - 2023 (2).docx

**STUDY UNIT 1** **KEY ASPECTS OF PRIVATE LAW** **LEARNING OUTCOMES** - **Discuss the notion of legal subjectivity** - **Distinguish between different legal persons** - **Distinguish between legal capacity, capacity to act, capacity to participate in legal proceedings and accountabili...

**STUDY UNIT 1** **KEY ASPECTS OF PRIVATE LAW** **LEARNING OUTCOMES** - **Discuss the notion of legal subjectivity** - **Distinguish between different legal persons** - **Distinguish between legal capacity, capacity to act, capacity to participate in legal proceedings and accountability** - **Explain how subjective rights function** - **Describe the impact of slavery and apartheid on legal subjectivity** - **Discuss relevant provisions in the Bill of Rights that protect and uphold the universality of legal subjectivity** - **Apply your theoretical knowledge to real cases** **Contents of STUDY UNIT 1** 1.1 Introduction 1.2 Who and What are Persons (Legal Subjects) and the Notion of Legal Subjectivity? 1.3 Capacities 1.4 Subjective Rights 1.5 The Protection of Subjective Rights **1.1 INTRODUCTION** - As part of your study in the Law of Persons 112 in Semester 1 you dealt with: \(i) The distinction between legal subjects and legal objects. \(ii) The different subjective rights and the legal object that corresponds with these rights. (iii)The different absolute and relative rights and the difference between these two categories of subjective rights. - You also learnt that the sources of Private Law and, therefore of the Law of Persons, consist of: \(i) Roman Law \(ii) Roman Dutch common law principles \(iii) Statutory law (legislation) \(iv) Case law (judicial precedent) \(v) African customary law (vi)The Constitution of the Republic of South Africa, 1996. - This study unit will only touch on some of the key aspects of private law. **1.2 WHO AND WHAT ARE PERSONS (LEGAL SUBJECTS) AND THE NOTION OF LEGAL SUBJECTIVITY** **Kleyn & Viljoen Chapter 7, 207-210** - It becomes necessary to understand who or what is a person/legal subject. In other words, when does a person/legal subject come into existence? We also need to understand why it is important to know whether an entity is a person/legal subject. - By way of definition, a person is any entity recognised by the law as being capable of being the bearer of rights, duties and capacities. - Thus, the concept of a person is not limited to human beings (any entity) - an association of natural persons can also be the bearer of rights, duties and capacities -- for example a company. We, therefore, talk about legal subjects rather than persons.   **1.2.1 Legal Subjects Consist of (i) Natural Persons and (ii) Juristic Persons**   i. **Natural Persons** a. In modern South African law, all natural persons (human beings) are legal subjects. In other words, all natural persons have the ability to be the bearer of rights, duties and capacities. b. Thus, the concept of slavery does not legally exist in South African law unlike before 1834 when slavery was still practised in South Africa and worldwide. In the system of legal slavery that existed, slaves were not regarded as persons and were not the bearers of any rights. Slaves were the object of rights and were owned as one would own a laptop. c. Though slavery does not legally exist today, the following are some of the forms of slavery that still exist today. - Forced labour (e.g. people lured from rural areas with promise of employment only to be forced to work without pay or with little pay or sold off into situations of forced labour); - Human trafficking (e.g. people being sold for prostitution etc.); - Debt bondage (working off debt without any control over the remaining debt); - Child slavery/labour; - Forced marriage. d. Under Apartheid, though all South Africans were deemed to be legal subjects and capable of being the bearer of rights, duties and capacities, the Apartheid regime controlled the rights that could be exercised by certain sections of the population on the basis of race. Thus, not all people had equal rights and the majority of the people were denied certain rights on the basis of race. ii. **Juristic Persons** - A juristic person is the name given to an association of natural persons that the law recognises as being the bearer of rights, duties and capacities. - Thus, when two or more natural persons form an association (e.g. a church, company, university), a juristic person comes into existence. - They are legal subjects since they are bearers of rights, duties and capacities. - It is the juristic person, for example UWC, who pays the electricity bill of the University and not its members or students. - It is UWC who concludes contracts and not the Council. - They have the same roles as humans but they cannot do everything that humans do, for example, UWC cannot vote or marry. - A juristic person participates in legal matters through its members. - A director will act on behalf of a company. **1.2.2 The Constitution** - The notion of natural and juristic persons finds recognition in section 8(2) and 8(4) of the Constitution. - Section 8(2): "A provision of the Bill of Rights binds a natural or juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right." - Section 8(4): "A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person." **1.2.3 Legal Subjectivity** - From the discussion above it is clear that all natural and juristic persons are legal subjects and, hence, all have **LEGAL SUBJECTIVITY**. The term simply means that legal subjects (natural and juristic persons) are subjects of the law.   - In South African law, the legal subjectivity of human beings commences at live birth and terminates on death. - Though legal subjectivity commences at live birth, you will recall from your [Law of Persons module] that the foetus may be the bearer of rights for very limited purposes, for example, in the Law of Succession through the ***nasciturus* fiction**. - You will also recall the case of ***Pinchin v Santam Insurance* Co 1963 (2) SA 254 (W)** where the *nasciturus* fiction was extended to the Law of Delict to protect the interests of the unborn who suffered pre-natal injuries due to the negligence of another. - As holders of legal subjectivity (as subject of the law), natural persons have the ability to be the bearer of rights and duties. - This ability to be the bearer of rights and duties is called [legal capacity] which we will discuss in the next section. - Currently, our legal system recognises only natural persons and juristic persons as having legal subjectivity (as legal subjects) meaning that only natural and juristic persons may be the bearers of rights and obligations. - **Animals** do not have legal subjectivity. - However, there are **activists who argue that animals should have legal subjectivity** and, hence, should be the bearer of rights.   - Though animals are not endowed with legal subjectivity, animals do enjoy protection from maltreatment by legislation such as the Animal Rights Protection Act 71 of 1962. - Currently there is a bill, the Animals Protection Amendment Bill 2017, that seeks to (i) to prohibit the sale and manufacturing of cosmetics that were tested on an animal; (ii) to criminalise the testing of cosmetics on animals; and (iii) and criminalise the failure to provide an animal with an appropriate environment. SELF-EVALUATION QUESTIONS **Question 1.2 (a)** Distinguish between the juristic person and its members, explaining: \(a) how the juristic person participates in legal matters and how does it function? \(b) who acquires the rights and obligations? \(c) whether it may sue and be sued and how this works practically? \(d) whether there are any limitations on what a juristic person may do and why? **Question 1.2 (b)** Is ESKOM a natural person or a juristic person? Explain with reference to the above question. **Question 1.2 (c)** Briefly discuss the question whether animals should be accorded legal subjectivity. **1.3 LEGAL CAPACITY** **Kleyn & Viljoen Chapter 7, 210-212** **1.3.1 Introduction** - All legal subjects have legal capacity (legal ability), that is, the legal capacity (legal ability) to be the bearer of rights and obligations. - However, though all legal subjects have the **ability** to be the bearer of rights and obligations (legal capacity), not all legal subjects have **equal capacity/ability** to participate in legal affairs (legal discourse). - You learnt in the Law of Persons that a natural person's ability to participate in legal affairs (legal discourse) depends on the status of that legal subject, e.g. the age of a natural person is a factor that affects status. Thus, a 5-year old cannot conclude a valid contract. - In order to facilitate our understanding of the various legal limitations that legal subjects may be under, our law has grouped the various capacities into the following categories: legal capacity, capacity to act, capacity to litigate (to take part in legal proceedings), capacity to be accountable (accountability). **1.3.2 Capacity to Act** - The capacity to act refers to the **capacity (ability) to perform a valid juristic act**. A juristic act refers to an act to which the law attaches at least some of the legal consequences envisaged by the legal subject. - As mentioned above, age is a factor that affects a person's capacity (ability) to perform a valid juristic act.   1.3.2.1 A major of sound mind: full capacity to act - Most major persons (above 18 years) fall into this category. - Such persons, in theory, have **full capacity to act**. Limitations are sometimes imposed on them. - For example, a spouse married in community of property cannot sell off the community property without the consent of the other. You will learn more about marriage in Family Law this semester. - Some major persons do not have this capacity. - For example, major persons during **insanity** or who are in a **coma**. - Some legal subjects have no capacity to act. This is because the law presumes that they are incapable of understanding the legal nature and consequences of their actions. Because of this presumption, the law protects such legal subjects by not recognising their actions or by holding that they have no legal capacity. 1.3.2.2 Minors under the age of 7 (the infans) - The child **UNDER the AGE OF 7** has **[NO] capacity** to act. - However, such persons do not lose their legal rights. - A child under the age of 7 **can acquire ownership** of things, e.g. a house/car/bicycle. - However, in order for such child to acquire ownership, the legal act must be performed by the child's parents or guardian. In other words, the parents or guardian must act on behalf of such child. - Another example of a person with no capacity to act is an **INSANE PERSON**. - In the case of the insane person, the legal act must be performed by his/her curator. 1.3.2.3 Minors between the age of 7-18 - A person who has **LIMITED CAPACITY** to act requires the **permission** of his/her parents or guardian or curator to perform a juristic act. - For example, when a minor wishes to get married he needs the permission from his parents/guardians. **1.3.3 Accountability** - Accountability refers to the ability to distinguish between right and wrong. - This ability determines whether a legal subject may be held **delictually or criminally liable** for his/her actions. - If a person is unable to distinguish between right and wrong, we say that the person is ***doli et culpa incapax***. - This means that the person is **incapable (incapax)** of forming the requisite **intention (*dolus*)** [or] of being **negligent (*culpa*)**. - Together these two elements of liability are known as ***fault* (whether a person can be blamed for his conduct)**. - Fault in the form of either intention or negligence is one of the requirements for delictual liability (the others being conduct, wrongfulness, causation and damage). - Similarly, in Criminal Law, intention [or] negligence (forms of ***mens rea*, otherwise known as "a guilty mind"**) is one of the requirements for criminal liability (the others being conduct, unlawfulness, causation and criminal capacity). More about criminal liability in ILL121 STUDY UNIT 4. - One of the **factors** that has a bearing [on accountability] is **AGE**. - Another **factor** is whether or not the person was **INSANE** at the time the act was committed. 1.3.3.1 Accountability for delictual acts - Only some children will be held accountable for delictual acts. - For example, a child walks in the street and bumps into an elderly lady which leads her to fracture her leg. - Will the child, depending on the age, be held accountable for any resulting damages to the fracture of the elderly person's leg? - Accountability for children is based on the **presumption** that they either [lack] delictual responsibility or [possess] delictual responsibility. - An irrebuttable presumption in law is a presumption that **cannot** be challenged or refuted. - A rebuttable presumption in law is a presumption **that can** be challenged or refuted. - These presumptions exist to protect vulnerable individuals from the law. - Children under the age of 7 are **IRREBUTTABLY PRESUMED** to [lack] delictual responsibility. - Children between the ages of 7-14: are **REBUTTABLY PRESUMED** to [lack] delictual responsibility. - Children between the ages of 14-18 are **REBUTTABLY PRESUMED** to [possess] delictual responsibility. 1.3.3.2 Accountability for criminal acts - Some children will not be held accountable for committing crimes, including murder. - The Child Justice Amendment Bill which was signed into law on 4 June 2020 during Child Protection Week increased the minimum age of criminal capacity of children who have committed an offence from age 10 to age 12. - This means that children younger than 12 lack accountability (criminal capacity) and cannot be arrested or prosecuted for committing an offence. - They are therefore **IRREBUTTABLY PRESUMED** to [lack] criminal responsibility. - Children between the ages of 12-14: are **REBUTTABLY PRESUMED** to [lack] criminal responsibility. - Children between the ages of 14-18: are **REBUTTABLY PRESUMED** to [possess] criminal responsibility. SELF-EVALUATION QUESTIONS **Question 1.3 (a)** Cynthia goes to the car dealership and buys a car and obtains vehicle finance. However, the dealership is unaware that Cynthia is diagnosed with a severe mental illness. Cynthia causes a major accident a week after he bought the car and is unable to pay the remaining instalments. Will she be held delictually accountable for the vehicle finance contract? **Question 1.3 (b)** Explain the difference between rebuttable and irrebuttable presumptions in terms of the law of delict and criminal law. **Question 1.3 (c)** Sandile, an 8-year-old boy, kills Nhlanhla, a three-year-old toddler. Can Sandile be held criminally accountable for his conduct? **1.4 SUBJECTIVE RIGHTS** **Kleyn & Viljoen Chapter 7, 212-217** **1.4.1 Subjective Rights and Legal Objects** **A. SUBJECTIVE RIGHTS** - Since Private Law regulates the legal relationship between legal subjects, it follows that legal subjects must have rights which require protection and regulation. - These rights which legal subjects have are known as subjective rights. - There are many different kinds of subjective rights. - For the sake of good order and accessibility, and to facilitate the protection and regulation of these rights, subjective rights are grouped into categories according to the common characteristics they display. - We call this process of grouping together, classification" of subjective rights. Traditionally, the law recognises four (4) categories of subjective rights, namely real rights, personal rights, personality rights and intellectual property rights **B. LEGAL OBJECTS** - Rights to do not exist in a vacuum: a right must have an object. - A legal subject must have a right in or to something. - We call that something a legal object. - There are many different legal objects. As in the case of subject rights, legal objects are also grouped into categories according to their common characteristics. - Traditionally, the law recognises four (4) categories of legal objects. Each of these categories is linked to /married to one of the categories of subjective rights as seen below. **SUBJECTIVE RIGHTS LEGAL OBJECTS** **(I) REAL RIGHTS THINGS (CORPOREAL OBJECTS)** ** ** **(II) PERSONAL RIGHTS PERFORMANCES** ** ** **(III) PERSONALITY RIGHTS PERSONALITY PROPERTY** ** ** **(IV) INTELLECTUAL PROPERTY RIGHTS** (IV) **INTELLECTUAL PROPERTY** **1.4.1.1 Real Rights** - A Real Right is a right that a legal subject has in a legal object called a Thing. - In other words, the object of a Real Right is a Thing. An example of a Real Right is **ownership**. - A Thing is any corporeal objects that has value (monetary and/or sentimental value) to a legal subject. - For example, a laptop, books, clothing, a photograph of a loved one, a poem that your significant other wrote for you. - Real rights are **absolute rights** = meaning that they **may be enforced against anyone** in the world. - For example, no one may take your laptop without your permission. It is enforceable against every single person. **1.4.1.2 Personal Rights** - The legal object of a Personal Right is a **Performance**. - A Personal Right is a right that one legal subject has to demand that another performs the obligation that he owes him/her. - For example, Lukhanyo buys a bicycle from Nizaam. - The legal object of Nizaam's Personal Right is a performance, demanding Lukhanyo to pay money (performance) to Nizaam. - Lukhanyo's duty is to perform the obligation to Nizaam. - The duty to perform most commonly stems from the **contracts** (example above) and **delicts** (For example, Lukhanyo crashes with his car into Nizaam's car. Because of the delict, Nizaam acquires a personal right to demand that Lukhanyo performs his obligation to compensate Nizaam for any damages that he may have suffered from the accident). - Personal Rights are **relative rights** in that they may be enforced [ONLY] **against the person who owes the obligation** to render performance. - Thus, for example, Nizaam may demand payment for the bicycle (above example) only from Lukhanyo and not from Nizaam's wife or anyone else. **1.4.1.3 Personality Rights** - The legal object of Personality Rights are aspects of **one's personality**. - This refers to one's physical and mental integrity/well-being. - A list of objects/rights that would enjoy protection under Personality Rights include: \(a) his/her privacy; \(b) ownership over his/her own body (no-one can own a legal subject or a part of his/her body); \(c) demand that he/she not be assaulted; \(d) demand that his/her reputation not be harmed (not to be defamed etc.). - Personality rights are absolute rights, meaning that they may be enforced against anyone in the world. - Everyone must respect your right to your body and to your reputation etc. **1.4.1.4 Intellectual Property Rights** - The legal object of these rights is the product/creation of the human mind. - The law protects the ideas created by a legal subject through a category of subjective rights, called Immaterial/Intellectual Property Rights. - There are three classes of these rights: Copyright, Trade Marks and Patents. - An example of what Copyright protects would be the **ideas contained in a book**. - The legal object of these rights is the product/creation of the human mind. - The law protects the ideas created by a legal subject through a category of subjective rights, called Immaterial/Intellectual Property Rights. - There are three classes of these rights: Copyright, Trade Marks and Patents. - Thus, the idea contained in a book is protected though **Copyright Law**. - The idea contained in a trade mark is protected through **Trade Mark law**, e.g. the Nike symbol. "Pick n' Pay" is another example of a trade mark. - **Patents** protect the idea contained in any invention. Thus, if a vaccine is discovered for COVID 19, the idea contained in the creation of the vaccine (the formula) will be protected by Patent Law. - Most medicines (especially new ones) are protected under Patent Law. - Intellectual Property Rights are **absolute rights** and may be enforced against anyone in the world. - No-one may use your idea (whether in a book, symbol, name or medicine) without your permission. - Everyone must respect your right to your creation. **1.4.2 The Relationship Created by Subjective Rights** - A subjective right gives rise to a **dual legal relationship** between: a. the holder of the right and the object of his/her right (the bicycle); and b. holder of the right and other legal subjects in respect of the particular legal object (the bicycle). - This dual relationship created by Subjective Rights gives rise to rights and duties. **1.4.2.1 The Dual Relationship** **A. The subject-object relationship** - Subjective rights create a legal relationship between the holder of the right (the legal subject) and the particular legal object (bicycle, book, performance, idea, aspect of personality). - This legal relationship gives the holder the power to exercise control over the object of his/her right. - Herewith examples of the subject-object relationship based on the bicycle scenario: \(a) Nizaam, as owner, has the power to sell his bicycle or to give it away (Real Right). \(b) Nizaam, as the seller of the bike, has the power to demand that Lukhanyo performs his obligation to pay (Personal Right). \(c) An inventor has the power to use his/her invention or to sell it or to destroy it (Intellectual Property Right). \(d) Nizaam has a right to his good name (Personality Right). **B. The subject-subject relationship** - At the same time a legal relationship is created between the holder of the right and other legal subjects in respect of the particular legal object. - This requires all other legal subjects to respect the powers which the holder has over the object his/her right. Put another way, all other legal subjects have a duty to respect the legal relationship between the holder and the particular legal object. - Herewith examples of the subject-subject relationship based on the bicycle scenario: \(a) Other legal subjects have a duty not to interfere with Nizaam's right to his PlayStation (His Real Right). \(c) Other legal subjects have a duty not to interfere with Nizaam's personal right to claim performance from Lukhanyo. (Nizaam's Personal Right). \(d) Other legal subjects have a duty not to use an invention without the permission of the inventor (Inventor's Immaterial Property Right) \(e) Other legal subjects must not insult you because you have a right to your good name (Your Personality Right). **1.4.2.2 The Powers conferred by Subjective Rights** - As is evident from the above discussion, each of the subjective rights confers powers on the holder of the right (the legal subject). - Note that though we use the terms interchangeably, there is a fine distinction between a right and a power. - For example: Nizaam, as owner of his bicycle has a Real Right in his bike. - This Real Right of ownership gives Nizaam certain powers, e.g. the power to use the bike, to sell it, to give it away or to destroy it. - The Personal Right that Nizaam acquires when he sells it to Lukhanyo gives him the power to withhold delivery of the bike until payment or to demand payment or to institute legal action against Lukhanyo should he fail to make payment. - Again, it is important to note that the right-holder's powers are not unlimited. - For example, the owner of land may use it as he/she pleases but has a duty not to exceed the exercise of his/her rights, thereby causing harm to others, for example no loud music late at night. (Limitation of the Real Right of ownership.) **1.4.3 Subjective Rights and the Constitution** - Though the Constitution does not expressly recognise the categories of Subjective Rights, it does recognise and protect rights which are analogous to these categories. - For example: 1. Real Rights: The right to property in section 25. 2. Personality Rights: The right to dignity (s10); the right to freedom and security of the person (s 12); right to privacy (s14). SELF-EVALUATION QUESTIONS **Question 1.4 (a)** Explain the difference and interrelation between subjective rights and legal objects. Give one practical example. **Question 1.4 (b)** Jerry buys a cowboy toy gun from the supermarket. Explain the subject-object relationship and whether Jerry's subjective rights may be limited in terms of the toy gun. **1.5 THE PROTECTION OF SUBJECTIVE RIGHTS** **Kleyn & Viljoen Chapter 7, 217-218** **1.5.1 Remedies** - The law would be meaningless if it does not provide legal subjects with mechanisms for protection and enforcement of his/her subjective rights. - These mechanisms are contained in legal remedies. - In law, the *maxim ubi ius ibi remedium* meaning where there is a right there is a remedy applies. (Where (ubi) there is a right (ius) there is (ibi) a remedy (remedium)). - Thus, it cannot happen that the law provides a person with a right without at the same time providing a mechanism/remedy for the protection and enforcement of such right. - In Private Law for example: \(ii) Nizaam may use the *rei vindicatio* remedy to recover physical control of his bike from any person who possess it without her permission. If a thief steals it from him and sells it to you, Nizaam may vindicate it from you even if you were unaware that you were buying stolen property. (Example of the protection of a Real Right.) - These and other remedies are dealt with in detail in the various modules that you will be encountering during your studies. - In each of the instances above the injured party (Nizaam/the authors) would be the plaintiff and they would be instituting a civil claim against the Defendant (the doer). Nizaam may also be an applicant. **1.5.2 Defences** - We have seen above how the law assists the injured party by providing remedies when their subjective rights are violated. - The law is nothing but even-handed. It also allows the defendant an opportunity to defend himself/herself by providing defences. - The defendant would raise these defences to counter the Plaintiff's claim. - For example, Lukhanyo may rely on the defence of prescription if Nizaam fails to institute legal action for payment against Lukhanyo within three years from the date when payment was due. SELF-EVALUATION QUESTION **Question 1.5** Sithe owns an Apple iPhone 13. Lizzy steals it and sells it to Kathy who is unaware that it is stolen. Advise Sithe. **[END]**