END OF LEGAL SUBJECTIVITY

Question 1

DISSOLUTION OF MARRIAGES ON PRESUMPTION OF DEATH ACT, 1979

When may a court declare certain marriages to be dissolved?

Answer 1

Upon application by the spouse

In such case the marriage be deemed dissolved by death->date of death given by court.

Question 2

EX PARTE GOVENDER

Facts

Answer 2

Mr G. disappeared almost 8 years before case.
Applicant=wife->seeks order for presuming his death.
Judge feels not sufficient evidence: simply disappearance, and absence from scene.
Application suggests that husband likely commit suicide after disappearance->financial trouble, gambling, note found in his jacket pocket, in his handwriting and signature
Problem is that it dated 5 months before disappears->rare to have suicide without body found, even if jumped into sea, the body would turn up sooner or later->he did not leave the note where it would be obviously be found, but it was rather concealed.
In this case, the rule of nisi is discharged.

Question 3

WHEN DOES LEGAL SUBJECTIVITY END?

Answer 3

With death

Question 4

WHAT IS THE LEGAL SIGNIFICANCE OF THE END OF LEGAL SUBJECTIVITY?

Answer 4

No rights or duties

Relevant for loved ones->in terms of succession, inheritance, remarriage

Question 5

PRESUMPTION OF DEATH

Answer 5

No body
Only circumstantial evidence-> then court use POD mechanism—>2 procedures available: common law procedure and statutory law procedure in terms of the Inquest Act

Question 6

CONSEQUENCES OF POD?

Answer 6

Not declared dead, but rebuttable presumption
Estate divided
Remaining may remarry

Question 7

RETURNING FROM THE DEAD?

Answer 7

When there evidence that person probably alive, POD revoked

Person can apply to HC for POD to get set aside->any interested party can apply

Question 8

WHEN CAN POD ORDER NOT BE RESERVED?

Answer 8

Dissolved marriage
Patrimony also consequences can be reserved
Inheritances must be retuned
Berger case is relevant here