Theme 5 Flashcards
What does the end of legal subject do to personality?
If a legal subject ceases to have a legal personality then it cannot be the bearer of rights, duties, and capacities
How does a juristic person’s personality come to an end?
The legal personality of a juristic person generally comes to an end when the formal requirements for its end are present or created either in terms of statute or in terms of the common law
What section of the Close Corporations Act and Companies Act causes an end in juristic personality?
Jurist person ends as stated in Close Corporation Act s26 and s27. Companies Act s79-s83, states that legal personality ceases when statutory procedures are complied with and they are deregistered or dissolved
How does a natural persons legal personality end?
The legal personality of a natural person terminates when through death. Being dead in itself ends legal personality, proof of death upon a particular standard and acceptable to the legal authority must be provided before legal personality is terminated by the legal authority.
What does section 15 of the Births and Registration Act state?
According to section 15 of the Birth and Deaths Registration Act, evidence of the physical death of a person usually takes the form of a certificate signed by a medical doctor.
What does section 22 of the Births and Registration Act state?
According to section 22 of the Birth and Deaths Registration Act, upon receipt of this certificate, the Department of Home Affairs issues a formal death certificate, which is prima facie proof of death
How does legal personality end when there is nobody?
In cases where no one has seen the dead body, the court uses the presumption of death mechanism, this is through common law and the Inquest Act.
What is the difference between the common law presumption and the inquest presumption?
The common law is final order is made on a balance of probabilities and the Inquest Act is confirmed on a standard of proof beyond a reasonable doubt.
What does the common law presumption of death mean?
The common law presumption of death means that a party goes to court to declare a person dead.
What is the procedure to the common law presumption of death?
- Triggered by disappearance.
- Interested party launches the application
- The court uses its discretion to decide on a balance of probabilities whether the person in question must be declared dead
What is the rule of nisi?
Rule of nisi states that a preliminary order of its intention to make a final order within a specific time frame and this allows for further evidence to be presented or for other interested parties to come forward and supply relevant information.
What was held in the Govender case?
An interested party must prove on a balance of probabilities that the missing person can be presumed dead as stated in Govender. It was held that a suicide note alone is not sufficient to grant a presumption of death, but will be considered by the court.
What was stated in Re Beaglehole?
In Re Beaglehole, it shows that it’s within the court’s discretion whether to grant a presumption of death after considering all the relevant facts and circumstances.
What is the court’s discretion based on as stated in the Re Beaglehole case?
The court’s discretion is based on but not limited to:
- Age of the person who has disappeared.
- The length of time they are missing
- Financial consequences
- Position in life - health risks
- Exposure to special risk/danger- personal and presence of danger
- Occupation
What is found in Ex parte James case?
In Ex parte James, the fact that Mr James had embezzled money and was in debt made the court suspicious about his apparent disappearance, as several people saw him the day he went supposedly missing. Therefore, the court held that they would not grant a presumption of death order unless it had enough evidence.
