UNIVERSITY OF ZULULAND

FACULTY OF COMMERCE, ADMINISTRATION & LAW

DEPARTMENT OF PRIVATE LAW

KWADLANGEZWA CAMPUS

COURSE CODE: LAW OF PERSONS - LPLP 101

YEAR: SEMESTER 1 -2014

CREDIT VALUE: 16 (NQF level -5)

Contents:

Part 1: Relevant Information

1.1 Information relevant to the University of Zululand

1.1.1 University Vision and Mission Statement

1.2 Information relevant to the Faculty Commerce, Administration & Law

1.2.1 Faculty Vision and mission Statement

1.3 Information relevant to the LLB degree

1.3.1 Accreditation

1.3.2 LLB policy and rules

1.3.3 Assessment policy

1.4 Information relating to the module: Law of Persons (LPLP101)

1.4.1 Welcome statement

1.4.2 Module personnel

1.4.3 Module resources

1.4.4 Lecturing slots and venues

1.4.5 Tutorials

1.4.6 Consultation hours and communications with lecturer

1.4.7 How to use this study guide

Module Content

Part 2: Beginning and End of legal personality

2.1 Introduction to Law of Persons

2.2 The beginning of legal personality

2.2.1 The Nasciturus fiction

2.3 The end of legal personality

Part 3: Factors determining Status

3.1 Status & Domicile

3.2 Children born from Unmarried parents

3.5 Minority

3.5.1 Status of an infant

3.5.2 Status of a minor

3.6 Mental illness

3.7 Inability to manage own affairs

3.8 Influence of alcohol and drugs

3.9 Prodigality

3.10 Insolvency

Part 1: Relevant Information

1.1 Information relevant to the University of Zululand

The University of Zululand is restructured for relevance and advocates a career focused education with emphasis on meeting the needs of its rural and rustic environment, as well as its commitment to commerce and industry. All degrees and programmes of the Faculty of Commerce, Administration & Law are accredited by the Council on Higher Education (CHE) and registered with (South African Qualifications Authority (SAQA).

1.1.1 University Vision and Mission Statement

Vision: The University of Zululand will be the leading rural-based comprehensive university providing quality, career-focused undergraduate and post graduate education, including research in the social and natural sciences, in partnership with the local and global community.

Mission: To provide access to students from diverse backgrounds to an enabling and caring learning and teaching environment; to offer relevant programmes that are responsive to the development needs of society; to generate knowledge through research, disseminate it through publications, teaching and development, in partnership with the community.

1.2 Information relevant to the Faculty Commerce, Administration & Law

1.2.1 Faculty’s Vision and Mission Statement

Vision: The Faculty's vision is to be a Faculty of choice and relevance for commerce, administration, law and the local community in ensuring a supportive and caring ethos that contributes meaningfully to the quality of life of all who live in the region of KwaZulu Natal, South Africa and the African continent within the global context.

Mission: The Mission of the Faculty is therefore to continue providing relevant qualifications, training and development needs of commerce, industry, public sector, civil society and the non-governmental sectors through partnerships and by ensuring sustainable development through knowledge production, management and research in these and related fields.

1.3 Information relevant to the LLB degree

1.3.1 Rules of the LLB degree

1.3.1.1 The general rules for admission to a bachelor’s degree apply.

1.3.1.2 The minimum duration is four years; provided that this period may be reduced by credits given in terms of Rule 3; provided further that a student must pass at least sixteen law modules at this University in order to qualify for the degree.

1.3.1.3 Senate may credit a student with comparable modules passed at other universities or similar institutions, or may credit a student with specific modules on the basis of relevant prior learning and/or work experience; provided that such a student must pass at least sixteen prescribed law modules at this institution in order to qualify for the degree.

1.3.1.4 The assessment requirements for the programme and each module must be successfully completed. In order to complete a module successfully, a student must obtain a grade of between 50% and 100%.

1.3.1.5 To obtain the degree with a first class pass, a candidate shall complete the degree in the minimum prescribed duration of the curriculum and, in the case of part-time students, the minimum prescribed duration plus one year, AND obtain first-class passes or distinctions in at least sixteen modules prescribed for the last eight terms of the curriculum, AND a final grade aggregate of at least 60% for all modules prescribed for the degree.

1.3.1.6 To obtain the degree with distinction, a candidate shall complete the degree in the minimum prescribed duration of the curriculum and, in the case of part-time students, the minimum prescribed plus one year, AND obtain distinctions in at least sixteen modules prescribed for the last eight terms of the curriculum, AND obtain a final grade aggregate of at least 65% for all modules prescribed for the degree.

1.3.1.7 Candidates, who obtains a final grade of between 45% and 49% for a module, may be invited to a written or oral supplementary assessment at a date and time determined by the Vice-Dean (Law). A candidate who is successful in the supplementary assessment shall be credited with a pass of 50%.

1.3.2 Assessment Policy

1.3.2.1 Apart from other forms of assessment, at least two written assessments are to be conducted in respect of each module, one approximately halfway through the term, and the other at the end of the term. In addition a final assessment will be written in the second term.

1.3.2.2 The term assessment covers such parts of the work done as determined by the lecturer and the final assessment covers all the work done during the term.

1.3.2.3 Both assessments are of one lecture period (one hour) duration and for fifty marks.

1.3.2.4 In order to determine a student’s results in respect of a module, both a terms mark (TM) and the final assessment mark (FAM) are taken into account. This is in accordance with the principle of continuous assessment.

1.3.2.5 The TM incorporates the term assessment, and other forms of assessment (formative assessments) which a lecturer may conduct.

1.3.2.6 In calculating the result, the following formula is used: TM > FAM: both marks carry equal weights (50%).

1.3.2.7 For the purpose of recording a student’s performance, the following categories will apply: 0%-44%: Fail; 45-49%: Supplementary Assessment; 50-64%: Pass; 65-74%: First Class Pass; 75-100%: Pass With Distinction.

1.3.2.8 A student who obtained a result of between 45% and 49% qualifies for a supplementary assessment in terms of Faculty Rules.

1.3.2.9 A student who missed either of the written assessments cannot pass, except in the case where he/she missed the term assessment and obtained a mark of an at least thirty-six out of fifty for the final assessment. (That would give a result of fifty: 36 ÷ 5 x 7 = 50, 4).

1.3.2.10 Where a student misses one of the written assessments, admission to the aegrotat assessment is not automatic. In order to qualify, the student must comply with the following:

(a) Satisfy the Vice-Dean/Head (Acting-Head) of Department/Lecturer that he/she has a valid excuse for being absent (e.g. illness certified by a medical practitioner or death of a family member supported by a death certificate).

(b) He/she must have performed adequately in terms of other methods of assessment. This performance, together with the mark obtained in the one written assessment should justify a result of 45% (the mark required for a supplementary assessment).

1.3.2.11 The implication is that a student who misses both written assessments cannot pass the module.

1.3.3 Academic progress

1.3.3.1 Students must register for modules as prescribed in the Faculty Prospectus, as well as in the order prescribed by the curriculum.

1.3.3.2 A student may only register for prescribed autonomous modules (including law modules in the third and fourth terms of the first year) if he/she has either passed the modules prescribed for the first two terms of the first year, or has attended lectures in the modules as a registered student and participated in all prescribed assessments.

1.3.4 Overview of LLB Degree

Name of the Qualification: The Bachelor of Law degree

Rationale for the degree: In studying law, one embarks on the challenging process of becoming a member of one of the oldest and most rewarding professions that exists.

Legal training develops skills in the mastering of facts and theory as well as in logic explanation. A successful learner will acquire these qualities and discover them to be greatly to his/her advantage. The law graduate enjoys a status shared by few others and has a wide choice of careers; inter alia practice as a attorney, advocate, conveyance, notary, legal advisor, prosecutor, magistrate or judge among a variety of career choices.

Purpose and Outcome of the course:

The purpose of this course is to develop the ability of learners to use information to equip them with a sound knowledge of the theory and practice of the law of family related matters including:

· Equipping students with a basic understanding of legal concepts of family law.

· To deepen the learner understands of the purpose and social effects of family law in a changing socio-political context in a new South Africa.

· To enable a learner to apply the general principles of family law to real life problems, involving the application, interpretation and enforcement of the rights and obligations of each role player.

· Apply the theory acquired to draft elementary documents relating to family law as well as participate in mock divorce trials.

1.4 Information relating to the module: Law of Persons (LPLP101)

1.4.1 Welcoming statement

Welcome to the course LPLP 101 Law of Persons. The Law of Persons is a fascinating field of the law that has been the subject of great legislative attention, especially since 1979 with the Constitution of the Republic of South Africa 108 of 1996 influencing several aspects of private law.

It is imperative that students understand the fundamentals of law of persons to successfully execute their responsibilities as a legal practitioner and as such the module has been designed in such a manner to teach you the basic principles of law of persons and to equip you with the necessary knowledge, skills, and competencies to analyse and solve the most common problems relating to the law of persons.

Law of Persons is relevant and every day, as from your relations with your parent/s (parent-child relationship) to the family unit which is created by people who enter into a marriage-like relationship. It forms part of private law which determines which entities are legal subjects, when legal responsibility begin and ends, what legal status involves, and what effect various factors( such as extra-marital birth, minority, and mental incapacity) have on a person’s legal status.

From a teaching perspective, this module will afford you the chance to develop your potential through participation in class discussion and individual assessment. The teaching method will therefore be interactive rather than lecturer-focused. Active participation and in-class problem solving shall be rewarded by way of inclusion in the calculation of the semester mark. The guiding principle in this module is that there is no right or wrong answer but rather potential answers which are subject to further qualification.

There is no ‘easy’ way. Put in the work and you will do well in the course. Good luck with your studies.

1.4.2 Module personnel

Module leader: Mrs. L Ramaccio Calvino

Contact details: Room 307, D Block

Contact Number: Extension 6212

Consultation Hours: To be announced & by notice

Head of Department: Dr. W Ndaba

Room 312, D Block

Law Dept Secretary: Mrs M Mthiyane

Law Dean’s Office

Contact Number: Extension 6212

bmkhwan@pan.uzulu.zc.za

1.4.3 Module resources

Study Guide: This is the key learning resource. It is divided into modules, each of which focuses on specific aspects of The law of Persons. Each module lists learning objectives and provides guidance for the use of your text.

Text: Heaton J, South African Law of Persons, 2008, 3rd ed, Lexis Nexis, DURBAN.

Heaton J, Casebook on the South African law of persons, 2008, 3^rd ed, Lexis Nexis, DURBAN.

Alternative text: The Law of Persons in South Africa, 2010, Oxford University Press South Africa (Pty) Ltd, CAPE TOWN.

1.4.4 Lecturing slots & Communication with lecturer

The lecturing slots and venues, as well as consulting hours will be published on a notice affixed to Room 307, Block D as well as posted on the LPLP101 blogpage. Students are invited to consult with the module lecturer during her consulting hours. Unless prior arrangements are made with the lecturer, she will NOT consult with any students outside her consulting hours.

1.4.5 Tutorials

Tutorials are mandatory in this module. At the beginning of the semester the registered students for the module will be divided into tutorial groups. Each group will be appointed a tutor, whom will be keeping a register of each tutorial class. During tutorials tutorial questions will be discussed and revision will be done to assist students in understanding the module content. As indicated before, tutorial questions may also be marked and such marks may be used in calculating the semester mark. Please use tutorials professionally and with the intention of increasing your knowledge of the subject matter. Tutorials will be delivered in accordance with each tutor’s tutorial slots.

1.4.6 Assessment scheme

The objectives of this course are outlined in the course specification. You objectives will be assessed via two assessments and an end-of-semester examination worth 50% of the final mark. Assessment 1 is worth 25% and assesses modules 1–3. Assessment 2 is worth 25% and assesses modules 4-6.

A minimum semester mark of 40% will be a pre-requirement for being allowed to write the final examination. Please furthermore note that should you qualify for re-assessments, students will be required to write during the first week of the following semester for students that obtained a module mark of 45%-49%. Should you not write the re-assessment as per the date reflected by the university time table, you will forfeit the re-assessment opportunity.

It is also your responsibility to ensure that you are registered for the correct module prior to the date of the first assessment. If you are not registered for the module your assessments will not be marked.

In studying this course you should also focus upon the learning objectives specified at the commencement of each module in the study book. They form the basis for your readings and revision of each topic.

Examination

Examination techniques

Most courses include an end-of-semester examination as part of the assessment. The formal examination requires you to demonstrate your learning to the lecturer. If you have followed our suggestions about studying, you will be well on your way to success. Here are a few additional points to help you with your exams.

Preparing for examinations

It is a good idea to begin revising the semester’s materials at least two or three weeks before the examination. That way, you have time to put in a bit of extra effort on areas you are not quite certain of. Here are some extra points to help you.

Revise your notes. Go over the notes you have made for yourself during your study. Make sure that you see the relationship between the key points that you have written down, and the related details.

Get together. If possible, get together with others studying the same course. Discuss each point. Quiz each other.

Review ‘past examination papers’. You can use same as a ‘trial run’ to get an idea of working within a strict time limit. Past examination papers may give you an idea of the kind of questions that might be asked. But don’t place too much emphasis on them as lecturer can ask different styles of questions.

Review assignments. Go over previous assignments. If you did not do well, look at the lecturer’s comments/feedback to find out where you went wrong.

Get to bed in good time. Don’t stay up revising all of the night before the exam. Get a good night’s sleep so that you are alert and at your best. And don’t skimp on meals before the exam. Mental exertion is just as dependent on a healthy body as is physical exertion.

Confirm examination mode. Come prepared with all necessary equipment.

In your examination

Time planning:

Just as you plan how you will use your weekly study time, so too should you plan your time in the examination. Here are some guidelines on how to use your time effectively in your examination.

· Try to leave yourself sufficient time at the end of the examination to check over your work and make any last-minute corrections.

· If all questions have equal weight, plan to take about the same amount of time with each one. If the questions have unequal weighting, spend more time on those questions with many marks, and less time on the ones with fewer marks.

· In multiple choice questions, don’t spend too much time on questions you can’t answer easily or quickly. Go ahead and answer the others first, leaving yourself sufficient time to return to those that you are unsure of.

Hints on answering questions:

Here are few hints to help you in answering questions.

· Write legibly. Even with the best will in the world, a marker cannot give you credit if your writing cannot be read.

· In answering essay questions, make certain that your essay is well organised and grammatically correct. It will pay dividends to spend a few minutes planning your essay before you begin writing.

· Make sure that you answer the question asked. Underline the key words in the question, and underline the verb. This will help you to focus on the essence of the question.

Be committed: Try to build your study plan around fixed time commitments – the time that you must give to your essential daily activities such as family, eating and sleeping, recreation and leisure.

Be realistic: Try to be realistic in planning your study time. You will probably have to give up some of the things you do to make time for study. On the other hand, most people need recreation, and find it easier to stick to a schedule if they specifically include time for sport, leisure, or other relaxation.

Study every day: Study is easier if you spread the work out, rather than trying to cram it all into one or two days. Also, research has shown that you learn better and remember more if you spread out your studying.

Your concentration span: Most people find that it is difficult to concentrate for long periods. If you must study for a long period of time, be sure to take a break every hour for a few minutes.

Your study timetable: Find out what time of day you study best. Some people are most alert early in the morning, some in the afternoon and others late at night. For example, if you are a ‘morning person’, try to schedule an hour or two of study in the early morning before you go to work, or before the rest of the family is out of bed.

Set realistic goals: But set goals! Before you begin a study period, decide what it is you intend to accomplish. It may be to summarize one chapter, to write two pages of an essay. And give yourself a pat on the back when you have completed your assigned task.

Set good habits: Get in the habit of beginning work as soon as you sit at your study table. Do not use part of your study time for other things, such as straightening your room or alphabetizing your books.

Review your work: At the end of each study period, review the work that you have done, and if necessary modify your study plan. At the end of each week, plan your timetable for the week ahead.

Study Strategies: Studying refers to all that you do in order to learn something. Here are some suggestions to help you study effectively.

Be active: Be actively involved with the things that you are trying to learn. For example, write key points in your own words. Try to relate your study to your own experience, whether it be at home, or elsewhere.

Avoid compartmentalization: Try to see the relationships among different modules in a course, and different courses in your program. The more you seek for and find connections among the things that you study, the more sense they will make and the easier they will be to remember.

Use memory aids: List the major points in each module of a study book or chapter of a textbook. These major points form the ‘framework’ of the course. If you understand the framework, you will find it easier to remember the details.

o Some students write important points on cards and go through them from time to time. Others write a detailed outline and pin it up on a wall by their study table. Such visible reminders are a simple and efficient way to help you memorize basic facts.

Form study groups: Form a study group with other students. Ask for help or to get a fresh point of view. You will find that trying to explain something to another person is one of the very best ways to learn it yourself.

Part 2: Module Content

	Module	Activity	Assess- ment
1	Introduction to law of Persons. Learning Objectives: Be able to explain what law of persons relates to; Be able to explain the different kinds of legal subjects; Understand and explain the concept monstrum; Be able to list the entities that are recognized as juristic persons in South African law.	Text: Chapter 1
2	The beginning and end of legal personality Prescribed Case law: Ex parte Boedel Steenkamp (casebook 1); Christian Lawyers Association of SA v The Minister of Health (casebook 3); RAF v M obo M (casebook 2); Christian Lawyers Association v Minister of Health (casebook 4); Re Beaglehole (casebook 5); Ex Parte Pieters (casebook 6). Learning Objectives: Be able to list the legal requirements for the beginning of legal personality; Be able to explain how it is determined when a child is born alive after birth; Define the concept “viability” and explain if it is a requirement for the beginning of legal personality; Briefly summarize the relevant sections of the Births and Deaths Registration Act, act 51 of 1992 that deal with the registration of births. Define nasciturus fiction; Discuss the requirements for the fiction to come into operation; Discuss the interests in respect of which the fiction has been applied in our law; Consider the question whether the nasciturus is a legal subject; Differentiate between the nasciturus fiction and rule; Explain how the moment of death is determined and how death is proved; Discuss the common-law as well as the statutory presumption of death orders; Explain the effect of a presumption of death order; Discuss the presumption regarding the sequence of death; Explain the procedure in registering a death and the duty to bury. Proposed questions: Analyse whether the umbilicus cord must be severed for birth to be completed; Explain how it is determined whether a child lived after birth; Heaton is of the opinion that viability is not a requirement for the beginning of legal personality. What objections does she have to this requirement; Discuss the relevant legal principles and their application with reference to authority; Apply the nasciturus fiction principle to a given set of facts with reference to authority; Differentiate between testate and intestate succession; Explain whether a women’s right to have her pregnancy terminated infringes on her unborn child’s right to life; Mr X has been missing for 10 years. What can Mrs X do to finalize her husband’s estate and will Mrs X be able to get re-married; What is the effect of a presumption of death expressed in terms of sec 18 of the Inquest Act, act 58 of 1959?	Text: Chapters 2
3	Status & Domicile Learning Objectives: Understand what is meant by status, legal capacity, capacity to act, capacity to litigate and capacity to be held accountable for crimes and delicts; Explain the concept domicile and the importance of domicile and the general principle governing domicile; Identified the different kinds of domicile and apply the principles to a given set of facts with reference to authority. Proposed Questions: List the different components of the definition of domicile; Can a person relinquish his previous domicile before acquiring a new domicile? What is the courts understanding of “permanently” resident? John is 6 years old and stays in Soweto with his mother. Where is John domiciled? Can a prohibited immigrant acquire a domicile of choice in the country where he is unlawfully present?	Text: Chapters 3 &4	Assess- ment 1
4	Children born from unmarried parents Case Law: J v Director General, Department of Home Affairs ( casebook 15); M v R ( casebook 19); S v L ( casebook 20); F v L; Fraser v Children’s Court, Pretoria North (casebook 22); Motan v Jooste ( casebook 23); Petersen v Maintenance officer( casebook 24). Learning Outcome: Explain the concept “ child born of unmarried parents”; Identify the categories of children born of unmarried parents recognized by our law; Explain the status of a child conceived by artificial fertilization; Explain the presumption of paternity that exist in terms of married and unmarried fathers; Explain the rebuttable presumptions in respect of paternity. Explain the legal relationship between a child and his unmarried parents; Explain the ways in which the status of a child can be changed. Proposed Questions: Mr and Mrs X are married. Mrs X has an extra-marital affair with Mr Y and a child (Z) is born as a result of same. Who is responsible for maintaining Z? What do you understand by exception plurium concubentium? With reference to case law explain whether a court can compel adults and children to undergo blood and tissue tests; Explain the parental rights and responsibilities in respect of a child born of an unmarried mother.	Text: Chapters 5
5	Minority Case law: Edelstein v Edelstein (casebook 32); Louw v MJ & H Trust (casebook 31); Wood v Davies (casebook 33); Dickens v Daley (casebook 39); Watson v Koen (casebook 42). Learning Outcome: Explain how the Constitution and the Children’s Act protect the rights of children; Define the following concepts: agreement, contract, contractual liability, obligation, civil obligation, natural obligation, unilateral contract, reciprocal contract; Explain what is required before a person acquires capacity to perform a valid juristic act; Differentiate between an infant and a minor; Explain how a minor may ratify a contract which he concluded without assistance of his guardian and the effect of ratification; Explain when a minor’s guardian can be held personally liable and explain statutory exceptions to the rule that a minor cannot incur contractual liability without the assistance of his guardian; Explain the position in the case where a minor has claimed to have had capacity to enter into a contract; Explain unjustified enrichment and how the remedy operates in the case of contracts between minors, acting without assistance; Explain restitution in integrum; Explain whether a minor can be a witness to a will, make an agreement other than a contract, marry, receive medical treatment, hold office or can be held liable for crimes and delicts; Explain under what circumstances minority terminates; Define the concept emancipation, and differentiate between express and tacit emancipation; Explain whether an emancipated minor can claim restitutio in integrum? Proposed Questions: Do restrictions on a minor’s capacity amount to unfair discrimination on the ground of age? Discuss Sec 28 of the Constitution as well as the provisions of the Children’s Act that protects the rights of children; Explain the legal principles that deal with the capacity to litigate and delictual and criminal liability of the infant and apply the principles to a set of facts; Explain the general rule of a minor’s capacity to enter into a contract and explain the juristic consequences of a contract which a minor has concluded without the assistance of his guardian; Can an antenuptial contract which was concluded by an unassisted minor be ratified? Suppose Pete (16 years old) buys a motorbike for R 2000 from Dan (a major), without the necessary assistance of his guardian. The motorbike is worth R 1500-00. After Dan delivers the motorbike, Pete refuses to pay him. Pete sells the motorbike for R 1000 on 3 March. Dan institutes a claim against Pete on the ground of unjustified enrichment on 20 March. Discuss what amount Pete is liable for. Suppose Pete sold the bike on 30 March, what amount would he be liable for? Suppose the motorbike was stolen on 10 March, what amount would he be liable for? Explain restitution in integrum where a minor can escape contractual liability; Does venia aetatis still exist in SA law – motivate your answer; Can a minor’s guardian revoke emancipation? On whom does the onus of proving tacit emancipation rest?	Text: Chapters 6
6	Mental Illness Learning Objectives: Explain how mental illness effects a person’s status; Explain the procedure in declaring a person mentally ill in terms of the Mental Health Care Act, act 17 of 2002 as well as the rights of mental health care user’s in terms of the Mental Health Care Act. Proposed Questions: How does the Supreme Court of appeal define mental illness? How is mental illness proven? What effect does mental illness have on a person’s status; Does the mere fact that a curator bonis has been appointed to administer a mentally ill person’s estate mean that the person has no capacity to act, even during a lucidum intervallum? Refer to authority in substantiating your answer.	Text: Chapters 7	Assess- ment 2
7	Inability to manage own affairs, influence of alcohol and drugs Learning Objectives: Explain how a person’s inability to manage his own affairs affects his capacity to act; Explain how intoxication affects a person’s capacity to act. Proposed Questions: Explain how a person’s inability to manage his own affairs owing to physical or mental disability affects his status. Explain how intoxication can affect a person’s capacity to act.	Text: Chapters 8&9
8	Prodigality, Insolvency Learning Objectives: Explain the procedure in having a person declared a prodigal and how a declaration of prodigality affects a person’s status; How does insolvency affect a person’s status? Proposed Questions: What do you understand by “prodigal”? Are the limitations placed on prodigals unconstitutional, motivate your answer by referring to authority. Explain the effect that sequestration of a person’s estate has on his status.	Text: Chapters 10 & 11
9.	Examination	Chapters 1-11	As per the Examina- tion Schedule

Study Guideline compiled by:

Mrs. L Ramaccio Calvino

Admitted Attorney of South Africa

Lecturer - Private Law

Faculty Administration, Commerce & Law

University of Zululand

Block D - Room 307

KWADLANGEZWA

Telephone Number: 035-9026335

Law of Persons

Wednesday, 6 November 2013

STUDY GUIDE 2014