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Name the entities that are recognised as juristic persons in our law
Our law recognises the following entities as juristic persons:
(a) Associations incorporated in terms of general enabling legislation;
banks, for example, are juristic persons.
(b) Associations especially created and recognised as juristic persons in
separate legislation; universities, for example, are juristic persons.
(c) Associations which comply with the common-law requirements for the
recognition of the legal personality of a juristic person. The common-
law requirements are that the association must have a continuous ex-
istence irrespective of the fact that its members may vary; it must have
rights, duties and capacities or be able to have rights, duties and ca-
pacities; and its object must not be the acquisition of gain (Heaton p 4).
The Society for the Prevention of Cruelty to Animals (SPCA) and the Treatment Action Campaign (TAC) are examples of associations like
these.
Is a partnership regarded as a juristic person in our law?
No, a partnership is not regarded as a juristic person (Heaton p 4).
Is a monstrum regarded as a legal subject in our law today?
Yes, any form of human life is today regarded as a legal subject (Heaton p 3).
At what moment does a person’s legal personality commence?
Legal personality commences at birth
A distinction is made between “living” and “official” customary law:
● Living customary law is “the customs, traditions, beliefs and values by
which people govern themselves”.10
● Official customary law is the laws and rules applied by the courts in the
Western legal tradition. This version of customary law is sometimes
criticised for being an incorrect representation of customary law.
) Who can apply to the High Court of South Africa to have a presumption of
death expressed?
In Heaton page 28, you will see that any interested person (e.g. spouse, child
or creditor of the missing person) can apply to the High Court to have a pre-
sumption of death expressed in regard to the missing person.
The first requirement for the beginning of legal personality is that the birth
must be fully completed. For birth to be complete it is not necessary that the
umbilical cord be severed. The statement is thus false (Heaton p 7).
The author’s objection to the requirement of viability is that it is a vague concept that could lead to impossible problems in evidence (Heaton p 7).
May the parents of an unborn child validly agree that the father will not be
held responsible for the maintenance of the child after his or her birth? Give
authority for your answer.
No. In Shields v Shields 1946 CPD 242 it was held that such an agreement is
invalid, because it is contrary to good morals or the legal convictions of the
community (see the discussion under “Maintenance after birth” above).
In English law, such a presumption is usually expressed after an absence of
seven years. What is the position in South Africa? Briefly explain.
The length of a person’s absence can be taken into account and can even be
decisive, but it is not the only factor that the court will consider (Heaton ex-
plains p 29).
List the two requirements for the application of the fiction.
The two requirements for the application of the fiction are that the child must
have been conceived at the time when the benefit would have accrued to him
or her, and must subsequently be born alive (Heaton p 12).
) Fill in the two missing words in the following sentence:
Under viability is understood that the child must have reached such a stage
of development that she can ............... ............... of her mother’s body.
The two missing words are: exist independently
(2) Name the specific contracts that a guardian cannot enter into on behalf of a
minor, although the guardian may consent to the minor’s entering into such
contracts.
(2) Firstly, the guardian may not enter into contracts of a closely personal nature
on behalf of a minor. Secondly, the guardian may not enter into a contract on
behalf of a minor if the contract will come into operation only when the minor
has attained majority. Thirdly, you could have mentioned that it is submitted
by Heaton that a guardian may not conclude a contract on behalf of a minor
that contravenes section 43 of the Basic Conditions of Employment Act 75 of
1997. (Note that minor below 15 years of age is not allowed to work. See
Heaton pp 89–90.)
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